Download The Final Frontier: The Law of the Sea Convention and Areas

TULANE LAW SCHOOL
Rhodes, Greece
Maritime Law, Law of the Sea
& Ocean Management
SUMMER, 2015
LGRC-4720-01 The Management of Marine
Resources beyond National Jurisdiction
Professor Freestone
These materials are intended for classroom and study purposes only for students
enrolled in Tulane’s Rhodes Summer Program and may not be reproduced.
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Rhodes Academy 2015
Lecture Outline and Reading
The Management of Marine Resources in Areas beyond National Jurisdiction Professor
David Freestone
The legal regime for areas beyond national jurisdiction (ABNJ) has been described as
‘fractured.’ For the last decade an Ad Hoc Working Group established by the UN General
Assembly has been studying the issue involved in the conservation of biodiversity in ABNJ
(so called BBNJ Working Group) and is expected to recommend this year that negotiations
begin for a third Implementing Agreement to the 1982 UN Convention on the Law of the sea
(1982 Convention).
This course of lectures will start by flagging why the current regime governing ANBJ is
problematic. It will then examine in detail the current legal regime and the various sectoral
and regional bodies that have jurisdiction over diverse activities from deep seabed
exploration and mining to fishing, maritime transport and the conservation of species and
biodiversity.
It will then look at the arguments surrounding the development of a possible new
Implementing Agreement to the 1982 Convention and it possible or probably content. It will
also look at a number of initiatives – including the OSPAR Convention and the Sargasso Sea
Commission – that are attempting to seek protection for unique high seas ecosystems in
advance of the long negotiating process that a new agreement may entail.
Lecture One
Introduction: Problems of High Seas Governance
Reading
1982 Law of the Sea Convention
Part VII Arts 86-89; 116-120
Part XII Arts 192-206.
Freestone (2011) pp. 1-23 or Freestone (2012)pp 1-15
Freestone (2009) pp 1-10
Lecture Two
The Current High Seas Governance Regime- Sectoral Organizations
Reading
Freestone (2015) pp 1-26
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Lecture Three
The Current High Seas Governance Regime- Regional Organizations
Reading
Freestone (2010) pp. 1-10
Warner et al., (2014) pp 211-224.
Lecture Four
The Role of the Convention on Biological Diversity and the “Description” of Ecologically
and Biologically Significant Areas
Reading
CBD (2009) Azores Scientific Criteria and Guidance
https://www.cbd.int/doc/meetings/mar/ebsaws-2014-01/other/ebsaws-2014-01-azoresbrochure-en.pdf
http://www.ioseaturtles.org/pom_detail.php?id=120
Lecture Five
Sargasso Sea Project
Reading
Freestone et al., (2012) pp. 647-655
Freestone et al., (2015) pp. 21-26
Laffoley et al (2011) (review only)
at http://www.sargassoalliance.org/storage/documents/Sargasso.Report.9.12.pdf
Lecture Six
The UNGA and a New Implementing Agreement
Reading
BBNJ (2015)
Freestone et al. (2014) pp. 167- 175
Freestone (2015) pp. 7-9
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Full Reading list (page numbers in bold)
Law of the Sea Convention 1982 [pgs. 5-12]
Part VII Arts 86-89; 116-120
Part XII Arts 192-206.
BBNJ (2015) UN Doc A/69/780: Letter dated 13 February 2015 from the Co-Chairs of the Ad
Hoc Open-ended Informal Working Group to the President of the General Assembly
[pgs. 13-21]
CBD (2009) AZORES SCIENTIFIC CRITERIA AND GUIDANCE for identifying ecologically or
biologically significant marine areas and designing representative networks of marine
protected areas in open ocean waters and deep sea habitats. 10 pp [pgs. 22-33]
Freestone (2009) “High Seas Fisheries” in Max Planck Encyclopedia of Public International
Law (Rüdiger Wolfrum, ed.) OUP, 2009, 12pp. [pgs. 34-46]
Freestone (2010) “International Fisheries Commissions and Organizations” in Max Planck
Encyclopedia of Public International Law (Rüdiger Wolfrum, ed.) OUP, 2010, 10pp.
[pgs. 47-58]
Freestone (2011) David Freestone “Problems of High Seas Governance” in The World Ocean
in Globalisation: Challenges and Responses, (Davor Vidas and Peter Johan Schei, eds.)
Martinus Nijhoff, 2011, pp. 99-130. [pgs. 59-90]
Freestone et al., (2012) David Freestone and Kate Morrison (2012) “The Sargasso Sea
Alliance: Seeking to Protect the Sargasso Sea.” (2012) 27 International Journal of Marine and
Coastal Law pp. 647-655 [pgs. 91-100]
Freestone (2013) David Freestone, “The Final Frontier: The Law of the Sea Convention and
Areas beyond National Jurisdiction” in Proceedings of the 2012 Law of the Sea Institute
Conference on Securing the Ocean for the Next Generation. Volume 1, Law of the Sea Institute
Conference Papers Series, Martinus Nijhoff, 2013, pp. 1-15. [pgs. 101-115]
Freestone and Morrison (2014) David Freestone and Kate Morrison (2014) “The Signing of
the Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea: A new
paradigm for high seas conservation?” (2014) 28 International Journal of Marine and Coastal
Law pp 345-362. [pgs. 116-133]
Freestone et al., (2014) David Freestone with David Johnson, Jeff Ardron, Sebastian Unger,
and Kate Morrison (2014), “Can existing institutions protect biodiversity in areas beyond
national jurisdiction? Experiences from two on-going processes” (2014) 42 Marine Policy pp.
167-175. [pgs. 134-142]
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Freestone (2015) David Freestone (2015) “Governance of Areas beyond National
Jurisdiction: An Unfinished Agenda of the 1982 Convention?” in Proceedings of International
Conference: UNCLOS at 30, British Institute of International and Comparative Law, London,
2015, Belfast. 30pp. [pgs. 143-168]
Dan Laffoley et al., (2011) The Protection and Management of the Sargasso Sea: The golden floating
rainforest of the Atlantic Ocean. http://www.sargassoseacommission.org
Warner et al., (2014) Robin Warner, Kristina Gjerde and David Freestone (2014) “Regional
Governance for Fisheries and Biodiversity” in Governance for Fisheries and Marine
Conservation: interactions and co-evolution. (S.M. Garcia, J. Rice, and A.T. Charles, eds.) WileyBlackwell, 2014, pp. 211-224. [pgs. 169-182]
Key Websites
http://www.un.org/depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm
http://www.cbd.int/ebsa/
http://www.sargassoseacommission.org
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PART VII
HIGH SEAS
SECTION 1. GENERAL PROVISIONS
Article 86
Application of the provisions of this Part
The provisions of this Part apply to all parts of the sea that are not
included in the exclusive economic zone, in the territorial sea or in the
internal waters of a State, or in the archipelagic waters of an archipelagic
State. This article does not entail any abridgement of the freedoms enjoyed
by all States in the exclusive economic zone in accordance with article 58.
Article 87
Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked.
Freedom of the high seas is exercised under the conditions laid down by this
Convention and by other rules of international law. It comprises, inter alia,
both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to
Part VI;
(d) freedom to construct artificial islands and other installations
permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in
section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for
the interests of other States in their exercise of the freedom of the high seas,
and also with due regard for the rights under this Convention with respect to
activities in the Area.
Article 88
Reservation of the high seas for peaceful purposes
The high seas shall be reserved for peaceful purposes.
Article 89
Invalidity of claims of sovereignty over the high seas
No State may validly purport to subject any part of the high seas to its
sovereignty.
Article 90
Right of navigation
Every State, whether coastal or land-locked, has the right to sail ships
flying its flag on the high seas.
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Article 114
Breaking or injury by owners of a submarine cable or pipeline
of another submarine cable or pipeline
Every State shall adopt the laws and regulations necessary to provide
that, if persons subject to its jurisdiction who are the owners of a submarine
cable or pipeline beneath the high seas, in laying or repairing that cable or
pipeline, cause a break in or injury to another cable or pipeline, they shall
bear the cost of the repairs.
Article 115
Indemnity for loss incurred in avoiding injury
to a submarine cable or pipeline
Every State shall adopt the laws and regulations necessary to ensure that
the owners of ships who can prove that they have sacrificed an anchor, a net
or any other fishing gear, in order to avoid injuring a submarine cable or
pipeline, shall be indemnified by the owner of the cable or pipeline, provided
that the owner of the ship has taken all reasonable precautionary measures
beforehand.
SECTION 2. CONSERVATION AND MANAGEMENT OF THE
LIVING RESOURCES OF THE HIGH SEAS
Article 116
Right to fish on the high seas
All States have the right for their nationals to engage in fishing on the
high seas subject to:
(a) their treaty obligations;
(b) the rights and duties as well as the interests of coastal States
provided for, inter alia, in article 63, paragraph 2, and articles 64
to 67; and
(c) the provisions of this section.
Article 117
Duty of States to adopt with respect to their nationals
measures for the conservation of the living resources of the high seas
All States have the duty to take, or to cooperate with other States in
taking, such measures for their respective nationals as may be necessary for
the conservation of the living resources of the high seas.
Article 118
Cooperation of States in the conservation and management
of living resources
States shall cooperate with each other in the conservation and
management of living resources in the areas of the high seas. States whose
nationals exploit identical living resources, or different living resources in the
same area, shall enter into negotiations with a view to taking the measures
necessary for the conservation of the living resources concerned. They shall,
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as appropriate, cooperate to establish subregional or regional fisheries
organizations to this end.
Article 119
Conservation of the living resources of the high seas
1. In determining the allowable catch and establishing other
conservation measures for the living resources in the high seas, States shall:
(a) take measures which are designed, on the best scientific
evidence available to the States concerned, to maintain or
restore populations of harvested species at levels which can
produce the maximum sustainable yield, as qualified by relevant
environmental and economic factors, including the special
requirements of developing States, and taking into account
fishing patterns, the interdependence of stocks and any
generally recommended international minimum standards,
whether subregional, regional or global;
(b) take into consideration the effects on species associated with or
dependent upon harvested species with a view to maintaining or
restoring populations of such associated or dependent species
above levels at which their reproduction may become seriously
threatened.
2. Available scientific information, catch and fishing effort statistics,
and other data relevant to the conservation of fish stocks shall be contributed
and exchanged on a regular basis through competent international
organizations, whether subregional, regional or global, where appropriate and
with participation by all States concerned.
3. States concerned shall ensure that conservation measures and their
implementation do not discriminate in form or in fact against the fishermen
of any State.
Article 120
Marine mammals
Article 65 also applies to the conservation and management of marine
mammals in the high seas.
PART VIII
REGIME OF ISLANDS
Article 121
Regime of islands
1. An island is a naturally formed area of land, surrounded by water,
which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf of an
island are determined in accordance with the provisions of this Convention
applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of
their own shall have no exclusive economic zone or continental shelf.
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100
2. If an action is brought against a State Party by a natural or juridical
person sponsored by another State Party in a dispute referred to in article 187,
subparagraph (c), the respondent State may request the State sponsoring that
person to appear in the proceedings on behalf of that person. Failing such
appearance, the respondent State may arrange to be represented by a juridical
person of its nationality.
Article 191
Advisory opinions
The Seabed Disputes Chamber shall give advisory opinions at the request
of the Assembly or the Council on legal questions arising within the scope of
their activities. Such opinions shall be given as a matter of urgency.
PART XII
PROTECTION AND PRESERVATION
OF THE MARINE ENVIRONMENT
SECTION 1. GENERAL PROVISIONS
Article 192
General obligation
States have the obligation to protect and preserve the marine
environment.
Article 193
Sovereign right of States to exploit their natural resources
States have the sovereign right to exploit their natural resources pursuant
to their environmental policies and in accordance with their duty to protect
and preserve the marine environment.
Article 194
Measures to prevent, reduce and control pollution
of the marine environment
1. States shall take, individually or jointly as appropriate, all measures
consistent with this Convention that are necessary to prevent, reduce and
control pollution of the marine environment from any source, using for this
purpose the best practicable means at their disposal and in accordance with
their capabilities, and they shall endeavour to harmonize their policies in this
connection.
2. States shall take all measures necessary to ensure that activities
under their jurisdiction or control are so conducted as not to cause damage by
pollution to other States and their environment, and that pollution arising
from incidents or activities under their jurisdiction or control does not spread
beyond the areas where they exercise sovereign rights in accordance with this
Convention.
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3. The measures taken pursuant to this Part shall deal with all sources
of pollution of the marine environment. These measures shall include,
inter alia, those designed to minimize to the fullest possible extent:
(a) the release of toxic, harmful or noxious substances, especially
those which are persistent, from land-based sources, from or
through the atmosphere or by dumping;
(b) pollution from vessels, in particular measures for preventing
accidents and dealing with emergencies, ensuring the safety of
operations at sea, preventing intentional and unintentional
discharges, and regulating the design, construction, equipment,
operation and manning of vessels;
(c) pollution from installations and devices used in exploration or
exploitation of the natural resources of the seabed and subsoil,
in particular measures for preventing accidents and dealing with
emergencies, ensuring the safety of operations at sea, and
regulating the design, construction, equipment, operation and
manning of such installations or devices;
(d) pollution from other installations and devices operating in the
marine environment, in particular measures for preventing
accidents and dealing with emergencies, ensuring the safety of
operations at sea, and regulating the design, construction,
equipment, operation and manning of such installations or
devices.
4. In taking measures to prevent, reduce or control pollution of the
marine environment, States shall refrain from unjustifiable interference with
activities carried out by other States in the exercise of their rights and in
pursuance of their duties in conformity with this Convention.
5. The measures taken in accordance with this Part shall include those
necessary to protect and preserve rare or fragile ecosystems as well as the
habitat of depleted, threatened or endangered species and other forms of
marine life.
Article 195
Duty not to transfer damage or hazards
or transform one type of pollution into another
In taking measures to prevent, reduce and control pollution of the marine
environment, States shall act so as not to transfer, directly or indirectly,
damage or hazards from one area to another or transform one type of
pollution into another.
Article 196
Use of technologies or introduction of alien or new species
1. States shall take all measures necessary to prevent, reduce and
control pollution of the marine environment resulting from the use of
technologies under their jurisdiction or control, or the intentional or
accidental introduction of species, alien or new, to a particular part of the
marine environment, which may cause significant and harmful changes
thereto.
2. This article does not affect the application of this Convention
regarding the prevention, reduction and control of pollution of the marine
environment.
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SECTION 2. GLOBAL AND REGIONAL COOPERATION
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional
basis, directly or through competent international organizations, in
formulating and elaborating international rules, standards and recommended
practices and procedures consistent with this Convention, for the protection
and preservation of the marine environment, taking into account characteristic
regional features.
Article 198
Notification of imminent or actual damage
When a State becomes aware of cases in which the marine environment
is in imminent danger of being damaged or has been damaged by pollution,
it shall immediately notify other States it deems likely to be affected by such
damage, as well as the competent international organizations.
Article 199
Contingency plans against pollution
In the cases referred to in article 198, States in the area affected, in
accordance with their capabilities, and the competent international
organizations shall cooperate, to the extent possible, in eliminating the effects
of pollution and preventing or minimizing the damage. To this end, States
shall jointly develop and promote contingency plans for responding to
pollution incidents in the marine environment.
Article 200
Studies, research programmes and exchange of information and data
States shall cooperate, directly or through competent international
organizations, for the purpose of promoting studies, undertaking programmes
of scientific research and encouraging the exchange of information and data
acquired about pollution of the marine environment. They shall endeavour
to participate actively in regional and global programmes to acquire
knowledge for the assessment of the nature and extent of pollution, exposure
to it, and its pathways, risks and remedies.
Article 201
Scientific criteria for regulations
In the light of the information and data acquired pursuant to article 200,
States shall cooperate, directly or through competent international
organizations, in establishing appropriate scientific criteria for the
formulation and elaboration of rules, standards and recommended practices
and procedures for the prevention, reduction and control of pollution of the
marine environment.
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SECTION 3. TECHNICAL ASSISTANCE
Article 202
Scientific and technical assistance to developing States
States shall, directly or through competent international organizations:
(a) promote programmes of scientific, educational, technical and other
assistance to developing States for the protection and preservation
of the marine environment and the prevention, reduction and control
of marine pollution. Such assistance shall include, inter alia:
(i) training of their scientific and technical personnel;
(ii) facilitating their participation in relevant international
programmes;
(iii) supplying them with necessary equipment and facilities;
(iv) enhancing their capacity to manufacture such equipment;
(v) advice on and developing facilities for research, monitoring,
educational and other programmes;
(b) provide appropriate assistance, especially to developing States, for
the minimization of the effects of major incidents which may cause
serious pollution of the marine environment;
(c) provide appropriate assistance, especially to developing States,
concerning the preparation of environmental assessments.
Article 203
Preferential treatment for developing States
Developing States shall, for the purposes of prevention, reduction and
control of pollution of the marine environment or minimization of its effects,
be granted preference by international organizations in:
(a) the allocation of appropriate funds and technical assistance; and
(b) the utilization of their specialized services.
SECTION 4. MONITORING AND ENVIRONMENTAL
ASSESSMENT
Article 204
Monitoring of the risks or effects of pollution
1. States shall, consistent with the rights of other States, endeavour, as
far as practicable, directly or through the competent international
organizations, to observe, measure, evaluate and analyse, by recognized
scientific methods, the risks or effects of pollution of the marine environment.
2. In particular, States shall keep under surveillance the effects of any
activities which they permit or in which they engage in order to determine
whether these activities are likely to pollute the marine environment.
Article 205
Publication of reports
States shall publish reports of the results obtained pursuant to article 204
or provide such reports at appropriate intervals to the competent international
organizations, which should make them available to all States.
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Article 206
Assessment of potential effects of activities
When States have reasonable grounds for believing that planned
activities under their jurisdiction or control may cause substantial pollution
of or significant and harmful changes to the marine environment, they shall,
as far as practicable, assess the potential effects of such activities on the
marine environment and shall communicate reports of the results of such
assessments in the manner provided in article 205.
SECTION 5. INTERNATIONAL RULES AND NATIONAL
LEGISLATION
TO PREVENT, REDUCE AND CONTROL
POLLUTION OF THE MARINE ENVIRONMENT
Article 207
Pollution from land-based sources
1. States shall adopt laws and regulations to prevent, reduce and control
pollution of the marine environment from land-based sources, including
rivers, estuaries, pipelines and outfall structures, taking into account
internationally agreed rules, standards and recommended practices and
procedures.
2. States shall take other measures as may be necessary to prevent,
reduce and control such pollution.
3. States shall endeavour to harmonize their policies in this connection
at the appropriate regional level.
4. States, acting especially through competent international
organizations or diplomatic conference, shall endeavour to establish global
and regional rules, standards and recommended practices and procedures to
prevent, reduce and control pollution of the marine environment from
land-based sources, taking into account characteristic regional features, the
economic capacity of developing States and their need for economic
development. Such rules, standards and recommended practices and
procedures shall be re-examined from time to time as necessary.
5. Laws, regulations, measures, rules, standards and recommended
practices and procedures referred to in paragraphs 1, 2 and 4 shall include
those designed to minimize, to the fullest extent possible, the release of toxic,
harmful or noxious substances, especially those which are persistent, into the
marine environment.
Article 208
Pollution from seabed activities subject to national jurisdiction
1 Coastal States shall adopt laws and regulations to prevent, reduce
and control pollution of the marine environment arising from or in connection
with seabed activities subject to their jurisdiction and from artificial islands,
installations and structures under their jurisdiction, pursuant to articles 60
and 80.
2. States shall take other measures as may be necessary to prevent,
reduce and control such pollution.
3. Such laws, regulations and measures shall be no less effective than
international rules, standards and recommended practices and procedures.
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A/69/780*
United Nations
General Assembly
Distr.: General
13 February 2015
Original: English
Sixty-ninth session
Agenda item 74 (a)
Oceans and the law of the sea
Letter dated 13 February 2015 from the Co-Chairs of the Ad Hoc
Open-ended Informal Working Group to the President of the
General Assembly
Pursuant to paragraph 80 of General Assembly resolution 60/30, we were
reappointed as Co-Chairs of the Ad Hoc Open-ended Informal Working Group to study
issues relating to the conservation and sustainable use of marine biological diversity
beyond areas of national jurisdiction, which was established pursuant to paragraph 73 of
General Assembly resolution 59/24. In accordance with paragraphs 199 and 200 of
General Assembly resolution 68/70, the Working Group met from 20 to 23 January
2015.
We are pleased to inform you that the Working Group has fulfilled its mandate
to provide recommendations to the General Assembly, as requested in paragraph 214
of resolution 69/245. We have the honour to submit to you the outcome of the
meeting, consisting of recommendations adopted by consensus by the Working
Group and a Co-Chairs’ summary of discussions at the meeting (see annex).
It would be appreciated if the present letter and the annex thereto could be
circulated as a document of the General Assembly, under agenda item 74 (a).
(Signed) Palitha T. B. Kohona
(Signed) Liesbeth Lijnzaad
Co-Chairs
* Reissued for technical reasons on 10 March 2015.
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A/69/780
Annex
Outcome of the Ad Hoc Open-ended Informal Working Group to
study issues relating to the conservation and sustainable use of
marine biological diversity beyond areas of national jurisdiction
and Co-Chairs’ summary of discussions
I.
Recommendations
1.
The Ad Hoc Open-ended Informal Working Group to study issues relating to
the conservation and sustainable use of marine biological diversity beyond areas of
national jurisdiction recommends to the General Assembly that it:
(a) Reaffirm the commitment made by Heads of State and Government in
paragraph 162 of the outcome document of the United Nations Conference on
Sustainable Development, held in Rio de Janeiro, Brazil, from 20 to 22 June 2012,
entitled “The future we want” and endorsed by the General Assembly in its
resolution 66/288 of 27 July 2012, to address, on an urgent basis, building on the
work of the Ad Hoc Open-ended Informal Working Group, the issue of the
conservation and sustainable use of marine biological diversity of areas beyond
national jurisdiction, including by taking a decision on the development of an
international instrument under the United Nations Convention on the Law of the
Sea, before the end of the sixty-ninth session of the Assembly;
(b) Note its request to the Ad Hoc Open-ended Informal Working Group to
make recommendations on the scope, parameters and feasibility of an international
instrument under the Convention contained in paragraph 214 of resolution 69/245;
(c) Welcome the exchange of views on the scope, parameters and feasibility
of an international instrument under the Convention and the progress made within
the Ad Hoc Open-ended Informal Working Group, within its mandate established by
resolution 66/231 and in the light of resolution 67/78, to prepare for the decision on
the development of an international instrument under the Convention to be taken at
the sixty-ninth session of the General Assembly;
(d) Stress the need for the comprehensive global regime to better address the
conservation and sustainable use of marine biological diversity beyond areas of
national jurisdiction and having considered the feasibility of developing an
international instrument under the Convention;
(e) Decide to develop an international legally binding instrument under the
Convention on the conservation and sustainable use of marine biological diversity
of areas beyond national jurisdiction and to that end:
(i) Prior to holding an intergovernmental conference, decide to establish a
preparatory committee, open to all States Members of the United Nations,
members of specialized agencies and parties to the Convention, with others
invited as observers in accordance with past practice of the United Nations, to
make substantive recommendations to the General Assembly on the elements
of a draft text of an international legally binding instrument under the
Convention, taking into account the various reports of the Co -Chairs on the
work of the Ad Hoc Open-ended Informal Working Group, the preparatory
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A/69/780
committee starting its work in 2016 and, by the end of 2017, reporting to the
Assembly on its progress;
(ii) Before the end of the seventy-second session of the General Assembly,
and taking into account the aforementioned report of the preparatory
committee, will decide on the convening and on the starting date of an
intergovernmental conference, under the auspices of the United Nations, to
consider the recommendations of the preparatory committee on the elements
and to elaborate the text of an international legally binding instrument under
the Convention;
(f) Decide that negotiations shall address the topics identified in the package
agreed in 2011, namely the conservation and sustainable use of mar ine biological
diversity of areas beyond national jurisdiction, in particular, together and as a
whole, marine genetic resources, including questions on the sharing of benefits,
measures such as area-based management tools, including marine protected areas,
environmental impact assessments and capacity-building and the transfer of marine
technology;
(g) Recognize that the process indicated in subparagraph (e) above should
not undermine existing relevant legal instruments and frameworks and relevant
global, regional and sectoral bodies;
(h) Also recognize that neither participation in the negotiations nor their
outcome may affect the legal status of non-parties to the Convention or any other
related agreements with regard to those instruments, or the legal status of parties to
the Convention or any other related agreements with regard to those instruments.
II.
Co-Chairs’ summary of discussions **
2.
In paragraph 198 of its resolution 68/70, the General Assembly requested the
Ad Hoc Open-ended Informal Working Group to study issues relating to the
conservation and sustainable use of marine biological diversity beyond areas of
national jurisdiction, within its mandate established by resolution 66/231 and in the
light of resolution 67/78, and in order to prepare for the decision to be taken at the
sixty-ninth session of the Assembly, to make recommendations to the Assembly on
the scope, parameters and feasibility of an international instrument under the United
Nations Convention on the Law of the Sea. To that end, the Assembly decided that
the Working Group should meet for three meetings of four days each, with the
possibility of the Assembly deciding that additional meetings would be held, if
needed, within existing resources.
3.
The first and second of those meetings of the Working Group were held at
United Nations Headquarters from 1 to 4 April 2014 a and from 16 to 19 June 2014, b
respectively, in accordance with paragraphs 199 and 200 of resolution 68/70. The
third meeting was held at United Nations Headquarters from 20 to 23 January 2015,
in accordance with paragraphs 199 and 200 of resolution 68/70 and paragraph 214
of resolution 69/245.
__________________
** The summary is intended for reference purposes only.
a See A/69/82.
b See A/69/177.
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A/69/780
4.
The meeting of the Working Group was presided over by two Co -Chairs,
Palitha T. B. Kohona (Sri Lanka) and Liesbeth Lij nzaad (Netherlands), appointed by
the President of the General Assembly in consultation with Member States.
5.
The Under-Secretary-General for Legal Affairs, the Legal Counsel, Miguel de
Serpa Soares, delivered opening remarks on behalf of the Secretary-General.
6.
Representatives of 104 Member States, 2 non-Member States,
17 intergovernmental organizations and other bodies and 11 non-governmental
organizations attended the meeting of the Working Group.
7.
The Working Group adopted the agenda (A/AC.276/11) without amendment
and agreed to proceed on the basis of the proposed format and annotated agenda and
organization of work (A/AC.276/L.16).
8.
Following informal consultations, on 23 January 2015 the plenary of the
Working Group adopted the recommendations contained in section I above by
consensus. The delegations of the Bolivarian Republic of Venezuela and Colombia
made statements explaining their position after the adoption of the recommendations
(see para. 33).
9.
In accordance with the format and at the request of the Working Group, the
Co-Chairs prepared the present brief summary of discussions on key issues, ideas
and proposals referred to or raised during the deliberations. The general
considerations made during the meeting are reflected in paragraphs 10 to 25 below.
Comments of a general nature made in the context of the consideration of draft
recommendations to the sixty-ninth session of the General Assembly are reflected in
paragraphs 26 to 34.
General considerations, including on the scope, parameters and feasibility of an
international instrument under the United Nations Convention on the Law of
the Sea
10. Delegations recalled the importance and urgency of addressing the
conservation and sustainable use of marine biodiversity beyond areas of national
jurisdiction. Several delegations observed that addressing the issue would also
address sustainable development issues, in particular food security and poverty
alleviation. Several delegations highlighted, in particular, that oceans were the
foundation of small island developing States’ economies, environment and societies
and that, in recent years, accumulating and compounding human impacts had
undermined the health of the oceans, thereby gravely threatening the well -being and
livelihood of those States’ populations. In that context, marine biodiversity beyond
areas of national jurisdiction was considered of critical importance, owing to its
shared, transboundary nature and its interconnectedness to coastal ecosystems. It
was noted that national and regional efforts to conserve and sustainably use
biodiversity could be jeopardized by the challenges posed by activities beyond areas
of national jurisdiction. Those delegations called for strengthened cooperation and
coordination among all sectors and at all levels. Several delegations expressed the
view that a global universal governance structure remained the best way to promote
sustainable marine biodiversity beyond areas of national jurisdiction.
11. Delegations recalled paragraph 162 of the outcome document of the United
Nations Conference on Sustainable Development, entitled “The future we want”
(resolution 66/288, annex), in which States committed to add ress, on an urgent
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basis, building on the work of the Ad Hoc Open-ended Informal Working Group and
before the end of the sixty-ninth session of the General Assembly, the issue of the
conservation and sustainable use of marine biological diversity of areas beyond
national jurisdiction, including by taking a decision on the development of an
international instrument under the United Nations Convention on the Law of the
Sea. Many delegations welcomed the progress made at the meetings of the Working
Group held in April and June 2014.
12. Many delegations reiterated that the status quo was not acceptable and
considered that there was growing momentum to recommend to the General
Assembly that it decide to launch negotiations to develop an international
instrument under the Convention. They considered that the elaboration of such an
instrument was feasible from a political, legal and technical standpoint. In their
view, the instrument would have to be negotiated on the basis of, and address, the
package of issues agreed upon in 2011 in resolution 66/231, namely marine genetic
resources, including questions on the sharing of benefits, measures such as area based management tools, including marine protected areas, and environmental
impact assessments, capacity-building and the transfer of marine technology. Many
delegations supported negotiating such an instrument as a legally binding agreement
under the Convention. Several delegations underlined that a third implementing
agreement to the Convention would respond to the urgent need to depart from the
status quo and bring added value to the present legal regime for oceans and seas by
moving from sectoral and fragmented approaches to a global and more coherent
approach. Such an agreement, several delegations noted, would i mplement,
strengthen and elaborate on a number of obligations already embodied in the
Convention without altering the existing legal order established therein. Several
delegations also pointed out that an agreement would reduce existing governance
gaps by providing a comprehensive legal and institutional framework for marine
biodiversity beyond areas of national jurisdiction. A view was expressed that such a
regime would ensure predictability and uniformity in the conduct of States. It was
emphasized that the response to the challenge of the conservation and sustainable
use of marine biodiversity beyond areas of national jurisdiction could not be left to
unilateral action or to organizations with limited participation and that common
goods could not be appropriated by or left to the exclusive administration of a few
which did not represent the interests of the international community.
13. Some delegations stated that discussions had not been exhausted on the way
forward to address issues relating to the conservation and sustainable use of marine
biological diversity beyond areas of national jurisdiction and that some questions
still needed to be addressed. It was observed that the status quo was mainly due to
limited political will to implement existing instru ments, which did not constitute a
legal gap but one of implementation that would not be addressed by adopting a new
instrument. Some delegations observed that focusing on the effective
implementation and enforcement of existing legally binding instruments would
better ensure the conservation and sustainable use of marine biodiversity beyond
areas of national jurisdiction. In that regard, given the need to tackle issues on an
urgent basis and the significant resources and efforts required to negotiate a new
instrument, preference was expressed for focusing on ways to strengthen the
implementation of existing instruments.
14. Some delegations expressed concern about negotiating a new legally binding
agreement without a clear understanding of what it would cove r. It was noted that
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while there was some clarity on the breadth of questions involved, there was
insufficient clarity on possible answers. The view was also expressed that the
package agreed in 2011 was no more than a description of major topics to be
addressed, which did not specify which activities would be covered by a new
instrument or clarify that a new instrument would not prejudice the rights, duties
and interests of States, and not diminish authorities or mandates under existing
international law.
15. Several delegations highlighted the need to complement, respect and avoid
duplication with existing instruments, in particular the Convention. Some
delegations stressed the need to take into account ongoing activities. Several
delegations suggested that the future arrangement should build on the Agreement
relating to the Implementation of Part XI of the United Nations Convention on the
Law of the Sea of 10 December 1982 and the Agreement for the Implementation of
the Provisions of the United Nations Convention on the Law of the Sea of
10 December 1982 relating to the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks, as well as other relevant treaties, to
provide a uniform regime for biodiversity beyond areas of nati onal jurisdiction.
16. The need to take into account the relevant general principles of international
law and the rights and duties enshrined in international legal instruments, in
particular the Convention, such as the principle of the common heritage of mankind
and the freedom of the high seas, was emphasized by several delegations. Some
delegations reaffirmed the importance of preserving the balance of interests, rights
and obligations enshrined in the Convention and between competing uses of the
oceans and conservation and sustainable use objectives. It was emphasized that,
should negotiations be launched, any discussions and resulting instrument should
focus on cooperation and collaboration between institutions and ensuring a
functioning relationship between the different activities in areas beyond national
jurisdiction, not on managing those activities.
17. Many delegations noted with concern the absence of a comprehensive global
regime to address the legal gaps relating to the conservation and sustaina ble use of
marine biodiversity beyond areas of national jurisdiction. Other delegations drew
attention to the fact that a number of existing instruments were applicable. A view
was expressed that the focus of any new agreement should therefore be on issues
where there were shortcomings or gaps in the current framework. In that regard, it
was noted that while legal gaps could be addressed in the context of a new
agreement, such gaps had yet to be specifically identified.
18. Several delegations underlined the existence of a legal gap concerning access
to, and benefit sharing from, marine genetic resources of areas beyond national
jurisdiction. In the view of several delegations, those resources were the common
heritage of mankind, in accordance with resolution 2749 (XXV). They noted that
those resources were currently being exploited without the concomitant obligation
to share the benefits derived therefrom and that a specific legal regime needed to be
developed to implement the common heritage of mankind, taking into account the
interests and needs of developing countries, including States non -parties to the
Convention. It was highlighted that marine genetic resources beyond areas of
national jurisdiction could not be subject to unilateral access and use.
19. It was suggested that the scope of a new instrument should encompass all
marine resources in areas beyond national jurisdiction currently known or
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discovered at any time in the future. In that regard, while support was expressed for
the inclusion of fisheries in a new instrument, taking into account the work of
existing regional fisheries management organizations, other delegations observed
that fisheries in the high seas were already regulated under the United Nations Fish
Stocks Agreement and should therefore not be included in the scope of such an
instrument.
20. The importance of not deterring scientific research was emphasized, given that
research on marine genetic resources was a relatively new and quickly evolving
field and that innovation could be hampered by cumbersome and excessively
bureaucratic procedures. It was reaffirmed that intellectual property rights issues
should be addressed within the competent forums, such as the World Intellectual
Property Organization.
21. The need to enhance scientific understanding of areas beyond national
jurisdiction was considered a priority, as was the need for sound science to inform
decision-making. It was noted that the transfer of technology must be compatible
with existing frameworks, including those under the United Nations Educational,
Scientific and Cultural Organization.
22. Several delegations noted that a legally binding agreement should incorporate
widely accepted principles of ocean governance, such as the precautionary principle,
integrated ocean management and an ecosystem approach. A view was expressed
that it would not be appropriate to use a “one size fits all” approach for every
activity in all regions, as impacts vary across sectors and regions, based on
particular circumstances and characteristics. It was observed, with particular
reference to transboundary environmental impact assessments, that care should be
exercised in applying to marine biodiversity beyond areas of national jurisdiction
approaches developed in the context of planned activit ies within the jurisdiction or
control of States.
23. Several delegations suggested that an agreement should establish institutional
mechanisms to assist parties in implementing their obligations. They expressed the
view that the mandate of the International Seabed Authority could be expanded to
oversee the implementation of a future agreement under the Convention. Other
delegations observed that the Authority could serve as a model for any institution
developed under a new agreement. A view was expressed that new structures or
institutions should be established only if considered necessary.
24. The need to take into account the views of all stakeholders was emphasized. In
particular, it was suggested that civil society, international organizations and
industry associations that had an interest in activities that could be affected by any
future instrument should be invited to engage and contribute their views and
expertise.
25. Some delegations underscored that any new agreement should be open to all
States, whether parties or non-parties to the Convention. Several delegations
stressed that accession to an implementing agreement on the conservation and
sustainable use of marine biodiversity beyond areas of national jurisdiction under
the Convention should not prejudge accession thereto of States non-parties. Some
delegations indicated that acceding to such an agreement would not imply
acceptance of any legal obligations arising from instruments that had not been
explicitly accepted by States non-parties. In that regard, some delegations expressed
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the view that issues relating to the conservation and sustainable use of marine
biodiversity beyond areas of national jurisdiction should be regulated under an
international instrument other than the United Nations Conv ention on the Law of the
Sea, such as the Convention on Biological Diversity, or as an addition to the Nagoya
Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization to the Convention on Biologi cal Diversity. It
was also suggested that the criteria and principles enshrined in various existing
instruments could be adapted to the conservation and sustainable use of marine
biodiversity beyond areas of national jurisdiction, bearing in mind the princ iples of
responsibility, cooperation, equality and sustainability.
Consideration and adoption of draft recommendations to the sixty-ninth session
of the General Assembly
26. The Co-Chairs presented a non-paper dated 17 December 2014, which
contained draft elements of recommendations to the sixty-ninth session of the
General Assembly and had been prepared upon the request of delegations at the
meeting of the Working Group held in June 2014. The Co -Chairs explained that the
non-paper was a compilation of the elements submitted by delegations in response
to their letter dated 8 July 2014, with a view to facilitating the development of draft
recommendations. They noted that it was not envisaged that the non -paper would
constitute the basis for negotiations on the draft recommendations, especially since
the elements contained therein did not purport to reflect consensual elements.
Delegations expressed their appreciation to the Co-Chairs for preparing the
non-paper, which they considered to constitute a good basis for elaborating draft
recommendations.
27. Many delegations expressed support for recommendations to launch a
negotiating process for an international legally binding agreement. It was observed
that, under the mandate of the Working Group, including t he mandate established by
resolution 66/231, and taking into account the commitment made by States in
paragraph 162 of the outcome document of the United Nations Conference on
Sustainable Development, entitled “The future we want”, the option of addressing
issues relating to the conservation and sustainable use of marine biodiversity beyond
areas of national jurisdiction through the implementation of existing instruments
was still available.
28. With regard to the possible content of an international instru ment, many
delegations expressed the view that the draft recommendations should reflect
consensual elements only, highlighting in particular the package agreed in 2011,
without touching upon issues that were still under discussion. A view was expressed
that the package was not robust enough to constitute the basis for negotiations of a
new instrument.
29. Several delegations stressed that the recommendations should include a
reference to the need to recognize, respect and complement the competence and
mandates of existing global and regional organizations and frameworks and to foster
and strengthen cooperation and coordination between existing bodies. It was
proposed that the recommendations include recognition of the primary role of the
Convention and its principles, such as freedom of the high seas and the common
heritage of mankind. A suggestion was made that the recommendations could
include such parameters as taking a practical approach, cost -effectiveness, adequate
financial incentives and the use of existing frameworks to avoid unnecessary costs.
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Other delegations cautioned against engaging in de facto treaty negotiation before
formal negotiations for an international instrument under the Convention had
actually commenced, as many issues would need to be resolved during such
negotiations.
30. With regard to the next stage of the process, many delegations called for the
recommendations to include the convening of an intergovernmental conference
under the auspices of the United Nations with the mandate to negotiate an
implementing agreement under the Convention and to address, in particular,
together and as a whole, the package of issues agreed in 2011. Several delegations
suggested that the intergovernmental conference should be convened as soon as
possible and should complete its work within an agreed deadline. Several
delegations suggested that the resolution to be adopted by the General Assembly
could set the timeline for negotiations. Highlighting the complexity of the issues, a
delegation stated that it would not be appropriate to pre-set a timetable for
negotiations at that stage.
31. Many delegations expressed the view that convening a preparatory process
with the mandate of making recommendations to an intergovernmental conference
could be useful. A view was expressed that the most important task of the
preparatory committee should be to determine specifically those areas for which a
new agreement was necessary and those where it would be sufficient to strengthen
cooperation under existing instruments. In that regard, it was observed that the
discussions in the Working Group had been very rich and that the preparatory
process should draw upon and benefit from this work. The view was expressed that
the recommendations of the Working Group should be specific enough to provide
guidance and framing to the preparatory process, without going into the detail of
what needed to be negotiated.
32. Many delegations observed that the preparatory process should be open to all
States Members of the United Nations, as well as to parties to the Convention. The
need to ensure that the negotiations were inclusive and transparent was also
underscored.
33. Following informal consultations, which were conducted on the basis that
“nothing is agreed until everything is agreed”, the Working Group adopted the
recommendations included in section I above by consensus. The delegation of the
Bolivarian Republic of Venezuela indicated that, because it was not a party to the
Convention, the norms of the Convention, including those char acterized as
customary law, were not applicable to it, except for those that it had expressly
recognized. It was also stated that a lack of objection to the recommendations
adopted at the meeting could not be interpreted as a change in position of the
Bolivarian Republic of Venezuela with regard to the Convention and its role in the
framework of a future legal regime for marine resources beyond national
jurisdiction. The delegation of Colombia indicated that it had joined the consensus
on the understanding that this support did not imply acceptance by Colombia of the
provisions or the obligations contained in the Convention, to which it was not a
party. The delegation stressed that under no circumstances could it be inferred that
the Convention or any other international instrument related to the recommendations
were applicable or opposable to Colombia.
34. Delegations expressed appreciation to the Co-Chairs for their leadership and
guidance since 2010. They also thanked the Secretariat.
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CRITERIA AND GUIDANCE
for identifying ecologically or biologically significant
marine areas and designing representative networks of
marine protected areas in open ocean waters
and deep sea habitats
22
AZORES SCIENTIFIC CRITERIA AND GUIDANCE
The oceans cover 70% of our planet’s surface and represent
over 95% of the living biosphere.
2
They contain a vast diversity of different habitat types and
spectacular seascapes, hosting 32 of the 34 Animalia phyla of
the planet, of which around 13 are exclusively or mostly marine.
Knowing less about the deep sea habitats
than the surface of the moon
HYDROTHERMAL VENTS were the first ecosystem on Earth
Most scientific studies have focused on easily accessible
coastal waters and surface ocean. Only a small percentage
of the deep seafloor has been subject to biological
investigation.
Revealing the natural beauty and ecological
value of deep sea habitats
With the technological advances of the past few decades,
much has been added to our knowledge of deep sea
habitats, and people have begun to realize the value and
importance of this large and remote habitat to life on Earth.
Deep seabed habitats, long perceived to be a biological
desert, host a wealth of species. Current estimates
for species diversity in the deep sea range between
500,000 and 10 million species. Recent scientific results
highlighted that higher biodiversity can enhance the
functioning and efficiency of deep sea ecosystems.
Without deep sea life, life on Earth would be compromised
because of the fundamental role of the deep sea in global
biogeochemical cycles including nutrient regeneration and
oxygen itself. As such, the sustainability of our biosphere
significantly relies on the goods and services provided by
deep sea ecosystems.
found to be basically independent from the sun as an original
source of energy, relying instead on chemosynthesis. Deep
sea hydrothermal vent organisms tolerate great extremes in
water temperature and survive toxic concentrations of heavy
metals. They are therefore of particular interest because of
their adaptation to a high pressure, high temperature, high
acidity and high toxicity environment. Despite these extreme
conditions, the biomass of organisms around vents is very
high, and made up of endemic species.
SEAMOUNTS and the water column above them serve as
important habitats, feeding grounds, and reproduction
sites for many open ocean and deep sea species of fish,
sharks, sea turtles, marine mammals, seabirds, and benthic
organisms. Seamounts thus form biological hotspots with a
distinct, abundant and diverse fauna, and sometimes reveal
many species new to science.
COLD-WATER CORAL REEFS may be many hundred to thousands
of years old. Because of their age and slow growth rates,
reefs contain high-resolution records of long-term climate
change and may also serve as important speciation centres
in the deep sea. Recent research in paleo-climatology has
discovered the enormous potential of climate records in
the skeletons of cold-water corals, since they are found in
all oceans and at all bathymetries, from sea level to at least
4 km below the surface.
“How inappropriate to call this planet
23
Increasing threats from various human activities
AZORES SCIENTIFIC CRITERIA AND GUIDANCE
The open ocean and deep sea are under increasing threat
from various human activities. The most pressing threats
come from overfishing, destructive fishing practices, and
illegal, unreported and unregulated fishing activities. Other
emerging problems include marine debris, ship-based
marine pollution, transfer of alien invasive species, illegal
dumping and the legacy of historical dumping, seabed
mineral extraction, and noise pollution. The discovery of the
enormous potential value of genetic resources associated
with deep seabed habitats to various sectors, particularly
the health and food sectors, has highlighted the value of
deep sea biodiversity but also puts it at further risk from
poorly controlled research and bioprospecting with adverse
impacts. Another emerging concern that calls for proper
management is ocean fertilization and other activities
proposed for storing or sequestering carbon dioxide in
the deep sea. The combined impacts of these threats as
well as the potential impacts of climate change and ocean
acidification have placed thousands of species at risk of
extinction, and have impaired the structure, function,
productivity and resilience of marine ecosystems.
World oceans are seriously under-protected
At the present time, the world’s oceans are seriously underprotected, with only approximately 0.8% of the oceans and
6% of territorial seas being within protected area systems.
In response to rising concerns regarding the health of open
ocean and deep sea ecosystems, the 2002 World Summit
on Sustainable Development, in its Plan of Implementation,
called for countries to develop and facilitate the use of
diverse approaches and tools, including the ecosystem
approach, the elimination of destructive fishing practices,
and the establishment of marine protected areas consistent
with international law and based on scientific information,
including representative networks by 2012.
3
Earth when it is quite clearly Ocean”
24
—Sir Arthur C. Clarke
Message from Dr. Ahmed Djoghlaf, Executive Secretary of the Convention on Biological Diversity,
on the occasion of World Ocean Day 2008
AZORES SCIENTIFIC CRITERIA AND GUIDANCE
“All the members of the ocean biodiversity family are invited to renew their commitment to the Jakarta Mandate and share their
wisdom, knowledge, expertise, experiences, and resources toward implementing the commitments made at the ninth meeting of
the Conference of the Parties to the Convention. By working closely together for One Ocean, we can safeguard the sustainability
of Our Future on this Blue Planet. OUR FUTURE LIES IN OUR OCEAN!”
4
Common and shared goal
To maintain, protect and conserve global marine biodiversity through
conservation and protection of its components in a biogeographically
representative network of ecologically coherent sites.
25
AZORES SCIENTIFIC CRITERIA AND GUIDANCE
Historic step taken by COP 9
Future steps
The Conference of the Parties to the Convention on
Biological Diversity (COP), in its ninth meeting, adopted the
scientific criteria for identifying ecologically or biologically
significant marine areas in need of protection (Table 1), and
the scientific guidance for designing representative networks
of marine protected areas (Table 2). These scientific criteria
and guidance were consolidated by the Expert Workshop on
Ecological Criteria and Biogeographic Classification Systems
for Marine Areas in Need of Protection held in the Azores,
Portugal, from 2 – 4 October 2007.
The Secretariat of the Convention on Biological
Diversity is convening an expert workshop on scientific
and technical guidance on the use of biogeographic
classification systems and identification of marine areas
beyond national jurisdiction in need of protection, in
Ottawa, Canada from 29 September to 2 October 2009.
This workshop was called for by COP 9 (Decision IX/20,
paragraph 19) to help Parties in their efforts of applying
the scientific criteria (Table 1). This expert workshop
will review and synthesize progress on the identification
of areas beyond national jurisdiction which meet the
scientific criteria and experience with the use of the
biogeographic classification systems. It will also provide
scientific and technical guidance on the identification
of areas beyond national jurisdiction that meet the CBD
scientific criteria, and guidance on the use and further
development of biogeographic classification systems. The
results of this workshop will be transmitted to the 14th
meeting of the Subsidiary Body on Scientific, Technical
and Technological Advice, scheduled for May 2010, for its
consideration prior to the tenth meeting of the Conference
of Parties with a view to assisting the United Nations
General Assembly.
Identifying ecologically or biologically
significant and/or vulnerable marine areas
in need of protection
COP 9 urged Parties and invited other Governments
and relevant organizations to apply, as appropriate, the
scientific criteria (Table 1) and the scientific guidance
(Table 2) to identify ecologically or biologically significant
and/or vulnerable marine areas in need of protection.
The application of the scientific criteria and guidance,
based on the best available scientific information and
applying the precautionary approach and the ecosystem
approach, can enable Parties, other Governments and
relevant organizations to help halt the rapid loss of marine
biodiversity in open ocean waters and deep sea habitats.
26
5
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6
Scientific criteria for identifying ecologically
of protection in open ocean waters
Criteria
Definition
Uniqueness
or rarity
Area contains either (i) unique (“the only
one of its kind”), rare (occurs only in few
locations) or endemic species, populations
or communities, and/or (ii) unique, rare or
distinct, habitats or ecosystems; and/or
(iii) unique or unusual geomorphological or
oceanographic features
Special
importance for
life-history stages
of species
Areas that are required for a population to
survive and thrive
Importance
for threatened,
endangered or
declining species
and/or habitats
Rationale
Area containing habitat for the survival
and recovery of endangered, threatened,
declining species or area with significant
assemblages of such species
27
• Irreplaceable
• Loss would mean the probable
permanent disappearance of diversity or
a feature, or reduction of the diversity at
any level
Various biotic and abiotic conditions coupled
with species-specific physiological constraints
and preferences tend to make some parts of
marine regions more suitable to particular
life-stages and functions than other parts.
To ensure the restoration and recovery of
such species and habitats
Examples
Open ocean waters
• Sargasso Sea, Taylor column, persistent polynyas
Deep sea habitats
• endemic communities around submerged atolls;
hydrothermal vents; seamounts; pseudo-abyssal
depression
Consideration in application
• Risk of biased-view of the perceived uniqueness
depending on the information availability
• Scale dependency of features such that unique
features at one scale may be typical at another, thus a
global and regional perspective must be taken
Area containing: (i) breeding
grounds, spawning areas,
nursery areas, juvenile habitat
or other areas important for
life history stages of species;
or (ii) habitats of migratory
species (feeding, wintering
or resting areas, breeding,
moulting, migratory routes)
• Connectivity between life-history stages and
linkages between areas: trophic interactions, physical
transport, physical oceanography, life history of
species
Areas critical for threatened, endangered or declining
species and/or habitats, containing (i) breeding
grounds, spawning areas, nursery areas, juvenile
habitat or other areas important for life history
stages of species; or (ii) habitats of migratory species
(feeding, wintering or resting areas, breeding, moulting,
migratory routes)
• Includes species with very large geographic ranges
• Sources for information include: e.g. remote sensing,
satellite tracking, historical catch and by-catch data,
vessel monitoring system (VMS) data
• Spatial and temporal distribution and/or aggregation
of the species
• In many cases recovery will require reestablishment
of the species in areas of its historic range
• Sources for information include: e.g. remote sensing,
satellite tracking, historical catch and by-catch data,
vessel monitoring system (VMS) data
28
AZORES SCIENTIFIC CRITERIA AND GUIDANCE
or biologically significant marine areas in need
and deep sea habitats (Annex I of CBD Decision IX/20)
7
AZORES SCIENTIFIC CRITERIA AND GUIDANCE
Scientific criteria for identifying ecologically
of protection in open ocean waters
Criteria
Definition
Rationale
Vulnerability,
fragility,
sensitivity, or
slow recovery
Areas that contain a relatively high proportion
of sensitive habitats, biotopes or species that
are functionally fragile (highly susceptible to
degradation or depletion by human activity or
by natural events) or with slow recovery
The criteria indicate the degree of risk that
will be incurred if human activities or natural
events in the area or component cannot be
managed effectively, or are pursued at an
unsustainable rate.
Biological
productivity
Area containing species, populations or
communities with comparatively higher
natural biological productivity
Important role in fuelling ecosystems and
increasing the growth rates of organisms
and their capacity for reproduction
Biological
diversity
Area contains comparatively higher
diversity of ecosystems, habitats,
communities, or species, or has higher
genetic diversity
Important for evolution and maintaining
the resilience of marine species and
ecosystems
Naturalness
Area with a comparatively higher degree
of naturalness as a result of the lack of or
low level of human-induced disturbance or
degradation
8
29
• To protect areas with near natural
structure, processes and functions
• To maintain these areas as reference sites
• To safeguard and enhance ecosystem
resilience
or biologically significant marine areas in need
and deep sea habitats (Annex I of CBD Decision IX/20) Continued
Examples
Consideration in application
Vulnerability of species
• Inferred from the history of how species or
populations in other similar areas responded to
perturbations
• Species of low fecundity, slow growth, long time to
sexual maturity, longevity (e.g. sharks, etc)
• Interactions between vulnerability to human impacts
and natural events
• Existing definition emphasizes site specific ideas and
requires consideration for highly mobile species
• Criteria can be used both in its own right and in
conjunction with other criteria
• Species with structures providing biogenic habitats,
such as deepwater corals, sponges and bryozoans;
deep-water species
Vulnerability of habitats
• Ocean acidification can make deep sea habitats more
vulnerable to others, and increase susceptibility to
human-induced changes
• Frontal areas
• Hydrothermal vents
• Upwellings
• Seamounts polynyas
• Can be measured as the rate of growth of marine
organisms and their populations, either through
the fixation of inorganic carbon by photosynthesis,
chemosynthesis, or through the ingestion of prey,
dissolved organic matter or particulate organic matter
• Can be inferred from remote-sensed products, e.g.,
ocean colour or process-based models
• Time-series fisheries data can be used, but caution is
required
• Diversity needs to be seen in relation to the
surrounding environment
• Diversity indices are indifferent to species
substitutions
• Seamounts
• Fronts and convergence zones
• Cold coral communities
• Deep-water sponge communities
Most ecosystems and
habitats have examples
with varying levels of
naturalness, and the intent
is that the more natural
examples should be
selected.
• Diversity indices are indifferent to which species may
be contributing to the value of the index, and hence
would not pick up areas important to species of
special concern, such as endangered species
• Can be inferred from habitat heterogeneity or
diversity as a surrogate for species diversity in areas
where biodiversity has not been sampled intensively
• Priority should be given to areas having a low level of
disturbance relative to their surroundings.
• In areas where no natural areas remain, areas
that have successfully recovered, including
reestablishment of species, should be considered.
• Criteria can be used both in their own right and in
conjunction with other criteria.
30
AZORES SCIENTIFIC CRITERIA AND GUIDANCE
• Ice-covered areas susceptible to ship-based pollution.
9
Scientific guidance for selecting areas to establish a
representative network of marine protected areas,
including in open ocean waters and deep sea habitats
(Annex II of CBD Decision IX/20)
Required network
properties and
components
AZORES SCIENTIFIC CRITERIA AND GUIDANCE
Ecologically
and biologically
significant areas
Applicable site-specific
considerations (inter alia)
Definition
Ecologically and biologically
significant areas are geographically or
oceanographically discrete areas that
provide important services to one or more
species/populations of an ecosystem or
to the ecosystem as a whole, compared to
other surrounding areas or areas of similar
ecological characteristics, or otherwise
meet the criteria as identified in annex I to
decision IX/20.
• Uniqueness or rarity
• Special importance for life history
stages of species
• Importance for threatened, endangered
or declining species and/or habitats
• Vulnerability, fragility, sensitivity or
slow recovery
• Biological productivity
• Biological diversity
• Naturalness
Representativity
Representativity is captured in a network
when it consists of areas representing the
different biogeographical subdivisions
of the global oceans and regional seas
that reasonably reflect the full range of
ecosystems, including the biotic and habitat
diversity of those marine ecosystems.
A full range of examples across a
biogeographic habitat, or community
classification; relative health of species
and communities; relative intactness of
habitat(s); naturalness
Connectivity
Connectivity in the design of a network
allows for linkages whereby protected
sites benefit from larval and/or species
exchanges, and functional linkages from
other network sites. In a connected network
individual sites benefit one another.
Currents; gyres; physical bottlenecks;
migration routes; species dispersal;
detritus; functional linkages. Isolated sites,
such as isolated seamount communities,
may also be included.
Replicated
ecological features
Replication of ecological features means
that more than one site shall contain
examples of a given feature in the given
biogeographic area. The term “features”
means “species, habitats and ecological
processes” that naturally occur in the
given biogeographic area.
Accounting for uncertainty, natural
variation and the possibility of
catastrophic events. Features that exhibit
less natural variation or are precisely
defined may require less replication than
features that are inherently highly variable
or are only very generally defined.
Adequate and
viable sites
Adequate and viable sites indicate that all
sites within a network should have size
and protection sufficient to ensure the
ecological viability and integrity of the
feature(s) for which they were selected.
Adequacy and viability will depend on size;
shape; buffers; persistence of features;
threats; surrounding environment (context);
physical constraints; scale of features/
processes; spillover/compactness
10
31
AZORES SCIENTIFIC CRITERIA AND GUIDANCE
11
Acknowledgements
The Secretariat of the Convention on Biological Diversity wishes to acknowledge with appreciation the generous funding
from the Regional Government of the Azores and the Government of Portugal provided for the publication of this brochure.
The Secretariat also would like to thank Ricardo Serrão Santos (Dept. Oceanography and Fisheries, University of Azores,
Portugal) and Kristina Gjerde (IUCN) for their contribution of images and to the editing of the brochure. Gratitude is also
expressed to all staff of the Secretariat of the Convention who contributed to the editing and production of this brochure.
Photo credits
FRONT:
(Forskalia
Forskalia edwardsi
edwardsi) © Gavin Newman / Greenpeace
PAGE 2 LEFT:
(Hoplostethus
Hoplostethus atlanticus
atlanticus) © Malcolm Clark / NIWA
PAGE 2 RIGHT:
(Paragorgia sp. and Stylaster sp.) © Alberto Lindner
/ NOAA
PAGE 3 TOP:
UNEP / Topham
(Lepidochelys olivacea) tortugamarina.org
PAGE 3 BOTTOM:
/ PRETOMA
(Deep-sea vent chimneys) © SEAHMA — POCI
/ FEDER FCT / Portugal
(Prionace glauca) © Imen Meliane / IUCN
Photo Library
(Amphipod) © David Shale
(Rimicaris exoculata) © SEAHMA — POCI
/ FEDER FCT / Portugal
PAGE 8 TOP MIDDLE:
(Physeter
Physeter macrocephalus
macrocephalus) © Jorge Fontes / ImagDOP
PAGE 6 TOP LEFT:
(Orcinus orca) © Joe Stanford / NSF
PAGE 6-7 TOP MIDDLE:
(Gnathophausia sp.) © David Shale
(Bathymodiolus azoricus, Mirocaris fortunata and
Segonzacia mesatlantica) © SEAHMA — POCI / FEDER FCT
/ Portugal
PAGE 7 TOP RIGHT:
(Bathysaurus
Bathysaurus ferox
ferox) © David Shale
PAGE 8 BOTTOM LEFT:
© Gavin Newman / Greenpeace
PAGE 8 BOTTOM RIGHT:
(
(Atola
sp.) © David Shale
PAGE 4 BOTTOM:
(Paraliparis
Paraliparis sp.) © David Shale
PAGE 8 TOP LEFT:
PAGE 8 TOP RIGHT:
PAGE 3 BOTTOM-LONG:
(Munidopsis
Munidopsis sp.) © David Shale
PAGE 6 TABLE RIGHT:
PAGE 7 TABLE:
© Mary Grady / NOAA Ocean Explorer
PAGE 3 MIDDLE:
PAGE 4 TOP:
PAGE 6 TABLE LEFT:
PAGE 9 MIDDLE LEFT:
(Clione limacina) © David Shale
(Iridogorgia sp.) © SEAHMA — POCI / FEDER
FCT / Portugal
PAGE 9 BOTTOM LEFT:
PAGE 9 TOP RIGHT:
PAGE 11:
BACK:
((Aeginura
Aeginura grimaldii
grimaldii)) © David Shale
(Bolinopsis
Bolinopsis sp.) © David Shale
(Paragorgia arborea) © 2006 MBARI / NOAA
(Ophiuroid on Gorgonian coral) © David Shale
32
Secretariat of the Convention on Biological Diversity
413 Rue St. Jacques, Suite 800
Montréal, Québec, H2Y 1N9 Canada
Tel. +1-514-288-2220 Fax: +1-514-288-6588
Email: [email protected]
Web: www.cbd.int
© CBD Secretariat 2009. All Rights Reserved.
33
Fisheries,HighSeas
DavidFreestone
Contenttype:
EncyclopediaEntries
Articlelastupdated:
March2009
Product: MaxPlanck
EncyclopediaofPublic
InternationalLaw[MPEPIL]
Subject(s):
Exclusivefisheryzone—Exclusiveeconomiczone—Statehood,jurisdictionofstates,organsofstates
—Exclusivefisherieszone—UNCLOS(UNConventionontheLawoftheSea)
PublishedundertheauspicesoftheMaxPlanckFoundationforInternationalPeaceandtheRuleofLaw
underthedirectionofRüdigerWolfrum.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
EPIL Contributors; date: 09 April 2015
34
A.Introduction
1In1608inhisclassicwork,MareLiberum,thefamousDutchjuristHugoGrotiusarguedthat
maritimefisherieswerefreetoallmen,justastheseaisfreetoallmenand,sincetheseacannot
beexhaustedbypromiscuoususe,thereisnojustificationforitsappropriation.Inthe400years
sincethenourviewoftheabundanceoftheoceanshaschangedveryradically(seealsoLawof
theSea,Historyof).TheFoodandAgricultureOrganizationoftheUnitedNations(FAO)initsbiannualreport‘TheStateofWorldFisheriesandAgriculture’haswarnedusthatmorethan3/4of
globalfishstocksarefullyexploited,overexploited,depleted,orrecoveringfromdepletion.
Mankindhascometorealizethatfisheriesresourcesareaveryfiniteresource(seealsoMarine
LivingResources,InternationalProtection).Asthesignificanceofthishasdawned,particularon
coastalStates,therehavebeenmajorchangestothelegalregimegoverninghighseasfisheries.
NotonlyhastheareaofthehighseasitselfbeenshrunkbyincreasedclaimsofcoastalStates,but
therehasalsobeenagrowthinthenumberofinternationalorganizationsregulatingthe
conservationandmanagementofhighseasstocks(Fisheries,CommissionsandOrganizations).
Sincethe1992UNConferenceonEnvironmentandDevelopment(‘UNCED’)therehasbeen
increasingpressureontheseorganizationstotakeamoreecosystem-basedviewoftheactivities
thattheyregulate,tobemoreeffectiveintheirregulatoryactivities,andforStates,andthe
nationalsofvesselsflyingtheirflags,tocomplywiththeircorrespondingobligations(seealsoFlag
ofShips).
2Thiscontributionwilltracetheevolutionoftheglobalregimegoverninghighseasfishstocks
fromthe1958conventionstothe1982UnitedNationsConventionontheLawoftheSea(‘UN
ConventionontheLawoftheSea’)assupplementedbythe1995AgreementfortheImplementation
oftheProvisionsoftheUnitedNationsConventionontheLawoftheSearelatingtothe
ConservationandManagementofStraddlingFishStocksandHighlyMigratoryFishStocks(‘UNFish
StocksAgreement’).Itwillalsotouchbrieflyontheregionalandspeciesorganizationsresponsible
forfisheriesconservationandmanagement,andassesstheeffectivenessofthisstructureinlight
ofthecurrentstateofhighseasfishstocksandthenewthreatstheyface.
B.UNLawoftheSeaConventions1958–82
3Thelastfiftyyearshaveseenmajorchangesinthelawofhighseasfisheries.ThefirstoftheUN
ConferencesontheLawoftheSea(‘UNCLOSI’)in1958gaverisetofourconventionsandan
optionalprotocolondisputesettlement.AlthoughUNCLOSIwasabletosettlethemaximumouter
widthofthecontiguouszoneastwelvenauticalmiles(Art.24ConventionontheTerritorialSeaand
theContiguousZone[done29April1958,enteredintoforceon10September1964]516UNTS
205),neitherUNCLOSI,norUNCLOSIIin1960,wasabletosettlethemaximumwidthofthe
territorialsea.Thesignificanceofthis,forourpresentpurposes,wasthat,apartfromafewStates
thatclaimedmuchwiderterritorialseas,thehighseasregimestretchedfromtheouterlimitofthe
territorialsea,whichwasgenerallythree,butatthemostsometwelvenauticalmilesfromthe
coastalbaselines.Inthe25yearsto1982,thischangedradicallyascustomarylawandindeedthe
InternationalCourtofJustice(ICJ)intheFisheriesJurisdictionCase(UnitedKingdomofGreat
BritainandNorthernIrelandvIceland)recognizedthelegitimacyofwiderclaimsbycoastalStates
toexclusivejurisdictionoverfisheriesinthewatersadjacenttotheircoasts(FisheriesJurisdiction
Cases[UnitedKingdomvIceland;FederalRepublicofGermanyvIceland];Fisheries,Coastal).By
thetimeofUNCLOSIII(1973–82),the200-nauticalmilesexclusivefishingzone(‘EFZ’)orexclusive
economiczone(‘EEZ’)hadpassedintocustomarylawandtheEEZwasspecificallyrecognizedby
theresultingUNConventionontheLawoftheSea(Arts55–75).Themajorsignificanceofthisfor
thelawofhighseasfisherieswasthatupto95%ofexploitablefishstocksmovedfromtheregime
ofthehighseastothatofcoastaljurisdiction.
4However,thiswasnottheonlymajorchange.Article2ConventionontheHighSeaslists
freedomoffishingasoneofthehighseasfreedoms.Thisisfurtherelaboratedbytheparallel1958
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
EPIL Contributors; date: 09 April 2015
35
ConventiononFishingandConservationoftheLivingResourcesoftheHighSeas,whichprovides
inArt.1that‘[a]llStateshavetherightfortheirnationalstoengageinfishingonthehighseas
subject…to…provisions…concerningconservationofthelivingresourcesofthehighseas’.
5Article2ConventiononFishingandConservationoftheLivingResourcesoftheHighSeasgoes
ontodefineconservationasfollows:
“conservationofthelivingresourcesofthehighseas”meanstheaggregateofthe
measuresrenderingpossibletheoptimumsustainableyieldfromthoseresourcessoasto
secureamaximumsupplyoffoodandothermarineproducts.Conservationprogrammes
shouldbeformulatedwithaviewtosecuringinthefirstplaceasupplyoffoodforhuman
consumption.
6Thishighlyanthropocentricviewofconservationinthe1958ConventiononFishingand
ConservationoftheLivingResourcesoftheHighSeaswasthesubjectofthesecondmajorchange
introducedbytheUNConventionontheLawoftheSea,which,forthefirsttime,introducesa
strongenvironmentalconservationagendaintothefisheriesprovisions.Therelevantsectionofthe
UNConventionontheLawoftheSeaisPartVIISec.2,entitled‘ConservationandManagementof
theLivingResourcesoftheHighSeas’(Arts116–120UNConventionontheLawoftheSea).Article
116UNConventionontheLawoftheSearecognizesthatallStateshavetherightfortheir
nationalstoengageinfishingonthehighseas.However,thearticlespecificallysubjectsthatright
tothreefactorsthataredifferentfromthoseofthe1958ConventiononFishingandConservationof
theLivingResourcesoftheHighSeas:a)existingtreatyobligations;b)therightsandduties,as
wellasinterests,ofcoastalStates(provided,interalia,inArts63(2)and64–67UNConventionon
theLawoftheSea);andc)theotherprovisionsofPartVIISec.2UNConventionontheLawofthe
Sea.
7Itappears,therefore,thatthedraftersintendedtheexerciseofthefreedomofhighseasfishing
tobeconditionalupontheseobligationsbeingfulfilled.Thisimportantdifferenceinapproachis
reinforcedbyareadingoftheotherprovisionsofPartVIISec.2UNConventionontheLawofthe
SeatowhichArt.116(c)UNConventionontheLawoftheSearefers.Article117UNConvention
ontheLawoftheSeaimposesonallStatestheindividualandjointdutytotakethenecessary
measuresfortheconservationofthelivingresourcesofthehighseasandArt.118UNConvention
ontheLawoftheSeaimposesacorrelativedutyonStatestoco-operateintheconservationand
managementofhighseaslivingresources.ThisrecognizesthatStatesfishingonthehighseas
mustdothiswithintheframeworkofexistingrelevantregionalorspecies-relatedfisheries
managementorganizations(‘RFMOs’;theissueofcomprehensivecoverageoftheseRFMOswillbe
returnedto;seeparas25–35below).Itcanbearguedthatthepositionofthisdutyofconservation
inthesection,aswellastheunequivocalwayinwhichitisexpressed,makethisaprimaryduty.
Article119UNConventionontheLawoftheSea,whichisentitled‘Conservationoftheliving
resourcesofthehighseas’,shouldthenbereadasprovidingthemeansandmodalitiesforStates
tocomplywiththisprimaryobligation.Article119(1)(a)UNConventionontheLawoftheSea
requiresthetakingofmeasuresto‘maintainorrestorepopulationsofharvestedspeciesatlevels
whichcanproducethemaximumsustainableyield’,andthesemeasuresmustbebased‘onthe
bestscientificevidenceavailable’andmustaccommodaterelevantenvironmentalaswellas
economicfactorsincluding
thespecialrequirementsofdevelopingStates,andtakingintoaccountfishingpatterns,the
interdependenceofstocksandanygenerallyrecommendedinternationalminimum
standards,whethersubregional,regionalorglobal.
8Commentatorshavecalledtheserequirements‘rathervague’,buttheyareclearlydesignedto
linktoevolvingstandardsandtherequirementsofotherinstruments.
9Inthesamevein,indeterminingsuchmeasures,Statesarealsoobligedtotakeinto
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
EPIL Contributors; date: 09 April 2015
36
consideration,
theeffectsonspeciesassociatedwithordependentuponharvestedspecieswithaviewto
maintainingorrestoringpopulationsofsuchassociatedordependentspeciesabovelevels
atwhichtheirreproductionmaybecomeseriouslythreatened.(Art.119(1)(b)UN
ConventionontheLawoftheSea)
10Itisnoteworthy,however,thatthereisnorequirementthattheseassociatedordependent
speciesbeharvestedorevenharvestable.Indeed,theformulationinArt.119(1)(a)UN
ConventionontheLawoftheSeaofmaximumsustainableyield(‘MSY’)asqualifiedby
environmentalandeconomicfactors,hasbeenreadtobeadescriptionofthe‘optimumutilization’
concept.Inaddition,thewordsofArt.119(1)(a)UNConventionontheLawoftheSea‘tomaintain
orrestorepopulationsofharvestedspeciesatlevelswhichcanproduce’(emphasisaddedbythe
author)suchutilization,canbeseentobeenablingratherthanobligatory.Stateswhosenationals
arefishingonthehighseasarenot,itseems,activelyobligedtopursuetheobjectiveofoptimum
utilizationforthemselves,buttheyareobligednottohamperthepursuanceofthisobjectiveby
otherStates.Indeed,incontrastwithArt.62UNConventionontheLawoftheSea,whichobliges
coastalStatesto‘promotetheobjectiveofoptimumutilizationofthelivingresources’withintheir
ownEEZs,thehighseasprovisionsdonotappeartorequirethathighseasfishingtakeplaceatthe
MSYbutsimplyrequireStatesengagedinhighseasfishingtoensurethatstocksaremaintainedor
restoredtolevelswhichcan—iewhichhavethepotentialto—producetheMSY.Theabsenceofan
obligationonStatestoexploithighseasstockstoMSYseemstobeentirelyconsistentwiththe
unequivocalandprimaryobligationofconservationofsuchstocksimposedonsuchStatesbyArt.
117UNConventionontheLawoftheSea.
11However,anumberofotherprovisionsoftheUNConventionontheLawoftheSearelateto
specieswhicharenotonlyharvestedonthehighseas,butalsowithinnationalzones.These
provisions,whichrelatetofishingforstraddlingfishstocksandhighlymigratoryfishspecies
(StraddlingandHighlyMigratoryFishStocks),havebeenfamouslycalledan‘unfinishedagenda’of
theUNCLOSIIInegotiations,andtheyresultedintheneedforsupplementationbythe1995UNFish
StocksAgreement(seeparas19–21below).TheUNConventionontheLawoftheSeaobligations
arelargelyhortatory—imposingobligationstonegotiateingoodfaithratherthantoreach
agreement(seealsoGoodFaith[Bonafide]).Forexample,Art.63(2)UNConventionontheLawof
theSea,whichcoverstransboundaryorstraddlingstocks,strictusenso,thatoccurwithinoneor
moreEEZsorwithinanEEZandanadjacenthighseasarea,requiresthat
thecoastalStateandtheStatesfishingforsuchstocksintheadjacentareashallseek,
eitherdirectlyorthroughappropriatesubregionalorregionalorganizations,toagreeupon
themeasuresnecessaryfortheconservationofthesestocksintheadjacentarea.
(emphasisaddedbytheauthor)
12Article64UNConventionontheLawoftheSeaonhighlymigratoryspecies,suchastuna,also
imposesahortatoryobligationtoco-operate.ControversyhassurroundedtheinterpretationofArt.
64UNConventionontheLawoftheSea,forsomeStates,notablytheUSA,havearguedthattuna
speciescanneverbesubjecttocoastalStatejurisdiction(seealsoMaritimeJurisdiction).
Nevertheless,thiscontroversyhasnotrelatedtotheoverallobjectiveofArt.64UNConventionon
theLawoftheSea,whichistoco-operate‘withaviewtoensuringconservationandpromotingthe
objectiveofoptimumutilizationofsuchspeciesthroughouttheregion,bothwithinandbeyondthe
exclusiveeconomiczone’.
13Inthesamevein,Art.66UNConventionontheLawoftheSeadealswithfishingfor
anadromousstocksiestocks,suchassalmon,thatliveintheseaandspawninfreshwater.Such
fishingcannotnormallytakeplaceinthehighseas.Article66(2)UNConventionontheLawofthe
SeaimposesontheStateoforigintheobligationto‘ensuretheirconservationbytheestablishment
ofappropriateregulatorymeasures’andprohibitsfishingforsuchstocksoutsidetheEEZ‘exceptin
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
EPIL Contributors; date: 09 April 2015
37
caseswherethisprovisionwouldresultineconomicdislocationforaStateotherthantheStateof
origin’(Art.66(3)(a)UNConventionontheLawoftheSea).Insuchexceptionalcaseswherehigh
seasfishingispermitteditmustbeprecededby(againhortatorywording)‘consultationswitha
viewtoachievingagreementontermsandconditionsofsuchfishinggivingdueregardtothe
conservationrequirementsandtheneedsoftheStateoforigininrespectofthesestocks’(Art.66
(3)(a)UNConventionontheLawoftheSea;emphasisaddedbytheauthor;notealsoArt.66(3)
(b)UNConventionontheLawoftheSea).Similarprovisionsapplytocatadromousspecies,such
aseels,whichliveinfreshwaterbutbreedinsaltwaterandwhichmaynotbeharvestedonthe
highseas(Art.67UNConventionontheLawoftheSea).
14Somementionshouldalsobemadeofmarinemammals,forunderArt.120UNConventionon
theLawoftheSeatheprovisionsofArt.65UNConventionontheLawoftheSeaalsoapplytothe
highseas.TheregimeenvisagedbyArts65and120UNConventionontheLawoftheSeaissui
generisinthatutilizationdoesnotappearinthewording.Conservationandmanagementisthe
onlyobligation.Statesareobligedto
cooperatewithaviewtotheconservationofmarinemammalsandinthecaseof
cetaceansshallinparticularworkthroughtheappropriateinternationalorganizationsfor
theirconservation,managementandstudy.(Art.65UNConventionontheLawoftheSea)
15ThefactthattheUNConventionontheLawoftheSeadidnotsettleprinciplesapplicabletothe
exploitationofsuchstraddlingandhighlymigratorystocksbecameasourceofimmediateproblems
foranumberofcoastalStatesconcernedthatimportantstocksthattheyharvestedwithintheir
EEZsorEFZsweresubjecttounregulatedexploitationintheadjacenthighseasareas.Anumberof
Statesbegantotakeaction:theUSAinstigatedthenegotiationofatreatyregulatingthepollock
fisheryinthehighseas‘donuthole’intheBeringSea;theRussiansimposedaunilateralbanon
fishinginthehighseas‘peanuthole’intheSeaofOkhotsk(seealsoUnilateralActsofStatesin
InternationalLaw);andafewStates,includingCanada,Chile,Peru,andArgentinachangedtheir
lawstoenablethemtoexercisejurisdictionbeyond200nauticalmilesinrelationtotheotherwise
unregulatedexploitationofstraddlingfishstocks,orexploitationofsuchstocksbyforeignvessels
inbreachofapplicableconservationmeasures.
16ThesedevelopmentsculminatedinthearrestinFebruary1995oftheSpanishregistered
vessel,theEstai,byCanadianfisheriesprotectionofficersoutsidetheCanadian200nauticalmile
EFZforallegedlyfishinginbreachoftheconservationandmanagementmeasuresofthe
applicableRFMO—theNorthwestAtlanticFisheriesOrganization(‘NAFO’).TheresultingSpanish
actionbeforetheICJwasdeclinedforlackofjurisdictionin1998intheFisheriesJurisdictionCase
(SpainvCanada).
17Itwas,however,thethreatthatunilateralmeasureswouldunderminetheUNConventiononthe
LawoftheSeathatpromptedagroupoffishingStatestoplacetheissueoftheproperregulationof
straddlingfishstocksontheagendaoftheJune1992UNCEDinRiodeJaneiro.InMay1992the
Mexicangovernmentconvenedameetingofsome49Statesrepresentingabout70%oftheworld’s
fishingcapacity.TheresultingCancúnDeclarationonResponsibleFishing,calledontheFAOto
beginworkondevelopinganInternationalCodeofConductforResponsibleFishingandonStates
toagreetotheconveningofaninternationalconferenceonhighseasfisheries.AtUNCED,para.
17.49ofAgenda21,the600pageenvironmentalactionplanfinalizedbytheconference,
mandatedtheUNtoconveneaconferenceonstraddlingfishstocksandhighlymigratoryfish
stocks.Chapter17alsocalledonStatestotakeeffectiveactiontodeterreflaggingoffishingboats
(paras17.52–17.53Agenda21),inresponsetowhichtheFAOconvenedanexpertgroupto
developadraftconventionwhicheventuallybecamethe1993FAOAgreementtoPromote
CompliancewithInternationalConservationandManagementMeasuresbyFishingVesselsonthe
HighSeas(‘FAOComplianceAgreement’).
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EPIL Contributors; date: 09 April 2015
38
C.1993FAOAgreementtoPromoteCompliancewith
InternationalConservationandManagementMeasuresbyFishing
VesselsontheHighSeas
18NegotiatedquicklyintheaftermathofUNCED,theFAOComplianceAgreementsetsouta
numberofmeasureswhichStatesmusttakeregardingfishingvesselsflyingtheirflag(‘flag
vessels’).Theseapplytoallfishingvesselsusedforfishingonthehighseas(Art.II(1)FAO
ComplianceAgreement),butaStatemay,subjecttosomeconditions,exemptvesselslessthan24
metresinlength(Art.II(2)FAOComplianceAgreement)—althoughthisdiscretionhasnowbeen
removedforStatespartytothe1995UNFishStocksAgreement(Art.18UNFishStocks
Agreement).Partiestotheagreementmusttakemeasurestoensurethatitsflagvesselsdonothing
tounderminetheeffectivenessofinternationalconservationandmanagementmeasures(Art.III(1)
FAOComplianceAgreement);theymaynotauthorizeafishingvesseltobeusedforfishingonthe
highseasunlesstheycaneffectivelyexercisetheirresponsibilitiesundertheagreementinrelation
tothatvessel(Art.III(3)FAOComplianceAgreement).Partiesmusttakethenecessarymeasuresto
ensuretheirflagvesselsdonotengageinanyactivitythatunderminestheeffectivenessof
internationalconservationandmanagementmeasures(Art.III(1)(a)FAOComplianceAgreement),
theymustensurethattheirflagvesselsarenotusedforfishingonthehighseasunlessexpressly
authorizedbytheappropriateauthorities(Art.III(2)FAOComplianceAgreement),theymust
establishanationalrecordoftheirflagvesselsentitledtofishonthehighseas(Art.IVFAO
ComplianceAgreement),co-operatewithotherstatestoensuretheeffectivenessofinternational
conservationandmanagementmeasure(Art.VFAOComplianceAgreement),andmakeavailable
toFAOallthedetailsregardingtheirflagvesselscollectedintheregisterestablishedunderArtIV
(Art.VIFAOComplianceAgreement).
D.1995AgreementfortheImplementationoftheProvisionsof
theUnitedNationsConventionontheLawoftheSeaof10
December1982relatingtotheConservationandManagementof
StraddlingFishStocksandHighlyMigratoryFishStocks
19This‘implementingagreement’wastheresultoffiveplenarynegotiatingsessionsbetweenJuly
1993anditsfinalizationinAugust1995.Itintroducedalargenumberofmodernfisheries
managementprovisionsintotheinternationalregimeforstraddlingfishstocksandhighlymigratory
fishstocks.TheUNFishStocksAgreementcommitsitspartiestothesustainableuseofsuch
stocks;itendorsesanecosystemapproach(Art.5UNFishStocksAgreement)andaprecautionary
approachtotheconservationofthesestocks(Art.6UNFishStocksAgreement,withaclear
methodologyforitsapplicationtocapturefisheriessetoutinAnnexII;Precautionary
Approach/Principle).
20PartIVUNFishStocksAgreementiscentraltothebasicconcernsoftheagreement.It
addressestheso-called‘freerider’issue—theproblemofvesselswhichflytheflagofStateswhich
arenotpartytoregionaltreatiesorarrangementsandyetcontinuetofishinrelevanthighseas
areasandrefusetocomplywithappropriateconservationandmanagementmeasures.The
agreementaffirmstheprinciplethattheflagStatesofsuchvesselsarestillrequiredtoobservethe
obligationstoco-operatesetoutinArts63and64UNConventionontheLawoftheSeaaswellas
theprovisionsoftheagreementitself(Art.17(1)UNFishStocksAgreement).Itdoes,however,also
requirethataccesstohighseasfisheryresourcesisdependentuponmembershipofthe
regulatoryorganizationwhichhasestablishedconservationandmanagementmeasuresforthat
fishery(Art.8(4)UNFishStocksAgreement).Moreover,Stateswhichdonotcomplywiththe
obligationstoco-operatereferredtoaboveandwhichdonottakeadvantageofthemembership
opportunitiesaffordedbyArt.8(3)UNFishStocksAgreement,concerningsubregionalorregional
fisheriesmanagementorganizationsorarrangements,areprohibitedfromauthorizingvessels
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EPIL Contributors; date: 09 April 2015
39
flyingtheirnationalflagfromengaginginfishingforstraddlingorhighlymigratoryfishstockswithin
therelevantregion(Art.17(2)UNFishStocksAgreement).Asan‘implementingagreement’theUN
FishStocksAgreementdoesnotformallyamendtheUNConventionontheLawoftheSea,but
manyofitsprovisionsdoruninadvanceoftheconventionandsomecommentatorshave
suggestedthatPartIV,inparticular,underminesthebasicconceptoffreedomoffishingonthehigh
seas,andmaybeseenasadeparturefromtheletteroftheUNConventionontheLawoftheSea.
Itshouldbenotedhoweverthat,asdiscussedabove,freedomoffishingasenvisagedbythe
conventionisnotanunconditionalright,asitdoesinvolvethefulfilmentofreciprocalobligations
(Reciprocity).
21Article18UNFishStocksAgreementrecognizestheprimaryobligationsofflagStatesto
regulatethevessels,butalsoPartVIUNFishStocksAgreementprovidesthemodalitiesfor
improvedcompliancewithandenforcementofconservationandmanagementmeasuresonthe
highseas,includingbyinnovativemeansofinternationalandregionalco-operation(Arts20–22UN
FishStocksAgreement),andintroducesthepowerforportStatestotakeenforcementmeasures
(Art.23UNFishStocksAgreement;seealsoPortStateJurisdiction).Byestablishingtheparameters
fortheexerciseofwhatcouldbecalleda‘conditional’freedomtofish,theUNFishStocks
Agreementsupportslongtermsustainabilityofhighlymigratoryandstraddlingstocksandpromotes
theiroptimumutilizationbasedonthebestscientificevidenceavailable.Itisimportanttoremember
howeverthattheUNFishStocksAgreementonlybindsitspartiesandonlyappliestocertain
species,nevertheless,theprincipleswhichitendorses—particularlythoseoflongterm
sustainabilityusingthe‘bestscientificevidenceavailable’,theecosystem,andtheprecautionary
approach—havebeenrecognizedbytheUNGeneralAssembly(‘UNGA’)asimportantgeneral
principlesforallfisheriesmanagement,supportingthepredictionsofsomecommentatorsthatover
timeitwillcometoberegardedascustomarylaw.In2004,UNGAResolution59/24of17November
2004(GAOR59th SessionSupp49,volI,20)requestedtheUNSecretary-Generaltoconvenea
reviewconferenceasrequiredbyArt.36UNFishStocksAgreement.Thereviewconferencetook
placeattheUNheadquartersinNewYorkinMay2006.
E.Non-BindingInstruments
22Importantinnovationshavebeenintroducedbynon-bindinginstrumentssomeofwhichhave
crystallizedintotreatylaw(seealsoNon-BindingAgreements;SoftLaw).Anotableexampleisthe
UNGAResolution44/225of22December1989entitledLargeScalePelagicDriftnetFishingandIts
ImpactontheLivingMarineResourcesoftheWorld’sOceansandSeas,whichrecommendsa
numberofmeasurestoeliminatethepractice,includingmoratoriaonalllarge-scaledriftnetfishing
onthehighseasby30June1992.Implementationhasbeenattheregionallevelincludingthe
ConventionfortheProhibitionofFishingwithLongDriftnetsintheSouthPacific([signed24
November1989,enteredintoforce17May1991]29ILM1449).
23ImmediatelyafterthefinalizationofthetextoftheUNFishStocksAgreement,FAOfinalizedits
CodeofConductforResponsibleFisheries—pursuanttothemandateithadbeengivenbythe1992
Cancúnmeeting.Thisnon-bindingcodeendorsedbyFAO’sCommitteeonFisheries(‘FAOCOFI’)in
1995incorporatesvirtuallythesameprinciplesendorsedbytheUNFishStocksAgreement.Since
thenFAOhassoughttoaddressanumberofotherimportantthreatstosustainablefisheriesbya
seriesofnon-bindinginstrumentscalledInternationalPlansofAction(‘IPOA’).ThreeIPOAwere
adoptedatthe23rd FAOCOFIsessionin1999:theIPOAforReducingIncidentalCatchofSeabirds
inLonglineFisheries;theIPOAfortheConservationandManagementofSharks;andtheIPOAfor
theManagementofFishingCapacity.InJune2001theFAOCouncilendorsedtheIPOAStopping
Illegal,UnreportedandUnregulatedFishing(‘IUUfishing’).Itcontainsanextensive‘toolkit’of
actionsthatStatescantakeagainstsuchvessels.
24The2001ReykjavikDeclarationonResponsibleFisheriesintheMarineEcosystem(‘Reykjavik
Declaration’)includedadeclarationbytheStatesattendingtheReykjavikmeetingthattheywould
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40
worktoincludeecosystemconsiderationsinfisheriesmanagementactivities.The2002Planof
ImplementationoftheWorldSummitonSustainableDevelopmentcalledfor,amongstotherthings,
theapplicationoftheReykjavikDeclarationby2010asoneofthestepsessentialforensuringthe
sustainabledevelopmentoftheoceans.
F.InternationalFisheriesManagementOrganizations
25Therearefiveregionalorganizationsresponsiblefortheconservationandmanagementofhigh
seasstocks,andfiveregionalorganizationsresponsiblefortunaspecies.Theseorganizationsdo
not,however,providecomprehensivecoverageofallexploitablehighseasfishstocks,exposing
thosestocksnotregulatedbythesetoanevengreaterriskofIUUfishingactivities.
1.RegionalFisheriesManagementBodies
26TheCommissionfortheConservationofAntarcticMarineLivingResources,establishedbythe
ConventionontheConservationofAntarcticMarineLivingResources(‘CCAMLR’)cameintoforce
in1982asapartoftheAntarcticTreatySystem,inpursuanceoftheprovisionsofArt.IXCCAMLR
(Antarctica).Althoughnotstrictlyafisheriesagreement(FisheriesAgreements),CCAMLRdoes
envisage‘rationaluse’anditisthefirstinternationalagreementtoreflectanecosystemapproach
—foritregulatestheAntarcticmarinelivingresourcesoftheareasouthof60°Southlatitudeandto
theAntarcticmarinelivingresourcesoftheareabetweenthatlatitudeandtheAntarctic
Convergence,whichformpartoftheAntarcticmarineecosystem(Art.ICCAMLR).
27TheGeneralFisheriesCommissionfortheMediterraneanwasestablishedbytheAgreementfor
theEstablishmentoftheGeneralFisheriesCouncilfortheMediterranean([done24September
1949,enteredintoforce20February1952]126UNTS237)negotiatedundertheprovisionsofArt.
XIVConstitutionoftheFoodandAgriculturalOrganization([adopted16October1945,enteredinto
force16October1945]145BSP910).
28TheConventiononFutureMultilateralCooperationintheNorthwestAtlanticFisheries([signed
24October1978,enteredintoforce1January1979]1135UNTS369)replacedtheInternational
CommissionoftheNorthwestAtlanticFisheries.
29TheNorthEastAtlanticFisheriesCommission(‘NEAFC’)replacedthepreviousorganizationof
thesamename,bytheConventiononFutureMultilateralCooperationinNorth-EastAtlantic
Fisheries([signed18November1980,enteredintoforce17March1982]1285UNTS129).Atthe
24th meetingofthepartiesin2005theyapprovedaDeclarationontheInterpretationand
ImplementationoftheConventionontheFutureMultilateralCooperationinNorth-EastAtlantic
FisheriesagreeingtoincorporatethepostUNCEDglobalagreementsandinstrumentsintotheirown
regime.In2006NEAFCwasthefirstRFMOtoundertakeaperformancereviewasrecommendedby
FAOCOFIforallRFMOs.
30TheSouth-EastAtlanticFisheriesOrganisationwasestablishedbytheConventiononthe
ConservationandManagementofFisheryResourcesintheSouthEastAtlanticOcean([done20
April2001,enteredintoforce13April2003]2221UNTS189)—itisthefirstgeneralfisheries
conventiontohavebeennegotiatedafterthe1995UNFishStocksAgreementandtoreflectits
requirements.
2.InternationalTunaCommissions
31TheInter-AmericanTropicalTunaCommission,establishedbytheConventionbetweenthe
UnitedStatesofAmericaandtheRepublicofCostaRicafortheEstablishmentofanInter-American
TropicalTunaCommission([signed31May1949,enteredintoforce3March1950]80UNTS3)is
responsiblefortheconservationandmanagementoffisheriesfortunasandotherspeciestakenby
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EPIL Contributors; date: 09 April 2015
41
tuna-fishingvesselsintheeasternPacificOcean.
32TheInternationalCommissionfortheConservationofAtlanticTunasestablishedbythe
InternationalConventionfortheConservationofAtlanticTunas([done14May1966,enteredinto
force21March1969]673UNTS63)appliestoallwatersoftheAtlanticOceanandadjacentseas,
includingtheMediterraneanSea.
33TheIndianOceanTunaCommissionismandatedtomanagetunaandtuna-likespeciesinthe
IndianOceanandadjacentseas.OriginallyestablishedbytheAgreementfortheEstablishmentof
theIndianOceanTunaCommission([signed25November1993,enteredintoforce27March1996]
1927UNTS329),negotiationsarecurrentlyunderwaytochangeitslegalbasis.
34TheCommissionfortheConservationofSouthernBluefinTunareplacedthepreviousvoluntary
managementarrangementbetweenAustralia,Japan,andNewZealandandwasformalizedbythe
threecountriesintheConventionfortheConservationofSouthernBluefinTuna([signed10May
1993,enteredintoforceon20May1994]1993WTS1);itisnowopentootherSouthernBluefin
TunafishingStates.InJuly1999AustraliaandNewZealandbroughtactionsintheInternational
TribunalfortheLawoftheSea(ITLOS)seekinganorderrestrainingJapanfromimplementingits
experimentalfishingprogrammeonthegroundsthatitviolatedtheConventionfortheConservation
ofSouthernBluefinTuna(SouthernBluefinTunaCases).Aprovisionalmeasuresorderwasgranted
andthesubstantiveissuewasreferredtoanarbitraltribunalconstitutedunderAnnexVIIUN
ConventionontheLawoftheSea,whichintheSouthernBluefinTunaCase(AustraliaandNew
ZealandvJapan)(AwardonJurisdictionandAdmissibilityof4August1999)((2000)39ILM1359)
foundthatitdidnothavejurisdiction.
35TheCommissionfortheConservationandManagementofHighlyMigratoryFishStocksinthe
WesternandCentralPacificOceanwasestablishedbytheConventionontheConservationand
ManagementofHighlyMigratoryFishStocksintheWesternandCentralPacificOcean([signed5
September2000,enteredintoforce19June2004](2001)40ILM278).Theconventionwasthefirst
regionaltunafisheriesagreementtobeadoptedaftertheconclusionofthe1995UNFishStocks
Agreement,anditreflectsitsrequirements.
G.Assessment
36Theinternationallawofhighseasfisheriesisanissueofcurrentconcernandactivitywithinthe
internationalcommunity.Theharvestingofhighseasfishstocksisalucrativeactivityproviding
importantproteinforhumanconsumption,butthereisevidenceofseriousdepletioninthelarger
pelagicspecies,suchastunasandbillfishes,resultinginfishingforsmallerspecies,lowerdown
thetrophiclevels.Thisinturngivesrisetoquestionsastotheimpactofsuchfishingonthewhole
marineecosystemanditslong-termsustainability.
37TheframeworkregimeestablishedbytheUNConventionontheLawoftheSeadoesaddress
theimportanceofincorporatingenvironmentalconcernsintomarineconservationand
managementregimes,butthatframeworkhasbeentransformedbythenewecosystem
maintenanceandconservationofbiologicaldiversityconcernsintroducedbythe1992UNCED,
notablythroughthe1995UNFishStocksAgreementandthelargenumberofnon-binding
instrumentswhichhavefollowedit.TheConventiononBiologicalDiversity([concluded5June
1992,enteredintoforce29December1993]1760UNTS79)itselfcontainslittleonmarine
biodiversityconservation,butactingunderthemandateoftheJakartaMandateonthe
ConservationandSustainableUseofMarineandCoastalBiologicalDiversity(inUNGA,‘Reportof
theSecondMeetingoftheConferenceofthePartiestotheConventiononBiologicalDiversity,held
atJakartafrom6to17November1995’(9September1996)UNDocA/51/312AnnexII,Decision
II/10)thepartieshavedevelopedimportantguidelinesfortheprotectionofbiodiversityinareas
beyondnationaljurisdiction,includingthedesignationofprotectedareas.
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EPIL Contributors; date: 09 April 2015
42
38Ofcourse,overfishingisnottheonlythreattomarinebiodiversity,butoverfishingofhighseas
fishstocks,particularlyfromIUUfishingactivities,hasbeenthesubjectofanumberofongoing
internationalactivities.Theunregulatedexploitationofdeep-seafishstockssuchasorangeroughy
andtoothfish,includingbybottomtrawlingoveruniqueseamountecosystems,haspromptedwide
concern.In2004,UNGAResolution59/25of17November2004(GAOR59th SessionSupp49vol1,
30)calledonStatesactingindividuallyorthroughRFMOsto
takeactionurgently,andconsideronacasebycasebasisandonascientificbasis,
includingtheapplicationoftheprecautionaryapproach,theinterimprohibitionof
destructivefishingpractices,includingbottomtrawlingthathasadverseimpactson
vulnerablemarineecosystems,includingseamounts,hydrothermalventsandcoldwater
coralslocatedbeyondnationaljurisdiction,untilsuchtimeasappropriateconservationand
managementmeasureshavebeenadoptedinaccordancewithinternationallaw.(atpara.
66)
39However,in2006aproposaltotheUNGAtosupportatotalbanondeep-seabottomtrawling
wasdefeated,buttheUNGAdid(byUNGARes61/105[8December2006]GAOR61stSessionSupp
49vol1,53)requesttheFAOtodevelopguidelinesfortheprotectionofvulnerablemarine
ecosystems.Pursuanttothismandate,inMarch2007,theFAOCOFIrequestedthedevelopmentof
InternationalGuidelinesfortheManagementofDeep-SeaFisheriesintheHighSeastoassistStates
andregionalfisheriesmanagementorganizationsandarrangementsinsustainablymanagingdeepseafisheries.TheseguidelineswereadoptedinAugust2008.
40DespitetheleadershiproletakenbyNEAFC,thereisaconcernthatRFMOsestablished
primarilyforexploitationhavenotbeenabletoadaptquicklyenoughtoamodernapproachto
conservationandmanagementbasedontheecosystemconservationprinciplessetoutintheUN
FishStocksAgreementandnowalsoendorsedbytheUNGA.ImprovedenforcementbyRFMOsof
theirmanagementregulationsisalsoseenasavitalcomponentofinternationalactionagainstIUU
fishing.InadditiontotheFAOIPOA,theOrganizationforEconomicCo-operationandDevelopment
(OECD)establishedahighlevel‘Ministerially-ledTaskForceonIUUFishingontheHighSeas’that
proposedanewactionplantoaddressthis‘seriousglobalproblem’includingguidelinesforthe
reformofRFMOs.FAOhasalsoinitiatedthenegotiationofanewinternationaltreatytoauthorize
portStatemeasurestoapprehendandpunishIUUfishing.
41In2006ontherecommendationoftheUNOpen-endedInformalConsultativeProcesson
OceansandtheLawoftheSea,theUNGAestablishedanAdHocOpen-endedInformalWorking
Grouptostudyissuesrelatingtotheconservationandsustainableuseofmarinebiological
diversitybeyondareasofnationaljurisdiction.Twomeetingsofthisgrouphavehelpedtofocus
informedopiniononthemajorissuesfacingthehighseas;however,themanyproposalsfor
improvedgovernance,includingthroughanotherimplementingagreementasproposedbythe
countriesoftheEuropeanUnion,havebeenovershadowedbycontroversyoverthefutureregime
forexploitationofmarinegeneticresourcesbeyondnationaljurisdiction.
SelectBibliography
HGrotiusandRvanDemanMagoffin(tr),TheFreedomoftheSeas(OUPNewYork1916).
AWKoersInternationalRegulationofMarineFisheries:AStudyofRegionalFisheries
Organizations(FishingNewsWestByfleet1973).
WTBurke‘HighlyMigratorySpeciesintheNewLawoftheSea’(1983)14OceanDev&IntlL
273–314.
EHeyandWTBurkeTheRegulationofDriftnetFishingontheHighSeas(FAORome1991).
MCorralSuárezLaconservacióndelosrecursosbiológicosdelmarenelderecho
internacionalvigente(UniversidaddeValladolidValladolid1993).
BKwiatkowska‘TheHighSeasFisheriesRegime:AtaPointofNoReturn?’(1993)8IJMCL
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EPIL Contributors; date: 09 April 2015
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327–58.
WTBurkeTheNewInternationalLawofFisheries:UNCLOS,1982andBeyond(Clarendon
PressOxford1994).
D Freestone ‘TheEffectiveConservationandManagementofHighSeasLivingResources:
TowardsaNewRegime?’(1994)5CanterburyLawReview341–62.
WVDunlap‘BeringSea:TheDonutHoleAgreement’(1995)10IJMCL114–26.
MHayashi‘The1995AgreementontheConservationandManagementofStraddlingand
HighlyMigratoryFishStocks:SignificancefortheLawoftheSeaConvention’(1995)29
Ocean&CoastalMgmt51–69.
GMoore‘FAO:TheFoodandAgricultureOrganisationoftheUnitedNationsCompliance
Agreement’(1995)10IJMCL412–16.
AGOudeElferink‘FisheriesintheSeaofOkhotskHighSeasEnclave:TheRussian
Federation’sAttemptsatCoastalStateControl’(1995)10IJMCL1–18.
D Freestone andZMakuch‘TheNewInternationalEnvironmentalLawofFisheries:The
1995UnitedNationsStraddlingStocksAgreement’(1996)7YIntlEnvL3–51.
MBadenesCasinoLacrisisdelalibertaddepescaenaltamar(McGraw-HillMadrid1997).
MMGoote‘ConventiononBiologicalDiversity:TheJakartaMandateonMarineandCoastal
BiologicalDiversity’(1997)12IJMCL377–95.
RRChurchillandAVLoweTheLawoftheSea(3rd edManchesterUniversityPress
Manchester1999).
D Freestone ‘ImplementingPrecautionCautiously:ThePrecautionaryApproachinthe
StraddlingandHighlyMigratoryFishStocksAgreement’,inEHey(ed),Developmentsin
InternationalFisheriesLaw(KluwerLawInternationalTheHague1999)287–325.
D Freestone ‘InternationalFisheriesLawSinceRio:TheContinuedRiseofthe
PrecautionaryPrinciple’,inABoyleandD Freestone (eds),InternationalEnvironmental
LawandSustainableDevelopment:PastAchievementsandFutureChallenges(OUPOxford
1999)135–64.
FOrregoVicuñaTheChangingInternationalLawofHighSeasFisheries(CUPCambridge
1999).
EHey(ed)DevelopmentsinInternationalFisheriesLaw(KluwerLawInternationalThe
Hague1999).
SMKayeInternationalFisheriesManagement(KluwerLawInternationalTheHague2001).
AJackson‘TheConventionontheConservationandManagementofFisheryResourcesin
theSouthEastAtlanticOcean,2001’(2002)17IJMCL33–77.
MLeHardyQuereste-t-ildelalibertédelapêcheenhautemer?:Del’exploitation
individuelleêlagestioncollective;essaisurlerégimejuridiquedel’exploitationdes
ressourcesbiologiquesdelahautemer(PedoneParis2002).
EMVázquezGómezLasorganizacionesinternacionalesdeordenaciónpesquera:La
cooperaciónparalaconservaciónylagestióndelosrecursosvivosdealtamar(Juntade
AndaluciaConsejeriadeArgiculturayPescaSevilla2002).
MIglesiasBerlangaLaregulaciónjurídicadelosrecursosvivosdelaaltamar:especial
referenciaalosinteresesespañoles(EditorialDilexMadrid2003).
D Freestone andKMGjerde‘UnfinishedBusiness:Deep-SeaFisheriesandthe
ConservationofMarineBiodiversitybeyondNationalJurisdiction’(2004)19IJMCL209–363.
MWLodgeandSNNandan‘SomeSuggestionstowardsBetterImplementationoftheUnited
NationsAgreementonStraddlingFishStocksandHighlyMigratoryFishStocksof1995’(2005)
20IJMCL345–79.
EJMolenaar‘AddressingRegulatoryGapsinHighSeasFisheries’(2005)20IJMCL533–70.
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inHighSeasFisheries’(2005)20IJMCL509–32.
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OceanTunaCommissionOutsidetheFrameworkofFAO’(2007)22IJMCL485–515.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
EPIL Contributors; date: 09 April 2015
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SelectDocuments
AgreementfortheImplementationoftheProvisionsoftheUnitedNationsConventiononthe
LawoftheSeaof10December1982relatingtotheConservationandManagementof
StraddlingFishStocksandHighlyMigratoryFishStocks(done4August1995,enteredinto
force11December2001)2167UNTS3.
AgreementtoPromoteCompliancewithInternationalConservationandManagement
MeasuresbyFisingVesselsontheHighSeas(signed24November1993,enteredintoforce
24April2003)33ILM968.
ConservationandSustainableExploitationofSwordfishStocksintheSouth-EasternPacific
Ocean(Chile/EuropeanCommunity)(Order)ITLOSCaseNo7(30November2007).
ConventionontheConservationofAntarcticMarineLivingResources(concluded20May
1980,enteredintoforce7April1982)1329UNTS47.
ConventionontheConservationandManagementoftheHighlyMigratoryFishStocksofthe
WesternandCentralPacificOcean(signed5September2000,enteredintoforce19June
2004)2000WTS3.
ConventiononFishingandConservationoftheLivingResourcesoftheHighSeas(done29
April1958,enteredintoforce20March1966)559UNTS285.
ConventiononFutureMultilateralCooperationintheNorth-WestAtlanticFisheries(with
Annexes)(done24October1978,enteredintoforce1January1979)1135UNTS369.
ConventionontheHighSeas(done29April1958,enteredintoforce30September1962)
450UNTS11.
FederalRepublicofGermanyvIcelandFisheriesJurisdictionCase(FederalRepublicof
GermanyvIceland)(Merits)[1974]ICJRep175.
FisheriesJurisdictionCase(SpainvCanada)(JurisdictionoftheCourt)[1998]ICJRep432.
FisheriesJurisdictionCase(UnitedKingdomofGreatBritainandNorthernIrelandvIceland)
(Merits)[1974]ICJRep3.
FoodandAgricultureOrganizationoftheUnitedNations(ed),CodeofConductfor
ResponsibleFisheries(adopted31October1995)(FAORome1995).
FoodandAgricultureOrganizationoftheUnitedNations,‘InternationalGuidelinesforthe
ManagementofDeep-SeaFisheriesintheHighSeas’,inFoodandAgricultureOrganizationof
theUnitedNations(ed),ReportoftheTechnicalConsultationonInternationalGuidelinesfor
theManagementofDeep-SeaFisheriesintheHighSeas(FAORome2009)39.
FoodandAgricultureOrganizationoftheUnitedNations(ed),InternationalPlanofActionfor
ReducingIncidentalCatchofSeabirdsinLonglineFisheries;InternationalPlanofActionfor
theConservationandManagementofSharks;InternationalPlanofActionforthe
ManagementofFishingCapacity(FAORome1999).
FoodandAgricultureOrganizationoftheUnitedNations,‘ReykjavikDeclarationon
ResponsibleFisheriesintheMarineEcosystem’(adopted4October2001).
FoodandAgricultureOrganizationoftheUnitedNations(ed),TheStateofWorldFisheries
andAgriculture2008(FAORome2009).
FoodandAgricultureOrganizationoftheUnitedNations(ed),StoppingIllegal,Unreported
andUnregulatedFishing(FAORome2002).
InternationalConferenceonResponsibleFishing,‘CancúnDeclaration’(adopted6–8May
1992),inJFCaddyandRCGriffiths,LivingMarineResourcesandTheirSustainable
Development:SomeEnvironmentalandInstitutionalPerspectives(FAORome1995)Annex
V.
JakartaMandateonMarineandCoastalBiologicalDiversity(adopted17November1995)
(1997)12IJMCL390–5.
NEAFC,‘DeclarationontheInterpretationandImplementationoftheConventionontheFuture
MultilateralCooperationinNorth-EastAtlanticFisheries’(14–18November2005)(London
Declaration).
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
EPIL Contributors; date: 09 April 2015
45
Measures)ITLOSCasesNos3,4(27August1999).
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A/CONF.151/26/Rev1volI,9.
UNGA,‘ReportoftheUnitedNationsConferenceonEnvironmentandDevelopment’(3–14
June1992)UNDocA/CONF.151/26.
UNGARes44/225(22December1989)44th SessionSupp49vol1,147.
UnitedNationsConventionontheLawoftheSea(concluded10December1982,entered
intoforce16November1994)1833UNTS396.
UNWorldSummitonSustainableDevelopment,‘PlanofImplementationoftheWorldSummit
onSustainableDevelopment’,inUN,‘ReportoftheWorldSummitonSustainable
Development’(26August–4September2002)UNDocA/CONF.199/20,6.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
EPIL Contributors; date: 09 April 2015
46
Fisheries,Commissionsand
Organizations
DavidFreestone
Contenttype:
EncyclopediaEntries
Articlelastupdated:
December2010
Product: MaxPlanck
EncyclopediaofPublic
InternationalLaw[MPEPIL]
Subject(s):
Regionalorganizations—OtherUNBodies,Agencies,andCommittees—UNCLOS(UNConventionon
theLawoftheSea)—Exclusiveeconomiczone—Fisheries
PublishedundertheauspicesoftheMaxPlanckFoundationforInternationalPeaceandtheRuleofLaw
underthedirectionofRüdigerWolfrum.
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EPIL Contributors; date: 09 April 2015
47
A.Introduction
1Someoftheearliestinternationalcollaborativearrangementsinrelationtotheexploitationof
marineresourcesrelatetotheestablishmentoftreatyarrangementsoverseenbyjointcommissions
(FisheriesAgreements).Todaytherearenearly50internationalfisheriescommissionsand
organizationsworldwidesupplementedbyalmostasmanybilateraljointfisheriescommissions.This
presentcontributionwilllookatthewayinwhichsuchcommissionsarereflectedinthelawofthe
seaconventionregimeaswellasincustomaryinternationallaw.Spacedoesnotpermitdetailed
examinationofalloftheexistingcommissionsandorganizations,butitwillhighlightsomeofthe
commonfeaturesofmanyofthemaswellasthespecificregimesofsomeofthemainglobal
organizations.
2AtatimewhentheFoodandAgricultureOrganizationoftheUnitedNations(FAO)reportsthat
lessthan25%offishstocksaresustainablyexploited,thereisconsiderablepressureonfisheries
commissionstorespondmoreobviouslytocontemporarydevelopmentsintheglobalframeworkof
fisherieslaw.The1992UnitedNationsConferenceonEnvironmentandDevelopment(‘UNCED’)in
RiodeJaneiroandthefollowupUnitedNationsConferenceonStraddlingFishStocksandHighly
MigratoryFishStocksresultedinthefinalizationofthe1995UnitedNationsFishStocksAgreement
(‘UNFSA’;StraddlingandHighlyMigratoryFishStocks)whichwasanimplementingagreementofthe
1982UNConventionontheLawoftheSea.ThenewconceptsandprinciplesthatUNCEDand
UNFSAintroducedintothelanguageofinternationalenvironmentallawandresourcemanagement,
particularlyfisherieslaw,havebeendescribedasa‘revolution’(Boyleand Freestone 1999).If,
however,itisindeedarevolution,thenitisonethathastakenalongtimetoprovidetangible
improvementsinfisheriesgovernance.InthemeantimetheUNGeneralAssemblyitself,alarmedby
reportsofescalatingillegal,unreported,andunregulated(‘IUU’)fishing,ofunsustainableandhighly
damagingfishingpracticesandofthefailureofflagStatestoexercisetheirproperlegal
responsibilities,hastakenonaproactiveroleinreviewingtheroleofinternationalfisheries
organizationsandtheimpactofthefishersthattheyregulateonissuessuchasmarinebiological
diversityinareasbeyondnationaljurisdiction.Thesectionwillconcludewithareviewofthe
measuresthathavebeenurgedonfisheriesorganizationstorespondtosuchconcernsfromthe
internationalcommunity.
3Priortothefinalizationofthetextofthe1982UNConventionontheLawoftheSea,customary
internationallawandindeedtheInternationalCourtofJustice(ICJ)inthe1973FisheriesJurisdiction
Cases(UnitedKingdomvIceland;FederalRepublicofGermanyvIceland)hadrecognizedthe
rightsofcoastalStatestoclaimexclusiverightsoverfisheryresourcesoveranextendedzone
adjacenttotheircoasts(Fisheries,Coastal).Art.55UNConventionontheLawoftheSeaexplicitly
recognizedtheconceptofanextendedexclusiveeconomiczone(‘EEZ’)of200nauticalmiles.
TheresultingenclosureoflargeareaswhichhadpreviouslybeenhighseasasEEZsorexclusive
fisheryzonesmeantthatmanyoftheresourceswhichhadpreviouslybeenhighseasresources
becamesubjecttotheprimarycontrolofthecoastalStateundertheprovisionsofpartVoftheUN
ConventionontheLawoftheSea(Fisheries,HighSeas;FisheryZonesandLimits).Consequently
theregulatoryroleofinternationalmarinefisheriescommissionsandorganizationswas
correspondinglyreduced.Althoughcollaborativefisheriesadvisorybodiesandtechnical
assistancebodiesremained,theroleofRegionalFisheriesManagementOrganizations(‘RFMOs’)
wasconsequentlyreducedtothemanagementoffishstocksintheremaininghighseasareas,or
tothemanagementofstocks,suchasstraddlingandhighlymigratoryfishstocks,suchasbill
fishesortunas,thattheUNConventionontheLawoftheSearecognizedwerenotunderthe
exclusivecontrolofcoastalStatesinwhichtheyoccurred.
B.LegalFramework
4Themajorityofinternationalfisheriescommissionsandorganizationsdealwithmarinecapture
fisheries.However,thereareanumberofinternationaltreatiesdealingwithinlandfisheries.Some
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48
establishjointcommissionswithamanagementrole,whileothersexerciseanadvisoryfunction.
NotableexamplesofmanagementregimesaretheMekongRiverCommissionestablishedin1995
bytheAgreementontheCooperationfortheSustainableDevelopmentoftheMekongRiverBasin
betweenCambodia,Laos,Thailand,andVietnam(MekongRiver),alsotheLakeVictoriaFisheries
OrganizationamongthelittoralStatesofthatlake,Kenya,Uganda,andTanzania(LakeVictoria).
AdvisorybodiesincludetheEuropeanInlandFisheriesAdvisoryCommission,theCommitteefor
InlandFisheriesandAquacultureofAfricawithnearly40members,andtheCommissionforInland
FisheriesofLatinAmerica.Thisdistinctionbetweenmanagementandadvisorybodiesisalsotobe
foundinthemarinesphereaswell.
5Inrelationtooceanfisheries,the1958ConventiononFishingandConservationoftheLiving
ResourcesoftheHighSeashasageneralrecognitionofthedutytocooperateintakingmeasures
fortheconservationofthelivingresourcesofthehighseas(Art.1(2)).Althoughthereisexplicit
recognitionoftheneedto‘enterintonegotiationswithaviewtoprescribingbyagreementfortheir
nationalsthenecessarymeasuresfortheconservation’ofsuchresources(Art.4Conventionon
FishingandConservationoftheLivingResourcesoftheHighSeas),thereisnoexpressrecognition
oftheroleofinternationalfisheriesbodies.UndertheUNConventionontheLawoftheSea,
however,thereisspecialrecognitionoftherolethatsuchorganizationscouldplayincrystallizing
theobligationstocooperatewhicharetobefoundinArts63–67andinsection2ofpartVII(Arts
116–120UNConventionontheLawoftheSea).Art.117UNConventionontheLawoftheSea
imposesonallStatestheindividualandjointdutytotakethenecessarymeasuresforthe
conservationofthelivingresourcesofthehighseas,andArt.118imposesacorrelativedutyon
Statestocooperateintheconservationandmanagementofhighseaslivingresources.This
recognizesthatStatesfishingonthehighseasmustdothiswithintheframeworkoftherelevant
species-relatedorRFMOswhichexist(theissueofcomprehensivecoverageoftheseRFMOswill
bereturnedtobelow).
6However,anumberofotherprovisionsoftheUNConventionontheLawoftheSearelateto
specieswhichareharvestedonthehighseas,butalsowithinnationalzones.Theseprovisions
whichrelatetofishingforstraddlingfishstocksandhighlymigratoryfishspecieshavebeen
famouslycalledan‘unfinishedagenda’ofthethirdUnitedNationsConferenceintheLawoftheSea
(1973–82)negotiations,andtheyresultedintheneedforsupplementationbythe1995UNFish
StocksAgreement.Liketheprovisionsofthe1958ConventiononFishingandConservationofthe
LivingResourcesoftheHighSeas,the1982UNConventionontheLawoftheSeaobligationsare
largelyhortatory—imposingobligationstonegotiateingoodfaithratherthantoreachagreement.
Forexample,Art.63(2)UNConventionontheLawoftheSea,whichcoverstransboundaryor
straddlingfishstocks,strictusenso,thatoccurwithinoneormoreEEZsorwithinanEEZandan
adjacenthighseasarea,requiresthat‘thecoastalStateandtheStatesfishingforsuchstocksin
theadjacentareashallseek,eitherdirectlyorthroughappropriatesub-regionalorregional
organizations,toagreeuponthemeasuresnecessaryfortheconservationofthesestocksinthe
adjacentareas’(emphasisadded).Art.64UNConventionontheLawoftheSeaonhighly
migratoryspecies,suchastuna,alsoimposesanhortatoryobligationtocooperate.Controversy
hassurroundedtheinterpretationofArt.64,forsomeStates,notablytheUnitedStates,have
arguedthattunaspeciescanneverbesubjecttocoastalStatejurisdiction.Nevertheless,this
controversyhasnotrelatedtotheoverallobjectiveofArt.64whichis‘tocooperate...withaview
toensuringconservationandpromotingoptimumutilizationofsuchspeciesthroughouttheregion,
bothwithinandbeyondtheexclusiveeconomiczone’.
7Similarly,Art.66UNConventionontheLawoftheSeadealswithfishingforanadromousstocks
(iestocks,suchassalmon,thatliveintheseaandspawninfreshwater).Suchfishingcannot
normallytakeplaceinthehighseas.Art.66(2)UNConventionontheLawoftheSeaimposeson
theStateoforigintheobligationto‘ensuretheirconservationbytheestablishmentofappropriate
regulatorymeasures’andprohibitsfishingforsuchstocksoutsidetheEEZ‘exceptincaseswhere
thisprovisionwouldresultineconomicdislocationforaStateotherthantheStateoforigin’.Insuch
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49
exceptionalcaseswherehighseasfishingispermitteditmustbeprecededby(againhortatory
wording)‘consultationswithaviewtoachievingagreementontermsandconditionsofsuch
fishinggivingdueregardtotheconservationrequirementsandtheneedsoftheStateoforiginin
respectofthesestocks’(Art.66(3)(a)[emphasisadded];notealsoArt.66(3)(b)).Similar
provisionsapplytocatadromousspecies,suchaseels,whichliveinfreshwater,butbreedinsalt
waterandwhichmaynotbeharvestedonthehighseas(Art.67UNConventionontheLawofthe
Sea).
8Thespecificlegalbasisforthemajorityoffisheriescommissionsisaninternationaltreaty.The
RegionalFisheriesBodies(‘RFBs’)areestablishedbyinternationaltreaties,asarethemajorityof
bilateralarrangementsbetweenneighbouringStatesrelatingtothejointmanagementofashared
resource.
C.BilateralFisheryCommissions
9Asindicated,mostbilateralcommissionsareestablishedbyformaltreaty.Twonotableexamples
ofsuchcommissionsestablishedbyCanadaandtheUSrelatetothemanagementofhalibutand
salmon.TheInternationalPacificHalibutCommissionwasfirstsetupin1923byaConvention
betweenthetwocountries(ConventionbetweentheUnitedStatesandCanadaonthePreservation
oftheHalibutFisheryoftheNorthernPacificOcean[signed2March1923,enteredintoforce24
October1924]32LNTS93);itsmandateistoresearchandmanagethestocksofPacifichalibut
(Hippoglossusstenolepis)withintheconventionwatersofbothnations.ThePacificSalmon
Commissionwasestablishedbythe1985PacificSalmonTreaty(TreatybetweentheGovernmentof
CanadaandtheGovernmentoftheUnitedStatesofAmericaconcerningPacificSalmon)between
thetwocountrieswithasimilarmandateforthatspecies.
10Howeversomebilateralcommissionsarebasedonlessformalarrangements—suchastheJoint
Commissionsetupin1990inthesouth-westAtlanticbyajointstatementbyArgentinaandthe
UnitedKingdom,orbyamemorandumofunderstanding,asinthe1981arrangementforjoint
supervisionandenforcementoffisheriesbetweenIndonesiaandAustraliawhichmaturedintoa
treatyrelationshipin1992.Themajorityofsuchbilateraltreatiesestablishingjointcommissionsare
linkedtoamaritimeboundary.Eitherthemaritimeboundaryagreementprovidesforthe
establishmentofajointresourceexploitationcommission—aswiththe1993Treatybetween
JamaicaandColombiaortheJointTechnicalCommissionfortheArgentina/UruguayMaritime
Boundary(‘CTMFM’)—orthetreatyprovidesforthejointmanagementofsharedstocksinthe
absenceofmaritimedelimitationagreement.ThebestknownexampleofthelatteristheJoint
CommissionbetweenRussiaandNorwayintheBarentsSea—documentedcloselybyChurchilland
Ulfstein,butthereareothers.
D.FAOBodies
11AftertheestablishmentoftheFAOin1945,fisheriesresearchandmanagementwasoneofits
coremandates.ArtIConstitutionoftheFAOdefinestheterm‘agriculture’anditsderivativesto
includefisheriesandmarineproducts.ArtVprovidesthattheFAOCouncil—theexecutivebody—
beassistedbyanumberofcommitteesincludingaCommitteeonFisheries(COFI),whichnowalso
hasresponsibilityforaquaculture.AllFAOmemberscanberepresentedonthiscommittee,which
originallymetannuallybutsince1977hasmeteverytwoyears.COFIhasresponsibilityforthe
oversightoftheFAOfisheriesandaquacultureprogrammeaswellasglobalissuesconcerning
thesesectors.InthelatterroleitistheFAOCounciland,throughit,COFIthatassumes
responsibilityforfisheries-relatedmandatespassedtoFAObyotherinternationalbodiessuchas
theUNGA,includingthefinalizationofinternationalinstruments.In1995,forexample,theFAO
CouncilapprovedtheCodeofConductforResponsibleFisheries—developedbyCOFIundera
mandatefromthe1992CancunConferenceonResponsibleFishingintherunuptotheUNCED
rd
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50
Conference.In1999,the23rd FAOCOFISessionagreedthreeInternationalPlansofAction(‘IPOAs’)
addressing:ReducingIncidentalCatchofSeabirdsinLonglineFisheries;Conservationand
ManagementofSharks;andtheManagementofFishingCapacity.InJune2001theFAOCouncil
endorsedanIPOAdevelopedbyCOFIagainstIUUfishing.Itcontainsanextensive‘toolkit’of
actionsthatStatescantakeagainstvesselsinvolvedinIUUfishing.InDecember2006byRes
61/105theUNGA,inresponsetodemandsforabanondeep-seabottomtrawling,requestedthe
FAOtodevelopguidelinesfortheprotectionofvulnerablemarineecosystems.InMarch2007the
FAOCouncilinturnrequestedthedevelopmentofInternationalGuidelinesfortheManagementof
Deep-SeaFisheriesintheHighSeastoassistStates,RFMOs,andArrangementsinsustainably
managingdeep-seafisheries.Theseguidelines,agreedatCOFI,wereadoptedinAugust2008.In
November2009COFIagreedandsenttotheFAOCouncilthefinaltextofthelegallybinding
instrumentonportStatemeasurestoprevent,deter,andeliminateIUUfishing.
12TheConstitutionoftheFAOalsoenvisagestheestablishmentofbodiestoassistwiththe
promotionandmanagementoffisheries.Thesefallintotwomaingroups.First,bodiesestablished
underArt.VIConstitutionoftheFAOdirectlybytheFAOConferenceortheFAOCouncilwhich
reporttoeithertheFAOConferenceortheFAOCouncil.Thesearepurelyadvisorybodies.They
areempoweredtomakeonlynon-bindingrecommendations,or,tousethelanguageofArt.VI(1)
ConstitutionoftheFAOitself,to‘adviseontheformulationandimplementationofpolicyandto
coordinatetheimplementationofpolicy’.Inthemarinefisheriesarea,suchbodiesare:the
SouthwestIndianOceanFisheriesCommission(‘SWIOFC’),theWesternCentralAtlanticFishery
Commission(‘WECAFC’),andtheFisheryCommitteefortheEasternCentralAtlantic(‘CECAF’).
13Bycontrast,thesecondgroupofbodiesestablishedbytreatyunderArt.XIVConstitutionofthe
FAOmayhavefullmanagementpowers.Thesearenormallycreatedbyinternationaltreatiesthat
areregisteredwiththeUN.Suchbodiesarethecreaturesofthetreatywhichestablishesthem,
thoughallbodiesestablishedbythisprocesshaveaclauseinthetreatystatingthattheyarewithin
theFAOframework.Becausetheyaretreatyregimes(unlikeArt.VIbodies),thepartiescancommit
themselvestoagreeingtobindingconservationandmanagementmeasures,egtheIndianOcean
TunaCommission(‘IOTC’),theGeneralFisheriesCommissionfortheMediterranean(‘GFCM’),the
Asia-PacificFisheriesCommission(‘APFIC’),andtheRegionalCommissionforFisheries(‘RECOFI’),
amongtheGulfStates.SomeofthebodiesestablishedbytreatymadeunderArt.XIVConstitutionof
theFAOhaveverywidepowers,somelikeAPFICareadvisory.
E.OtherRegionalFisheriesBodies
14AnumberofotherRFBsareestablishedbyinternationaltreatyentirelyoutsidetheFAO
framework.TheseincludetheNorthEastAtlanticFisheriesCommission(‘NEAFC’),theNorthwest
AtlanticFisheriesOrganization(‘NAFO’),theSoutheastAtlanticFisheriesOrganization(‘SEAFO’),
theCommissionfortheConservationofAntarcticMarineLivingResources(‘CCAMLR’),andthe
maintunacommissionssuchastheInter-AmericanTropicalTunaCommission(‘IATTC’),the
InternationalCommissionforConservationofAtlanticTunas(‘ICCAT’),theCommissionforthe
ConservationofSouthernBlueFin(‘CCSBT’),andtheWesternandCentralPacificFisheries
Commission(‘WCPFC’).ICCATactuallyhasacooperationagreementwithFAO.
F.RFMODecision-Making
15Asautonomoustreatyregimes,manyofwhichwereinitiallysetuppurelytoregulate
exploitationamongtheirmembers,RFMOsdohaveendemicproblemsinreachingthehard
conservationdecisionsthatmaybenecessaryforthelong-termhealthoftargetfishstocks.In
short,theseareoftenseen,andsometimesseethemselves,lessasinternationalbodiescharged
withtheresponsibilityoftheprudentmanagementofagloballyimportantresource,butasaforum
fortheallocationofvaluableresourcesamongstmembers.Forexample,the2008effectiveness
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51
reviewofICCATconcludedthatitsmanagementofAtlanticBluefinTunawas‘widelyregardedasan
internationaldisgrace’(HurryHayashiandMaguire).
16Sometreatiesareclosedtonewmembers—othersareopen—butallsufferfromanumberof
systemicdefectswhicharisefromthenatureofinternationalregulationwithinatreatylaw
framework.Theseincludethefactthatdecisionsofthepartiesrequiretheapprovalofacritical
numberofthemembers—usuallytwothirds—andthatpartiesthatvoteagainstspecificmeasures
maylodgeobjections,whichmeansthatthedecisionsarenotbindinguponthem.Indeedunder
someconventionsvotinginfavourofameasuredoesnotprecludeamember,eventhoughmany
decisionsareactuallymadebyconsensus,fromsubsequentlylodginganobjection(seeArt.V(3)
AgreementfortheEstablishmentoftheGeneralFisheriesCommissionfortheMediterranean;Art.
VIIIInternationalConventionfortheConservationofAtlanticTunas;Art.IXAgreementforthe
EstablishmentoftheIndianOceanTunaCommission).Oftensuchobjectionspromptanotherround
ofobjectionssothatotherpartiesmaychoosenottobeboundafterallbyprovisionstowhich
somepartieshavesuccessfullyobjected(Art.VIII(3)(b)InternationalConventionforthe
ConservationofAtlanticTunas;Art.IX(5)AgreementfortheEstablishmentoftheIndianOcean
TunaCommission).Thismakesthetakingoftoughconservationdecisionsdifficult.Acaseinpoint
maybethedifficultyfacedbyICCATin2010inimposingappropriatecatchlimitations(maybeeven
amoratorium)onAtlanticbluefintunadespiteoverwhelmingevidenceproducedbyitsown
StandingCommitteeonResearchandStatistics(‘SCRS’)andalsobyanFAOexpertpanelthatthe
stockspawningbiomass(‘SSB’)couldnotsustainexistinglevelsofexploitation.
17TheICCATissuehighlightsthesecondkeydefectwhichisthatwhilethemajorityofRFMOs
haveprovisionsfortheestablishmentofscientificcommitteesorfortheprovisionofscientific
advice,thereisnorequirementthatthisadvicebetakenintoaccountinreachingmanagement
decisionssuchasthesettingoftotalallowablecatch,orancillarymeasurestolimitcatches
throughgearorseasonalrestriction,orevenintheallocationofcatchesamongthemembers.
Historicalcatchallocationsareoftenregardedasmoreimportantthansustainabilityoffuturecatch
levels(SustainableDevelopment).Finally,thereareamongsomeRFMOsseriousproblemswith
compliancewithmanagementandconservationdecisions(EnvironmentalComplianceControl).
Compliancewith,andenforcementof,thedecisionsthataremadearetheprimaryresponsibilityof
theMemberStatesthemselvestoenforcethroughflagStatejurisdiction.Someregimes,suchas
CCAMLR,envisageanduseobserversandusemodernmonitoringandcompliancetechnology—
butthispracticeisbynomeansuniversal.
G.TheMainInternationalRegionalFisheriesManagement
Organizations
1.GeographicalCoverage
18AsthelistoforganisationslistedinAnnex1shows,thereisaverycomprehensiverangeof
regionaladvisorybodies;howeverthesituationisverydifferentwithregionalfisheries
managementbodies(RFMOs).Althoughtheglobalnetworkoftunamanagementcommissionsis
quitecomprehensive,thereareanumberofmajorgapsintheareascoveredbythegeneral
fisheriescommissionsmanagingtheconservationofhighseasstocksofnon-tunaspecies.NEAFC
andNAFOcoverthenorth-eastandnorth-westAtlantic—butthereisnomultilateralbodyregulating
fisheriesintheArcticregionorintheAtlanticsouthoftheNEAFC/NAFObordersuntiltheAntarctic
regimeoftheCCAMLRarea.Untiltheendof2009therewerenogeneralfisheriescommissionsin
thePacificatall,tomanagenon-highlymigratoryspecies.InNovember2009,afteralongdrawn
outnegotiation,thetreatyestablishingtheSouthPacificRegionalFisheriesManagement
Organizationwasconcluded—ithasyettoenterintoforce(ConventionontheConservationand
ManagementofHighSeasFisheryResourcesintheSouthPacificOcean).Negotiationsarealso
ongoingforaNorthPacificRFMO.IntheIndianOcean,theRECOFIcoverstheGulfareaandthe
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52
SouthernIndianOceanFisheriesAgreement(concludedinJuly2006)onlyenteredintoforceinlate
2010.
19Inadditionthereareanumberofspecies-specificcommissions.IntheAtlantic,theNorth
AtlanticSalmonConservationOrganization(‘NASCO’),andinthePacifictheNorthPacific
AnadromousFishCommission(‘NPAFC’),andintheBeringSeatheinnovativemanagementsystem
establishedbytheConventionontheConservationandManagementofthePollockResourcesin
theCentralBeringSea([1994]34ILM67;‘CCBSP’).
20However,theseorganizationsdonotprovideacomprehensivecoverageofallexploitablehigh
seasfishstocks,exposingthosestocksnotregulatedtoanevengreaterriskofIUUfishing
activities.
2.RegionalFisheriesManagementBodies
21TheGeneralFisheriesCommissionfortheMediterranean(‘GFCM’)wasestablishedbyan
agreementnegotiatedundertheprovisionsofArt.XIVConstitutionoftheFAO,approvedbythe
FAOConferencein1949,andenteredintoforcein1952.
22TheNAFOreplacedtheInternationalCouncilforNorthwestAtlanticFisheriesin1978.The
NEAFCreplacedthepreviousorganizationofthesamename,byanagreementof1980which
cameintoforcein1982(ConventiononFutureMultilateralCo-operationintheNorthEastAtlantic
Fisheries).Atthe24th MeetingofthePartiesin2004theyapprovedaLondonDeclarationagreeing
toincorporatethepost-UNCEDglobalagreementsandinstrumentsintotheirownregime(NorthEast
AtlanticFisheriesCommission‘DeclarationontheInterpretationandImplementationofthe
ConventionontheFutureMultilateralCooperationinNorth-EastAtlanticFisheries’).In2006NEAFC
wasthefirstRFMOtoundertakeaperformancereviewasrecommendedbyFAOCOFIforallRFMOs.
23TheCCAMLRestablishedbythe1980ConventionontheConservationofAntarcticMarine
LivingResourcescameintoforcein1982,aspartoftheAntarcticTreatySystem,inpursuanceof
theprovisionsofArt.IXAntarcticTreaty.Althoughnotstrictlyafisheriesagreement,the
ConventionontheConservationofAntarcticMarineLivingResourcesdoesenvisage‘rationaluse’
anditisthefirstinternationalagreementtoreflectanecosystemapproach—foritregulates‘the
Antarcticmarinelivingresourcesoftheareasouthof60°SouthlatitudeandtotheAntarcticmarine
livingresourcesoftheareabetweenthatlatitudeandtheAntarcticConvergencewhichformpart
oftheAntarcticmarineecosystem’(Art.IConventionontheConservationofAntarcticMarine
LivingResources).
24TheNASCOwascreatedbytheConventionfortheConservationofSalmonintheNorthAtlantic
OceanthatenteredintoforceinOctober1983.Itsobjectiveistoconserve,restore,enhance,and
rationallymanagewildAtlanticsalmon.
25TheNPAFCwasestablishedbythe1992ConventionfortheConservationofAnadromous
StocksintheNorthPacificOcean,whichenteredintoforceinFebruary1992.Themainobjectiveof
theconventionistopromotetheconservationofanadromousstocksintheconventionarea.
26TheRECOFIestablishedbytheFAOCouncilin1999replacestheGulfCommitteeoftheIndian
OceanFisheryCommissionwhichwasitselfabolishedbyResolution116/1oftheFAOCouncilin
June1999.Itsobjectivesaretopromotethedevelopment,conservation,rationalmanagement,and
bestutilizationoflivingmarineresources,aswellasthesustainabledevelopmentofaquaculturein
theareacoveredbytheCommission.
27TheSouthEastAtlanticFisheriesCommissionwasestablishedbytheconventionsignedin
Windhoek,NamibiainApril2001—itisthefirstgeneralfisheriesconventiontohavebeen
negotiatedafterthe1995UNFSAandtoreflectitsrequirements.
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53
3.InternationalTunaCommissions
28TheIATTC,establishedbythe1949WashingtonConvention(ConventionbetweentheUnited
StatesofAmericaandtheRepublicofCostaRicafortheEstablishmentofanInter-American
TropicalTunaCommission)isresponsiblefortheconservationandmanagementoffisheriesfor
tunasandotherspeciestakenbytuna-fishingvesselsintheeasternPacificOcean.
29TheICCAT,establishedbythe1966RiodeJaneiroTreaty(InternationalConventionforthe
ConservationofAtlanticTunas),appliestoallwatersoftheAtlanticOceanandadjacentseas,
includingtheMediterraneanSea.
30TheIOTCismandatedtomanagetunaandtuna-likespeciesintheIndianOceanandadjacent
seas,originallyestablishedbytheAgreementfortheEstablishmentoftheIndianOceanTuna
CommissionthatwasapprovedbytheFAOCouncilin1993;negotiationsarecurrentlyunderwayto
changeitslegalbasis.
31TheConventionfortheConservationofSouthernBluefinTuna,signedbyAustralia,Japan,and
NewZealandinMay1993,replacedthepreviousvoluntarymanagementarrangement.Itisnow
opentootherSouthernBluefinTunafishingStates.InJuly1999AustraliaandNewZealandbrought
actionsbeforetheInternationalTribunalfortheLawoftheSea(ITLOS)seekinganorderrestraining
Japanfromimplementingitsexperimentalfishingprogrammeonthegroundsthatitviolatedthe
ConventionfortheConservationofSouthernBluefinTuna.Aprovisionalmeasuresorderwas
grantedandthesubstantiveissuewasreferredtoanArbitralTribunalunderAnnexVIIoftheUN
ConventionontheLawoftheSea,whichinAugust1999foundthatitdidnothavejurisdiction
(SouthernBluefinTunaCases).
32TheWesternandCentralPacificFisheriesCommissionwasestablishedbytheConventionon
theConservationandManagementofHighlyMigratoryFishStocksintheWesternandCentral
PacificOceanwhichwasopenedforsignatureatHonoluluinSeptember2000.Theconventionwas
thefirstregionaltunafisheriesagreementtobeadoptedaftertheconclusionofthe1995UNFSA,
anditreflectsitsrequirements.
H.Evaluation
33ItisclearfromFAO’sbiannualpublicationStateoftheWorldFisheriesandAquaculturethat
marinecapturefisherieshavealreadyreachedtheirmaximumexploitationlevels.Indeeditseems
thatthesecatchlevelsareonlysustainedbyincreasedinvestmentandeffort—inanonsustainablemanner.Onlyaquarterofworldmarinefisheriesarenotover-exploited,depleted,or
recovering.AlthoughIUUfishingisamajorproblem,itisRFMOsthathavebeenlargelyblamedfor
thisfailuretoexploitmarinefisheryresourcesinasustainablemanner.Ofcourse,notallRFMOs
areequallyatfaultonalltheseissues,butthemaincriticismsfocusonthefollowingissues.The
failuretofollowscientificadviceinsettingcatchlevelsforthestockstheymanage;theinadequacy
ofthemajorityofmonitoring,compliance,andenforcementmechanismstoensurethattherules
theysetarecompliedwithbytheirownMemberStates;afailuretoreflectmodernocean
managementprinciples(asreflectedinthe1993AgreementtoPromoteCompliancewith
InternationalConservationandManagementMeasuresbyFishingVesselsontheHighSeasandthe
1995UNFSA)suchasprecautionortheeco-systemapproachintheirlegalframeworks.Astrong
generalcriticismisthattheregimesarebiasedtowardsexploitationnotconservationand
protection,andthathencetheRFMOsarenotwellpositionedtoactasstewardsforthehighseas
resources,orfortheprotectionofbiodiversityinareasbeyondnationaljurisdiction.IntheUNGA,
debateshavefocusedonthelackofregulationoftheuseofdestructivebottom-trawling
technologyoverimportantdeepseaecosystemsincludingseamounts—whichresultedinthe
adoptionofFAO’sInternationalGuidelinesfortheManagementofDeep-SeaFisheriesintheHigh
Seasdiscussedabove.Inhis2009ReporttheUNSecretaryGeneralexpressedtheviewthat
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54
progressinimplementingtheseguidelineshadbeenslow.
34Morefundamentally,attheUNFSAReviewConferenceinMay2006,anumberofkeypriorities
wereflagged,includingimprovingthefunctioningofregionalorganizationsandaligningtheir
conventionsandadoptedmeasureswiththeUNFSAstandards;modernizingRFMOs,inparticular
updatingtheirconstitutiveinstrumentstohighlighttheimportanceofimplementingprecautionary
andecosystem-basedapproachestofisheriesmanagement;aswellasstrengtheningmonitoring,
control,andsurveillanceregimesandperformancereview.Thereviewconferencealsoproposed
thedevelopmentofstandardsandbestpracticeguidelinesforRFMOs.
35NEAFCwasthefirstRFMOtoundertakesuchareviewanditsreviewprocesshasbeenheldup
asamodelforothers.TheNEAFCSecretariatreportedonthisreviewtothe27th COFImeetingin
2007andothershavefollowedsincethen,includingNAFO,CCAMLR,andICCAT(its2008reviewis
mentionedabove).ConcernwasexpressedatCOFIonissuessuchasovercapacity,improvement
offleetstatistics,andtheissuesofcountriesthatunderminetheeffectivenessofRFMOsand
vesselsfishingunderwhatittermed‘flagsofnon-compliance’.Concernwasalsoexpressedatthe
failureofanumberofflagStatestoexercisetheirlegaldutiesproperlytooverseetheproper
behaviouroftheirvessels.ThedevelopmentofcriteriaforproperflagStateperformanceisalso
beingpursuedatFAO.
36OtherreformproposalsincludedthecallingofthefirsteverconsultationbetweentheRFMOs
themselves—onlyin2000wasthefirstmeetingheldbetweentheTunaRFMOs—the‘Kobeprocess’
isnamedafterthefirstmeetingplaceinJapan.Progresshasalsobeenmadeinamendingthe
constitutionstoreflectmodernprinciples.In2005NEAFCapprovedaDeclarationonthe
InterpretationandImplementationoftheConventionontheFutureMultilateralCooperationinNorthEastAtlanticFisheriesagreeingtoincorporatethepostUNCEDglobalagreementsandinstruments
intotheirownregime.Thiswasaneffectivewaytoavoidthecomplextreatyamendmentprocess.
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JSwan‘RegionalFisheriesBodiesandGovernance:Issues,Actions,andFutureDirections’
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InstrumentsandRegimeLinkages—butHowEffectiveaManagement?’inOSStokke(ed),
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GuidetoImplementingthe1993FAOComplianceAgreementandthe1995FishStocks
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AJackson‘TheConventionontheConservationandManagementofFisheryResourcesin
theSouthEastAtlanticOcean,2001’(2002)17IJMCL33–77.
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cooperaciónparalaconservaciónylagestióndelosrecursosvivosdelaltamar(Juntade
Andalucia,ConsejeríadeAgriculturayPescaSevilla2002).
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gestiondesressourcesmarinesvivantes(BruylantBruxelles2003).
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IJMCL(SpecialIssue)209–316.
GMunroAVanHoutte,andRWillman‘TheConservationandManagementofSharedFish
Stocks:LegalandEconomicAspects’FAOFisheriesTechnicalPaper465(FAORome2004).
KMGjerde(ed)‘HighSeasFisheriesGovernance:MovingfromWordstoAction’(2005)20
IJMCL(SpecialIssue)323–630.
EJMolenaar‘AddressingRegulatoryGapsinHighSeasFisheries’(2005)20IJMCL533–70.
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WEdeson‘QuotaTradingUndertheConventionfortheConservationofSouthernBluefin
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GDHurryMHayashi,andJJMaguire‘ReportoftheIndependentReview:International
CommissionfortheConservationofAtlanticTunasICCAT’(September2008)(11November
2010).
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RWolfrum‘TheArcticintheContextofInternationalLaw’(2009)69HJIL533–543.
MAPalmaMTsamenyi,andWREdesonPromotingSustainableFisheries:TheInternational
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EPIL Contributors; date: 09 April 2015
58
6
Problems of High Seas Governance
*
David Freestone
CURRENT ISSUES AND CHALLENGES
The monumental achievement of the United Nations Convention on the Law
of the Sea (LOS Convention) is well known: its 320 Articles and 9 Annexes
took 9 years to conclude, making the Third UN Conference on the Law of
the Sea (1973–1982) the longest negotiation in the history of the UN.1
Singapore‘s Tommy Koh, chairman of the closing session, famously called it
the new ‗Constitution for the Oceans‘.2 Yet in 1994, after the Convention
had languished for nearly 12 years, it required a further treaty – an
Implementation Agreement that modified various key provisions relating to
seabed mining – in order for it to command enough support from states to
bring it into force.3 The following year, another Implementation Agreement
———
*
I am most grateful to Kristina Gjerde, High Sea Policy Adviser to the IUCN; to Professor
Rosemary Rayfuse of the University of New South Wales Law Faculty; and Professor Martin
Tsamenyi of the University of Wollongong for their careful review of this paper, which has
improved greatly as a result. I remain responsible for any errors of omission or commission that
remain.
1
See generally, D. Freestone, ‗A Decade of the Law of the Sea Convention: Is It a Success?‘,
George Washington University International Law Review (Special Issue on the Symposium in
Remembrance of Professor Louis Sohn), Vol. 39, 2007, pp. 101–143.
2
T.T.B. Koh, ‗A Constitution for the Oceans‘, The Law of the Sea – Official Text of the United
Nations Convention on the Law of the Sea, UN Pub. Sales No. E.83.V.5 (New York: United
Nations, 1983); available at <www.un.org/depts/los/convention_agreements/texts/koh_english.
pdf>.
3
Agreement relating to the Implementation of Part XI of the United Nations Convention on the
Law of the Sea of 10 December 1982, UN doc. A/RES.48/263; text reprinted in ILM, Vol. 33,
1994, pp. 1,311ff; available at <www.un.org/Depts/los>. Agreement was opened for signature
on 28 July 1994; entered into force on 28 July 1996. As of 31 January 2011, there were 140 parties. On the issue of implementation and/or modification see D. Freestone and A.G. Oude
59
2
David Freestone
was necessary in order to address one of its ‗unfinished agendas‘ – the
regulation of straddling fish stocks and highly migratory fish stocks.4 Now,
15 years after the Convention came into force, many – including the member
states of the European Union – are calling for yet a third implementation
agreement to address another ‗unfinished agenda‘ and clarify apparent
lacunae in the regime for areas beyond national jurisdiction – the high seas.
The high seas cover more than 50 per cent of the planet‘s surface. The
past thirty years have seen unparalleled expansion of human activities and
impacts on the oceans, on the high seas in particular. Scientists have discovered valuable new resources in high-seas areas: ocean hydrothermal vents
with temperatures of 300 to 600°C containing gold and other valuable
minerals, with accompanying hyperthermophile and extremophile life-forms
– crabs, bivalves, tube worms and shrimp-like creatures as well as microbes
– that process hydrogen sulphide instead of oxygen and that function in very
deep ecosystems where the ambient water temperature is over 100°C. These
are already proving to have important bio-technology and pharmaceutical
value. Deep cold-water corals – much slower-growing than their shallow
tropical water counterparts but equally colourful and very diverse – are
proving far more common than initially thought, and are highly vulnerable to
ocean-floor fishing equipment. Also, cold seeps and huge frozen methane
deposits have been discovered, with potential for exploitation, albeit with
risks of major damage to the global atmosphere.
Sustained demand for fish has accelerated fishing pressures and pushed
fishing efforts into more extreme environments, such as the Southern Ocean,
as well as into deeper waters. Heavy exploitation of valuable deep-sea species such as Orange roughy and Patagonian toothfish (often sold as ‗Chilean
sea-bass‘) has meant that some stocks are on the verge of extinction before
scientists have discovered much about them. Slow-growing Orange roughy,
for example, are thought to live to over 150 years and not reach sexual
maturity until their thirties – spawning infrequently. Bottom-trawling for
stocks that spawn on seamount ecosystems can eliminate whole year groups
as well as destroy the very sea-bed ecosystems that attract them.
———
Elferink, ‗Flexibility and Innovation in the Law of the Sea: Will the LOS Convention Amendment Procedures Ever be Used?‘, in A.G. Oude Elferink (ed.), Stability and Change in the Law
of the Sea: The Role of the LOS Convention (Leiden: Martinus Nijhoff, 2005), pp.169–221,
especially at pp. 184–190.
4
Agreement for the Implementation of the Provisions of the United Nations Convention on the
Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN doc. A/CONF.164/37; text in UNTS,
Vol. 2167, pp. 3ff; available at <www.un.org/Depts/los>. The Agreement was opened for signature on 4 December 1995 and entered in force on 11 December 2001. As of 31 January 2011,
there were 78 parties.
60
Problems of High Seas Governance
3
At the same time there is evidence of the impacts of the rising intensity of
existing human activities; marine pollution due to increases in maritime
transportation, particularly from land-based sources. High-seas fish stocks
are a valuable source of protein for human consumption – but there is
evidence of serious depletion in the larger pelagic species, such as tunas and
billfishes, resulting in fishing for smaller species, lower down the trophic
levels.5 This gives rise to serious questions about the impact of such fishing
on the whole marine ecosystem and its long-term sustainability. Economists,
as well as biologists, have begun to voice concerns for sustainability, in light
of the huge amounts of money spent each year to support fisheries.6
The international science community has also, albeit somewhat late in the
day, become more vocal about the role of the oceans in relation to climate
change. While it is well known that the oceans are the most important global
sink for CO2, recent research from inter alia the Census of Marine Life
indicates that the processes that absorb carbon depend heavily on ocean
species – including the tiniest life-forms. Before we have even discovered
the existence of many of these microorganisms, human activities, and
particularly the resultant pollution, may have reduced their biomass by
perhaps up to 30 per cent.7
Warming of the oceans and rises in sea level prompted by the resulting
increases in volume and fed by melting glaciers and ice-caps have already
attracted public attention. In addition, the increased atmospheric carbon load
– now estimated at about 380 parts per million (ppm) in the atmosphere – is
already beginning to affect ocean acidity levels. Recent research suggests
that, at 450 ppm, corals and shellfish, and perhaps even plankton, may have
problems in creating and maintaining their carbonate structures.8 These
issues, which affect waters both inside and outside national jurisdiction, pose
governance issues far beyond the remit of the LOS Convention. The relevant
international framework provided by the UN Framework Convention on
Climate Change and its science advisory body – the Intergovernmental Panel
on Climate Change – have barely started to focus on these issues, even
though some entrepreneurs have already seen opportunities for generating
———
5
See D. Pauly et al., ‗Fishing Down Marine Food Webs‘, Science, Vol. 279, 1998, pp. 860,
862–863.
6
See study by the World Bank and FAO, The Sunken Billions: The Economic Justification for
Fisheries Reform (Washington, DC: The World Bank, 2009), that estimates that USD 1.05 is
spent for every USD 1 of fish produced.
7
R. Danovaro et al., ‗Exponential Decline of Deep-Sea Ecosystem Functioning Linked to Benthic Biodiversity Loss‘, Current Biology, Vol. 18, 2008, pp. 1–8.
8
O Hoegh-Guldberg et al., ‗Coral Reefs under Rapid Climate Change and Ocean Acidification‘,
Science, Vol. 318, 2007, pp. 1737–1742.
61
4
David Freestone
lucrative ‗carbon offsets‘ by using as yet unproven ocean fertilisation techniques in an attempt to generate algal blooms that might fix more carbon in
the ocean.9
THE EXISTING LEGAL AND INSTITUTIONAL REGIME
Under the LOS Convention, coastal states have jurisdiction over living and
non-living resources in their exclusive economic zones (EEZs) out to 200
nautical miles from their baselines and over continental shelf resources out
to the legal limit of their continental shelf.10 Beyond that point, the LOS
Convention envisages the International Seabed Authority having
jurisdiction, but only over the non-living resources of the seabed – what it
terms ‗solid, liquid or gaseous mineral resources‘.11 Hence, there is a lacuna
in the Convention regime relating to management and conservation of deepsea or seabed living resources and for exploration and exploitation activities
unrelated to seabed mining.12
Various sectoral activities in the high seas are governed by existing treaty
regimes – such as the 1972 London Convention and its 1996 Protocol on
ocean dumping, convened under the auspices of the International Maritime
Organisation – and associated treaties on shipping safety, security and pollution, and by a network (albeit by no means a comprehensive network) of
species-related and regional fisheries treaties and arrangements as well as by
some of the regional seas conventions. Scholars have worked systematically
through the various regional and sectoral regimes to highlight further ‗regulatory and governance‘ gaps.13
———
9
See D. Freestone and R. Rayfuse, ‗Ocean Iron Fertilization and International Law‘, Marine
Ecology Progress Series, Vol. 364, 2008, pp. 227–233 (in Theme section: ‗Implications of
Large-scale Iron Fertilization of the Oceans‘, available at <www.int-res.com/articles/theme/
m364ThemeSection.pdf>); R. Rayfuse, M. Lawrence and K. Gjerde, ‗Ocean Fertilisation and
Climate Change: the Need to Regulate Emerging High Seas Uses‘, IJMCL, Vol. 23, 2008, pp.
297–326.
10
On the outer limit of the continental shelf, see Part V, ‗Continental Shelf beyond 200 Nautical
Miles‘, in D. Vidas (ed.), Law, Technology and Science for Oceans in Globalisation (Leiden:
Martinus Nijhoff, 2010), pp. 423–589.
11
Art. 133(a) of the LOS Convention.
12
Although the LOS Convention does impose unequivocal obligations to ‗protect and preserve
the marine environment‘ and to ‗protect and preserve rare or fragile species and ecosystems in
all parts of the marine environment, as well as the habitat of depleted, threatened or endangered
species and other forms of marine life‘; see Arts. 192 and 194(5) of the LOS Convention.
13
See K. Gjerde, H. Dotinga, S. Hart, E.J. Molenaar, R. Rayfuse and R. Warner, Regulatory and
Governance Gaps in the International Regime for the Conservation and Sustainable Use of
Marine Biodiversity in Areas beyond National Jurisdiction (Gland: IUCN, 2008), available at
<http://cmsdata.iucn.org/downloads/iucn_marine_paper_1_2.pdf >. See also Gjerde, chapter 13
62
Problems of High Seas Governance
5
Fisheries Commissions
There are ten regional fisheries management organisations (RFMOs), five
primarily responsible for the conservation and management of high-seas
straddling stocks14 and five responsible for tuna species.15 However, these
organisations do not provide comprehensive coverage of all exploitable
high-seas fish stocks, exposing those stocks not so regulated to an even
greater risk of what the international community now calls IUU fishing
activities (illegal, unreported and unregulated fishing). For example, in
November 2009, after lengthy negotiations, the treaty establishing the South
Pacific Regional Fisheries Management Organisation (SPRFMO) was concluded; it has yet to enter into force.16 Negotiations are also ongoing for a
North Pacific RFMO, leaving fishing in this huge area still unregulated. The
agreement on deep sea fisheries in the Southern Indian Ocean (SIOFA)
negotiated in 2006, is another example.17 It seems that there are as yet no
plans for a South Atlantic Commission covering those areas not within the
———
in this book. For an excellent and up-to-date discussion of the legal regime see R. Warner,
Protecting the Oceans beyond National Jurisdiction: Strengthening the International Law
Framework (Leiden: Martinus Nijhoff, 2009).
14
The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR),
General Fisheries Commission for the Mediterranean (GFCM); North Atlantic Fisheries Organisation (NAFO); North-East Atlantic Fisheries Commission (NEAFC); the South-East Atlantic
Fisheries Organisation (SEAFO). Not yet in force is the 2009 Convention establishing the South
Pacific Regional Fisheries Management Organisation (SPRFMO); see further footnote 16 and
the accompanying text. Also relevant are the Central Bering Sea Fisheries Commission, the
North Pacific Anadromous Fisheries Commission (NPAFC), and the North Atlantic Salmon
Conservation Organisation (NASCO), although salmon is an anadromous species, migrating
from salt water to spawn in fresh water. See D. Freestone, ‗Fisheries Commissions and Organisations‘, Max Planck Encyclopaedia of Public International Law (Oxford University Press,
forthcoming 2011); also M.W. Lodge, ‗Developing a Model for Improved Governance by
Regional Fisheries Management Organisations‘, in Vidas (ed.), Law, Technology and Science
for Oceans in Globalisation, pp. 157–174.
15
Inter-American Tropical Tuna Commission (IATTC), International Commission for the Conservation of Atlantic Tunas (ICCAT), Indian Ocean Tuna Commission (IOTC), Commission for
the Conservation of Southern Bluefin Tuna (CCSBT) and the Commission for the Conservation
and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
(WCPFC).
16
For text see <www.southpacificrfmo.org/> and Final Act at <www.southpacificrfmo.org/
assets/Convention-and-Final-Act/2272942-v1-SPRFMOSignedFinalAct.pdf> (both accessed 21
February 2011).
17
The Agreement provides that it will come into force on ‗receipt by the Depositary of the
fourth instrument of ratification, acceptance or approval, at least two of which have been deposited by coastal States bordering the Area‘. It has recently been ratified by two such coastal states:
Mauritius (on 24 August 2010) and Seychelles, and approved by the EU. Although the Cook
Islands ‗acceded‘ to the agreement on 15 June 2008, it seems that accession does not meet the
wording cited above: hence the Agreement has not yet entered into force.
63
6
David Freestone
remit of the Convention for the Conservation of Antarctic Marine Living
Resources (CAMLR Convention),18 nor are there likely to be any in the near
future unless the political disputes between the UK and Argentina regarding
the status of the Falklands/Malvinas are resolved.
The most recently established of these RFMOs – notably the Commissions set up by the 2000 Convention for the Conservation and Management
of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
(WCPFC),19 the 2001 South-East Atlantic Fisheries Organisation (SEAFO)20
and the 2009 South Pacific Regional Fisheries Management Organisation
were concluded after the 1992 UN Conference on Environment and Development (UNCED) and the finalisation of the 1995 UN Fish Stocks
Agreement. As fisheries management bodies they are expressly mandated by
the LOS Convention itself to incorporate environmental concerns into their
marine conservation and management regimes, but in addition they are to
address the new concerns regarding ecosystem maintenance and conservation of biological diversity introduced by the UNCED, notably through the
UN Fish Stocks Agreement and the large number of non-binding instruments
which have followed it. In a ground-breaking decision, the parties to NEAFC
incorporated these concerns retrospectively. At the 24th meeting of the
NEAFC parties in 2005 they approved a Declaration on the Interpretation
and Implementation of the Convention on the Future Multilateral Cooperation in North-East Atlantic Fisheries, agreeing to incorporate the postUNCED global agreements and instruments into their own regime.21
———
18
As to the CCAMLR and IUU fishing, see D.G.M. Miller, N. Slicer and N. Sabourenkov, ‗IUU
Fishing in Antarctic Waters: CCAMLR Actions and Regulations‘, in Vidas (ed.), Law, Technology and Science for Oceans in Globalisation, pp. 175–196.
19
Convention on the Conservation and Management of the Highly Migratory Fish Stocks of the
Western and Central Pacific Ocean (signed in Honolulu, 5 September 2000, entered into force
19 June 2004), text reprinted in ILM, Vol. 40, 2001, pp. 277ff. See also T. Aqorau, ‗Tuna Fisheries Management in the Western and Central Pacific Ocean: A Critical Analysis of the Convention for the Conservation and Management of the Highly Migratory Fish Stocks of the Western
and Central Pacific Ocean‘, IJMCL, Vol. 16, 2001, pp. 379–431.
20
Convention on the Conservation and Management of the Fisheries Resources in the SouthEast Atlantic Ocean (done in Windhoek, 20 April 2001, entered into force 13 April 2003), text
reprinted in ILM, Vol. 41, 2002, pp. 257ff. See also A. Jackson, ‗The Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean, 2001: An Introduction‘, IJMCL, Vol. 17, 2002, pp. 33–78.
21
In 2006 NEAFC was also the first RFMO to undertake a performance review as recommended by FAO COFI for all RFMOs, see further below. Note also that in 2007 NAFO approved an
amendment to its Convention incorporating this same concerns; see <www.nafo.int/about/
frames/about.html>. The 2003 Antigua Convention supplementing the ICCAT Treaty came into
force on 27 August 2010, see <www.iattc.org/IATTCdocumentationENG.htm> (accessed 8
March 2011).
64
Problems of High Seas Governance
7
Many of the tuna RFMOs are still operating under the old rules, however.
Attempts to update their charters are not progressing rapidly,22 although such
changes may result from the series of performance reviews undertaken by
the majority of these bodies and the consultation process that they have
commenced between themselves, called the ‗Kobe Process‘ after the first
meeting in Japan in 2007.23
Regional Seas Conventions
More than 140 countries participate in thirteen Regional Seas programmes
established under the auspices of UNEP regional seas programme covering
the Black Sea, Wider Caribbean, East Asian Seas, Eastern Africa, South
Asian Seas, ROPME Sea Area, Mediterranean, North-East Pacific, NorthWest Pacific, Red Sea and Gulf of Aden, South-East Pacific, Pacific, and
Western Africa. Six of these programmes are directly administered by
UNEP.24 All Regional Seas programmes have developed Action Plans; most
of them have also developed specific legal frameworks with conventions and
protocols. No conventions have yet been developed for the East Asian Seas,
South Asian Seas, North-West Pacific, North-East Pacific, or for the Arctic.
In addition there are several ‗partner programmes‘ of regional seas treaties
which are not under the UNEP umbrella. These regional treaty regimes include those for the Antarctic,25 the Baltic,26 the Caspian,27 and the North-East
Atlantic.28 It is important to note that these conventions are primarily group———
22
See for example regarding IOTC, W.R. Edeson, ‗An International Legal Extravaganza in the
Indian Ocean: Placing the Indian Ocean Tuna Commission outside the Framework of FAO‘,
IJMCL, Vol. 22, 2007, pp. 485–516.
23
See further discussion below and for the reports of the performance review and consultative
meetings see <http://74.125.153.132/search?q=cache:JN0W--cveHwJ:www.tuna-org.org/+tuna+
RFMOs&cd=1&hl=en&ct=clnk&gl=au>.
24
See <www.unep.org/regionalseas/about/default.asp>.
25
Convention on the Conservation of Antarctic Marine Living Resources (done in Canberra, 20
May 1980); text in UNTS, Vol. 1329, pp. 48ff. CAMLR Convention entered into force on 7
April 1982.
26
Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki
Convention), done in Helsinki, 9 April 1992, and entered into force on 17 January 2000. For the
text of the Helsinki Convention, with current Annexes, see HELCOM website at <www.helcom.
fi/stc/files/Convention/Conv1108.pdf>.
27
Framework Convention for the Protection of the Marine Environment of the Caspian Sea
(done in Teheran, 4 November 2003, entered into force on 12 August 2006); text available at
<www.caspianenvironment.org/newsite/Convention-FrameworkConventionText.htm>.
28
The Convention for the Protection of the Marine Environment of the North-East Atlantic –
Oslo and Paris conventions adopted 1974, revised and combined into OSPAR Convention (done
in Paris, 22 September 1992, entered into force on 25 March 1998); text available at <www.
65
8
David Freestone
ings of coastal states, and their jurisdiction is generally restricted to their
coastal zones. The exceptions are the following: the OSPAR Convention
area, which has high-seas areas within its remit; the Mediterranean, where
most coastal states have for various reasons not yet claimed EEZs; the South
Pacific, which includes within its mandate the ‗donut‘ holes between the
EEZs of its members; and the Antarctic Treaty System, consisting of both
the Antarctic Treaty and its Protocol on Environmental Protection as well as
the CAMLR Convention, which is a genuinely ecosystem-based regime that
regulates the Antarctic marine living resources of the area south of 60° South
latitude and the Antarctic marine living resources of the area between that
latitude and the Antarctic Convergence which form part of the Antarctic
marine ecosystem.29
CURRENT REFORM INITIATIVES
UN General Assembly
International concern has been growing at the lack of an adequate comprehensive framework for governance of the high seas. As we have seen, neither the regional seas organisations nor the regional fisheries management
organisations cover all ocean regions or activities, or even all fisheries
activities. Recent activities such as bioprospecting that may affect the seabed
and its resources remain unregulated, and emerging activities such as ocean
fertilisation and other carbon sequestration schemes are only slowly finding
a home in the international regulatory regime for ocean dumping.
While the international community is beginning to respond, progress has
been slow. Of course, overfishing is not the only threat to marine biodiversity, but overfishing of high seas fish stocks, particularly from IUU fishing
activities, has been the subject of a range of ongoing international activities.
The unregulated exploitation of deep-sea fish stocks such as Orange roughy
and Patagonian toothfish, including by bottom-trawling over unique seamount ecosystems, has prompted wide concern. In 2004, UN General
Assembly (UNGA) Resolution 59/2530 called on states acting individually or
through RFMOs to take action urgently, and consider on a case-by-case
basis and on a scientific basis, including the application of the precautionary
———
ospar.org>.
29
Art. I of the CAMLR Convention. On the definition of the CAMLR Convention area, see Miller, Slicer and Sabourenkov, ‗IUU Fishing in Antarctic Waters: CCAMLR Actions and Regulations‘, at pp. 176–177, including a map illustration.
30
UNGA Resolution 59/25 of 17 November 2004 (UN doc. A/RES/59/25), GAOR 59th Session, Supp. 49, Vol. 1, para. 30.
66
Problems of High Seas Governance
9
approach, the interim prohibition of destructive fishing practices, including
bottom-trawling that has adverse impacts on vulnerable marine ecosystems,
including seamounts, hydrothermal vents and cold-water corals located
beyond national jurisdiction, until such time as appropriate conservation and
management measures have been adopted in accordance with international
law.31
In 2006, the UNGA went further; its Resolution 61/10532 (paragraph 80)
called upon states to take action immediately, individually and through
regional fisheries management organisations and arrangements, and consistent with the precautionary approach and ecosystem approaches, to manage
fish stocks sustainably and protect vulnerable marine ecosystems, including
seamounts, hydrothermal vents and cold-water corals, from destructive
fishing practices, recognising the immense importance and value of deep-sea
ecosystems and the biodiversity they contain. Later paragraphs in the resolution described the expected action and set deadlines (of 31 December 2007
for areas where there were no RFMOs, and 31 December 2008 for areas with
RFMOs).
In summary, paragraphs 80–91 of Resolution 61/105 called for states and
RFMOs to assess the impacts of individual bottom-fisheries activities in
order to determine if such fishing activities would cause significant adverse
impacts on vulnerable marine ecosystems, and to either manage the fishery
so as to prevent such impacts or not authorise the fishing to proceed. The UN
Secretary-General‘s report on progress with respect to implementation of
Resolution 61/105, paragraphs 80–90, was released in August 2009, for review by the UNGA in September–November to determine whether and what
additional measures might be necessary.33 The report concluded that, despite
progress, ‗implementation of the Resolution has been uneven and further
efforts are needed in this regard, including through the adoption and implementation of conservation and management measures to address the impacts
of bottom fishing activities on vulnerable marine ecosystems‘. Further to the
2009 UNGA Resolution 64/72, which reaffirmed and clarified the
obligations in Resolution 61/105 for prior environmental impact assessments
and for progress with respect to both the prevention of biodiversity and the
———
31
Ibid., para. 66.
UNGA Resolution 61/105 of 8 December 2006 (UN doc. A/RES/61/105), GAOR 61st Session, Supp. 49, Vol. 1.
33
Reports on implementation of these obligations have been prepared, inter alia, by IUCN and
the Deep Sea Conservation Coalition.: IUCN study regarding implementation of UNGA Resolution 61/105, paragraphs 83-90 with respect to deep sea bottom fishing on the high seas. Also, see
M. Gianni, Review of the Implementation of the UNGA Agreement to Protect Deep-sea Ecosystems on the High Seas, Deep Sea Coalition, 2009, available at <www.savethehighseas.org>.
32
67
10
David Freestone
sustainability of deep sea fisheries, the UNGA is due to review progress in
September 2011.
The UNGA also requested the FAO to develop guidelines for managing
deep-sea fisheries on the high seas and the protection of vulnerable marine
ecosystems.34 Pursuant to this mandate, in March 2007, the FAO Committee
on Fisheries (COFI) requested the development of International Guidelines
for the Management of Deep-Sea Fisheries in the High Seas to assist states
and regional fisheries management organisations and arrangements in sustainably managing deep-sea fisheries. These guidelines were adopted in
August 2008.35
To address the full realm of issues relating to biodiversity in areas beyond
national jurisdiction, in 2004 on the recommendation of the UN Informal
Consultative Process on the Oceans and the Law of the Sea (UNICPOLOS)
the UN General Assembly agreed to establish an Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and
sustainable use of marine biological diversity beyond areas of national
jurisdiction. This Working Group held its first meeting in 2006; a second ran
from 28 April to 2 May 2008, a third meeting was held in January 2010, and
a fourth is scheduled for May 2011. Several important proposals have been
discussed at these meetings including, as mentioned above, a European Union proposal for a new implementing agreement to develop a more specific
framework to address, inter alia, conservation and sustainable use of marine
biodiversity beyond national jurisdiction. It is envisaged that such an implementing agreement or agreements could supplement the 1995 UN Fish
Stocks Agreement, which elaborated and modernised the 1982 LOS Convention with respect to highly migratory and straddling fish stocks.
Other states have indicated that improved implementation should be the
first priority, but have not provided their views on what might be done to
enhance implementation with respect to biodiversity conservation in general.
Discussions on high seas fisheries have proceeded largely in parallel.
In the context of the UNGA discussions, various expert working groups
have also suggested that it would assist in clarifying the debates over the
emerging high-seas governance regime if one could set out more clearly and
explicitly the basic principles that the international community has already
established and agreed to, in existing legal and policy instruments, in relation
to the use and exploitation of the high seas. These principles could at some
———
34
Resolution 61/105, para. 53.
‗International Guidelines for the Management of Deep-Sea Fisheries in the High Seas‘ in
FAO, Report of the Technical Consultation on International Guidelines for the Management of
Deep-Sea Fisheries in the High Seas (Rome: FAO, 2009), p. 39.
35
68
Problems of High Seas Governance
11
point be more formally enumerated – whether as a free-standing declaration
(perhaps by the UNGA) or as a part of a new international agreement or
arrangement including an implementing agreement. The issue of these
applicable modern principles was discussed and elaborated upon at a workshop held by the International Union for Conservation of Nature (IUCN) in
October 200736 and further explored by other international expert groups.37
In September 2008, the IUCN Global Marine Programme decided to help
clarify these existing principles, issuing a document ‗Ten Principles of High
Seas Governance‘ to assist with this process.38 The final section of this
chapter returns to this issue, briefly sets these out and explains their legal
basis.
IUU Fishing Initiatives
In addition to progress on deep-sea bottom fisheries on the high seas, in
recent years steps have been taken to address the pernicious problem of IUU
fishing, through more thorough investigation of flag-state and RFMO
performance at both the global and regional levels.39 The LOS Convention
recognises that all states have the right for their nationals to engage in
fishing on the high seas.40 However, it specifically subjects that right to three
factors: 1) existing treaty obligations; 2) the rights and duties, as well as
———
36
R. Rayfuse, D. Freestone, K. Gjerde and D. Vanderzwaag, Co-Chairs’ Report of Workshop on
High Seas Governance for the 21st Century, New York, 17–19 October 2007, available at <http:
//cmsdata.iucn.org/downloads/iucn_workshop_co_chairs_summary_new_iucn_format.pdf>. See
also D. Freestone, ‗Principles Applicable to Modern Oceans Governance‘, IJMCL, Vol. 23,
2008, pp. 385–392.
37
See B. Cicin-Sain and D. Freestone, ‗Report from the Strategic Planning Workshop on Global
Ocean Issues in Marine Areas Beyond National Jurisdiction in the Context of Climate Change‘
(Nice, 23–25 January 2008), available at <www.globaloceans.org/globalconferences/2008/pdf/
High-Seas-PB-April9.pdf>. Also M. Balgos, C. Snyder, B. Cicin-Sain, D. Freestone and C.
Tompkins, ‗Executive Summary on the Workshop on Governance of Marine Areas Beyond National Jurisdiction: Management Issues and Policy Options‘ (Singapore, 3–5 November, 2008);
available at <www.globaloceans.org/sites/udel.edu.globaloceans/files/Singapore-WorkshopExecutiveSummary.pdf>.
38
At the IUCN 4th World Conservation Congress, in Barcelona on 7 October 2008, IUCN President Valli Moosa of South Africa chaired a plenary session presenting the IUCN ‗Ten Principles of High Seas Governance‘. For a more detailed exposition of these principles and their legal
basis see Freestone, ‗Principles Applicable to Modern Oceans Governance‘, pp. 385–391; and
D. Freestone, ‗Modern Principles of High Seas Governance: The Legal Underpinnings‘,
International Environmental Policy and Law, Vol. 39, 2009, pp. 44–49.
39
For further in-depth discussion, see T. Lobach, ‗Combating IUU Fishing: Interaction of Global and Regional Initiatives‘, in Vidas (ed.), Law, Technology and Science for Oceans in Globalisation, pp. 109–129.
40
Art. 116 of the LOS Conventon.
69
12
David Freestone
interests, of coastal states;41 and 3) the other provisions of the Convention –
including the duty to take necessary measures for the conservation of the
living resources of the high seas and to cooperate in the conservation and
management of high-seas living resources (through RFMOs).42 However, the
specific provisions relating to cooperative action are largely hortatory –
imposing an obligation simply to negotiate in good faith.43 The ‗unfinished
agenda‘ of these provisions was highlighted by Agenda 21 of the 1992 UN
Conference on Environment and Development. As a result, it was supplemented by the 1993 FAO Compliance Agreement44 and, after several negotiating sessions, by the 1995 UN Fish Stocks Agreement that introduced a
large number of modern fisheries management provisions into the international regime for straddling fish stocks and highly migratory fish stocks. 45
The UN Fish Stocks Agreement commits its parties to the sustainable use of
such stocks; it endorses an ecosystem approach46 and a precautionary approach to the conservation of these stocks.47 These and other provisions of
the UN Fish Stocks Agreement are reflected in the Code of Conduct for
Responsible Fisheries concluded by FAO in 1995 immediately after the
finalisation of the UN Fish Stocks Agreement text.
Appreciating that overfishing and destructive fishing practices have been
identified as the main causes of loss of ocean biodiversity, FAO has sought
to address other important threats to sustainable fisheries by a series of nonbinding instruments called International Plans of Action (IPOAs).48 Three
———
41
Ibid., inter alia Arts 63(2) and 64–67.
Ibid., Part VII, Section 2. Note especially that Art. 119(1)(a) of the Convention requires the
taking of measures to ‗maintain or restore populations of harvested species at levels which can
produce the maximum sustainable yield‘, and these measures must be based ‗on the best scientific evidence available‘ and must accommodate relevant environmental as well as economic
factors including the special requirements of developing states, and taking into account fishing
patterns, the interdependence of stocks and any generally recommended international minimum
standards, whether subregional, regional or global.
43
Arts 63–64 of the LOS Convention.
44
Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas; text in UNTS, Vol. 2221, pp. 91ff; text reprinted in
ILM, Vol. 33, 1994, pp. 968ff. The FAO Compliance Agreement was approved on 24 November 1993 by Resolution 15/93 of the Twenty-Seventh Session of the FAO Conference and
entered in force on 24 April 2003.
45
See further D. Freestone and Z. Makuch, ‗The New International Environmental Law of Fisheries: The 1995 Straddling Stocks Agreement‘, Yearbook of International Environmental Law,
Vol. 7, 1997, pp. 3–49.
46
Art. 5 of the UN Fish Stocks Agreement.
47
Ibid., Art. 6, with a clear methodology for its application to capture fisheries set out in Annex
II.
48
For further in-depth discussion, see D. Doulman, ‗FAO Action to Combat IUU Fishing: Scope
42
70
Problems of High Seas Governance
13
IPOAs were adopted in 1999 by COFI: the IPOA for Reducing Incidental
Catch of Seabirds in Longline Fisheries; the IPOA for the Conservation and
Management of Sharks; and the IPOA for the Management of Fishing Capacity. In June 2001 the FAO Council endorsed the IPOA to Prevent, Deter
and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU). It
contains an extensive ‗toolkit‘ of actions that states can take against such
vessels.49 The 2001 Reykjavik Declaration on Responsible Fisheries in the
Marine Ecosystem included a commitment to work to include ecosystem
considerations in fisheries management activities.50 However, little progress
appears to have been made with respect to guidelines for marine protected
areas (MPAs) for fisheries management purposes that the UNGA requested
the FAO to develop in 2006 also as part of its Resolution 61/105 (paragraph
92).
Although many RFMOs have overlapping parties, there has until recently
been very little formal coordination of conservation and management
activities.51 And indeed, the ability of RFMOs to take effective management
and conservation decisions is hampered by their own decision-making
processes which have extensive ‗opt-out‘ procedures and are not necessarily
obliged to reflect the best available scientific advice. In addition comes the
question of the willingness of member states to police rigorously the
activities of their own vessels and the activities of non-parties.
Ministerially-led Task Force on IUU Fishing on the High Sea
In 2006 at the initiative of a number of key governments and NGOs, a
Ministerially-led Task Force on IUU Fishing on the High Seas developed an
action plan designed to combat illegal, unregulated and unreported fishing
on the high seas.52 The Task Force identified nine practical initiatives necessary to expose IUU fishing activities, to deter them and improve enforce———
of Initiatives and Constraints on Implementation‘, in Vidas (ed.), Law, Technology and Science
for Oceans in Globalisation, pp. 131–155.
49
For a full discussion see M.A. Palma, M. Tsamenyi and W. Edeson, Promoting Sustainable
Fisheries: The International Legal and Policy Framework to Combat Illegal, Unreported and
Unregulated Fishing (Leiden: Martinus Nijhoff, 2010).
50
The 2002 Plan of Implementation of the World Summit on Sustainable Development called
for, inter alia, the application of the Reykjavik Declaration by 2010 as one of the steps essential
for ensuring the sustainable development of the oceans
51
Although see the discussion of the Kobe Process among the tuna RFMOs, below footnote 60.
52
See Closing the Net: Stopping Illegal Fishing on the High Seas, Final Report of the
Ministerially-led Task Force on IUU Fishing on the High Seas, 2006; available at <www.highseas.org>.
71
14
David Freestone
ment against those responsible. The report recommended the following
actions:






First, that new resources be committed to the existing voluntary International Monitoring, Control and Surveillance (MCS) Network to enable it
to become an international network with dedicated resources, analytical
capacity and the ability to provide training and support to developing
countries;53
Second, the development of a global information system on high seas
fishing vessels;
Third, encouragement to countries to become parties to relevant instruments and to collaborate in an international effort to foster better implementation of them – in particular, recognition of the need for RFMOs to
perform better both individually and collectively, as well as the need for
increased cooperation between them on issues of common concern;
Fourth, the report recommended guidance for RFMOs to be reflective of
best practices in the implementation of international fishery instruments,
with a view to encouraging self-evaluation by RFMOs and to aid internal discussions of reform by RFMOs in the near term. To this end, the
report proposed an independent high-level panel to develop a model
RFMO based on a more comprehensive assessment of best practices
worldwide.54 It recognised the need for greater coordination, cooperation
and information-sharing, and it noted that key gaps remain in high seas
governance in several regions and need to be closed. Task Force members recognised that responsible flag-state and port-state behaviour is
central to strong deterrence of IUU fishing;
Fifth, assistance in tackling the problem of flag states that fail to live up
to their international obligations; the Task Force proposed a preliminary
set of guidelines on flag-state performance;
Sixth, the development of a range of measures aimed at improving portstate controls over IUU. These include promoting the broad application
of regional port-state controls, reviewing domestic port-state measures
and suggestions for strengthening domestic legislation controlling the
import of IUU products. Targets might include, for example, enterprises
attempting to import IUU fish, or those that can be shown to be blatantly
———
53
On MCS Network, see M. Kuruc, ‗Monitoring, Control and Surveillance Tools to Detect IUU
Fishing and Related Activities‘, in Vidas (ed.), Law, Technology and Science for Oceans in
Globalisation, pp. 101–108, at p. 107.
54
See M.W. Lodge, ‗Developing a Model for Improved Governance by Regional Fisheries
Management Organisations‘, in Vidas (ed.), Law, Technology and Science for Oceans in Globalisation, pp. 157–174
72
Problems of High Seas Governance


15
jeopardising the resource management measures adopted by a third state
or RFMO;
Recommendations no. 7 and 8 deal with how to secure good information
on IUU activity, and how to address the specific needs of developing
countries in overcoming IUU fishing. Because IUU is a covert activity,
much information on it is necessarily anecdotal. There is a need for
mechanisms that can fill critical gaps in scientific knowledge and assessment, and monitor IUU activity and inform remedial policy. The Task
Force therefore suggested some approaches for improving methods of
assessing and monitoring IUU fishing activity and by-catch, and incorporating these into stock assessments; it also proposed the initiation of a
process to evaluate and then support vulnerable developing countries to
adopt relevant Task Force measures.
Finally, the report proposed a keener focus on the role of remote vesselmonitoring systems in tackling IUU fishing including the development
of internationally accepted codes of practice for its correct application,
with particular concern for security, reliability and data-sharing.55
Review of Effectiveness of RFMOs
As we have seen, much of the international concern that prompted the setting
up of the Task Force has focused on the performance of RFMOs. In 2005 at
COFI, the importance of establishing principles to review the obligations and
principles set forth in relevant international instruments and the performance
of RFMOs in meeting their objectives was discussed. Following that, at the
UN Fish Stocks Agreement Review Conference in May 2006, several key
priorities were flagged: these included improving the functioning of regional
organisations and aligning their conventions and adopted measures with the
UN Fish Stocks Agreement standards; modernising RFMOs, in particular
updating their constitutive instruments to highlight the importance
of implementing precautionary and ecosystem-based approaches to fisheries
management, as well as strengthening monitoring, control and surveillance
regimes and performance review. The Review Conference also proposed the
development of standards and best practice guidelines for RFMOs.
The North-East Atlantic Fisheries Commission led the way, and in
November 2005 decided to undertake such a review. In March 2006 it
became the first RFMO to undertake such a review: its review process has
———
55
The text draws on the report Closing the Net: Stopping Illegal Fishing on the High Seas.
73
16
David Freestone
been held up as a model for others.56 The NEAFC Secretariat reported on this
review to the COFI meeting in 2007, where RFMOs were discussed under a
stand-alone agenda item, for the first time ever.57 Concern was expressed at
COFI on matters such as over-capacity, improvement of fleet statistics and
the issues of countries that undermine the effectiveness of RFMOs and
vessels fishing under what it termed ‗flags of non-compliance‘. One item on
the COFI agenda called for all RFMOs to undertake performance reviews.58
Various actions have been taken to implement these proposals. The Royal
Institute for International Affairs – Chatham House – has sponsored the
development of best practices for RFMOs.59 In January 2007, the members
(and cooperating non-members) of the five tuna RFMOs met in Kobe, Japan
– recognising the critical need to arrest further stock decline in the case of
depleted stocks, to maintain and rebuild tuna stocks to sustainable levels, and
to deal effectively with overfishing, over-capacity and IUU fishing activities
– jointly agreed to take urgent actions to cooperate through tuna RFMOs in
accordance with their obligations under international law. The meeting also
agreed on the standard criteria to be applied in future RFMO reviews. In
what has now become known as the ‗Kobe Process‘, they met again in June
2009.60
Port-State Measures
The LOS Convention and other instruments – such as the 1972 London
Convention and its 1996 Protocol – envisage the use of measures by port
states for the control of marine pollution. In relation to fisheries, Article 23
of the 1995 UN Fish Stocks Agreement specifically recognises that port
states have the right, and indeed the duty, to ‗take measures, in accordance
———
56
See report at <www.neafc.org/system/files/neafc_review_final_march07.pdf>.
See FAO Report at <ftp://ftp.fao.org/docrep/fao/meeting/011/j8995e.pdf>.
58
Some have – e.g., NAFO, CCAMLR and ICCAT. Note that ICCAT‘s 2008 review commented that: ‗ICCAT CPCs‘ performance in managing fisheries on bluefin tuna particularly in the
eastern Atlantic and Mediterranean Sea is widely regarded as an international disgrace‘. See Report of the Independent Performance Review of ICCAT, at <www.iccat.int/Documents/Other/
PERFORM_%20REV_TRI_LINGUAL.pdf>.
59
See Chatham House, Recommended Best Practices for Regional Fisheries Management Organizations. Text at <www.chathamhouse.org.uk/files/9616_rfmo0807sum.pdf>. See also
<www.illegal-fishing.info/uploads/Chatham-House-RFMO-briefing-paper.pdf>. For further discussion of the Chatham House independent panel, see Lodge, ‗Developing a Model for Improved Governance by Regional Fisheries Management Organisations‘, pp. 168–170.
60
Link to documentation is at <www.fao.org/fishery/topic/14908/en>. For copies of the reviews
of the Tuna RFOs see <www.tuna-org.org> (accessed 21 February 2011).
57
74
Problems of High Seas Governance
17
with international law, to promote the effectiveness of subregional, regional
and global conservation measures‘.61
Because of the growth of IUU fishing and growing frustration at the
inability or unwillingness of flag states to exercise effective control over
vessels flying their flags, there has been growing acceptance that port states
have an important role to play in combating what FAO terms ‗nonsustainable fisheries practices‘. Part of such an effort would be the systematisation of port-state measures through the development of an international
legal instrument.62
Such measures had been part of the ‗toolkit‘ agreed by FAO members in
the context of the 2001 IPOA-IUU; and in 2005 FAO had established a
Model Scheme on Port State Measures to Combat Illegal, Unreported and
Unregulated Fishing (Model Scheme).63 In 2006, the UN Fish Stocks Review
Conference called on states to ‗co-operate to adopt Port State measures
particularly those in the FAO Model Scheme‘ and also to initiate ‗as soon as
possible, a process within FAO to develop, as appropriate, a legally binding
instrument on minimum standards for port State measures, building on the
FAO Model Scheme and the IPOA-IUU‘. In the same year the UNGA Resolution on Sustainable Fisheries (61/105) also encouraged states ‗to initiate, as
soon as possible, a process within FAO to develop, as appropriate, a legally
binding instrument on minimum standards for port State measures, building
on the FAO Model Scheme‘.
In March 2007 COFI authorised work on such an international legal
instrument. The text of a draft was developed at an expert consultation held
in Washington DC in September 2007; this formed the basis for the work of
the Technical Consultation held in June 2008 in Rome.64 Progress on the
———
61
Art. 23 of the 1995 UN Fish Stocks Agreement envisages port states inspecting documents,
fishing gear and catch on board vessels ‗when such vessels are voluntarily in it ports or offshore
terminals‘; (Art. 23(2)) and ‗adopting regulations empowering the relevant national authorities to
prohibit landings and transhipments where it has been established that the catch has been taken
in a manner that undermines the effectiveness of subregional, regional or global conservation
and management measures on the high seas‘; (Art. 23(3)). See also E.J. Molenaar, ‗Port State
Jurisdiction to Combat IUU Fishing: the Port State Measures Agreement‘, in D. Russell and D.
VanderZwaag (eds), Recasting Transboundary Fisheries Management Arrangements in Light of
Sustainability Principles: Canadian and International Perspectives (Leiden: Martinus Nijhoff,
2011) pp. 369–386.
62
For example, national port-state measures would typically include requirements related to
prior notification of port entry, use of designated ports, restrictions on port entry and landing/
transhipment of fish, restrictions on supplies and services, documentation requirements and port
inspections, as well as related measures, such as IUU vessel listing, trade-related measures and
sanctions.
63
For the FAO Model Scheme see <www.fao.org/docrep/010/a0985t/a0985t00.HTM>.
64
Technical Consultation to Draft a Legally-Binding Instrument on Port State Measures To Pre75
18
David Freestone
finalisation of the text of this agreement was very slow, and two further
rounds of negotiations, ‗Technical Consultations‘, were held 26–30 January
2009 and 24–28 August 2009.65 Finally, the Agreement on Port State
Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing was approved by the FAO Conference at its Thirty-sixth
Session on 22 November 2009. The Agreement aims to prevent illegally
caught fish from entering international markets through ports. Under the
terms of the treaty, foreign vessels are to provide advance notice and request
permission for port entry, countries are to conduct regular inspections in
accordance with universal minimum standards, offending vessels will be
denied the use of port or certain port services, and information-sharing
networks will be created.66
FAO Global Record
The issue of an international register or record of fishing vessels had been
raised during the negotiation of the 1993 Compliance Agreement – which
requires national governments to keep such records and to make these
available to FAO.67 IMO has a ‗number scheme‘ to identify merchant vessels, and a similar system was thought useful for fishing vessels. However it
took more than a decade for the issue to find its way to COFI. At its meeting
in March 2007, COFI considered a report on an earlier proposal for the
‗Development of a Comprehensive Record of Fishing Vessels, Refrigerated
Transport Vessels, Supply Vessels and Beneficial Ownership‘.68 COFI
agreed to the holding of an ‗Expert Consultation‘ which took place in Rome
in February 2008, to determine the feasibility of such a proposal.69
———
vent, Deter And Eliminate Illegal, Unreported and Unregulated Fishing. For a report of the
Meeting see <ftp://ftp.fao.org/FI/DOCUMENT/tc-psm/2008/prospectus_e.pdf>. See further discussion in Lobach, ‗Combating IUU Fishing: Interaction of Global and Regional Initiatives‘, pp.
113–119.
65
For Report of the Technical Consultation see <www.fao.org/docrep/012/i1122e/i1122e00.
pdf> (accessed 8 March 2011). On the background of FAO Technical Consultation see also
Doulman, ‗FAO Action to Combat IUU Fishing: Scope of Initiatives and Constraints on Implementation‘, pp. 136–138.
66
For text see <www.fao.org/Legal/treaties/037t-e.pdf> (accessed 8 March 2011). At time of
writing it has still to enter into force.
67
Arts. IV and VI of the FAO Compliance Agreement; see further G. Lugten, ‗The FAO Global
Record of Fishing Vessels, Refrigerated Vessels and Fishing Support Vessels‘, IJMCL, Vol. 23,
2008, pp. 761–767.
68
‗Report on the Development of a Comprehensive Record of Fishing Vessels‘, doc. COFI/
2007/Inf.12; available at <ftp://ftp.fao.org/docrep/fao/meeting/011/j8870e.pdf>.
69
‗Report of the Expert Consultation on the Development of a Comprehensive Global Record of
76
Problems of High Seas Governance
19
The proposal has moved away from an IMO model, for as Dr Gail Lugten
reports of the 2008 meeting:
The consultation considered it appropriate for the Global Record to adopt a phased-in
approach, commencing with larger vessels and progressively recording smaller vessels.
Each vessel should have a unique vessel identifier that would not change even if the vessel changed flag, owner or name. This could be accomplished through a numbering system which combined the current LRF system for vessels over 100 GT, and a numbering
system issued by FAO for vessels less than 100 GT. Close cooperation between FAO,
LRF and the International Maritime Organization was encouraged to pursue further oper70
ational details on the unique vessel identifier [UVI].
A Technical Consultation was held in Rome, 8–12 November 2010. The
Consultation was designed to provide recommendations to COFI on a
framework for the ongoing development and implementation of the Global
Record covering each of the key subject areas.71 The Consultation largely
endorsed the proposals outlined above. The Global Record, which is initially
to be voluntary, will be designed to include all fishing and fishing-related
vessels over 10 gross tonnes, or 12 feet in length, of states and other ‗fishing
entities‘ (i.e., Taiwan). It is to be phased in over an eight-year period (with a
first phase evaluation in 2013) and should apply to all vessels regardless of
area of operation. Such vessels will be allocated an UVI; the system will be
run by ‗a competent body‘ – IHS-Fairplay was identified as having the
relevant capability and experience. FAO was asked to mobilise resources to
help developing countries to meet these requirements. COFI endorsed the
recommendations of the Technical Consultation when it met for its 29th
Meeting, 31 January to 4 February 2011.72
———
Fishing Vessels‘, FAO Fisheries Report No. 865; available at <ftp://ftp.fao.org/docrep/fao/010/
i0149e/i0149e00.pdf>.
70
Lugten, ‗The FAO Global Record of Fishing Vessels‘. See also same author, ‗The FAO Global Record of Fishing Vessels: Issues for Pacific Island Countries and FFA‘ at <www.ancors.
uow.edu.au/images/publications/Navigating%20Pacific%20Fisheries%20Ebook/Chapter_4_Nav
igating_Pacific_Fisheries.pdf> (accessed 21 February 2011).
71
Those key subject areas include: the scope of the Global Record; Unique Vessel Identifier
(UVI) as an essential element of the Global Record; hosting, management and funding options
for the Global Record; implementation options for the Global Record; information-access protocols; the needs and opportunities of developing countries; and legal issues and whether a future
binding instrument is appropriate. For the report of the Technical Consultation to COFI see
<www.fao.org/cofi/24006-0b9ec0cc9bc9017585b1cf03dadc87404.pdf> (accessed 21 February
2011).
72
My thanks to Professor Martin Tsamenyi, who chaired the Consultation, for this information.
77
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David Freestone
Flag-State Performance
As noted, the 2006 Ministerially-led Task Force had proposed the development of a set of guidelines on flag-state performance to help to tackle the
problem of flag states that fail to live up to their international obligations;
indeed it proposed a preliminary list. The following year COFI requested
FAO to convene an Expert Consultation to develop criteria for assessing the
performance of flag states and to identify actions that could be taken against
vessels flying the flag of states not meeting those criteria.73 This call was
echoed by the UNGA in 2007,74 and again in 2008,75 after the UN SecretaryGeneral‘s Report on Oceans and the Law of the Sea had noted the
‗prevailing view‘ that ‗fishing vessels on the high seas which are not effectively controlled by their flag states are liable to sanctions by other states
should they happen to contravene international conservation and management measures‘.76
Despite the importance and urgency accorded to this issue by the UN
General Assembly, progress has been slow. In March 2008 the Canadian
government and FAO convened an Expert Workshop on Flag State Responsibilities in Vancouver.77 An FAO Expert Consultation was then held in
Rome in June 200978 and a Technical Consultation (to which all FAO members are invited) is planned for early May 2011.79
———
73
See FAO Fisheries Reports No. 830.
UN doc. A/62/177, of 28 February 2008, para. 41.
75
UN doc. A/63/112, of 24 February 2009, para. 46.
76
Report of UN Secretary-General; UN doc. A/63/63, of 10 March 2008, para. 249.
77
For report of the meeting see <www.dfo-mpo.gc.ca/overfishing-surpeche/documents/flagstate-eng.pdf>. For an excellent discussion of the issues involved see R. Rayfuse, ‗Non-Flag
States Enforcement and Protection of the Marine Environment: Responding to IUU Fishing‘, in
M.H. Nordquist, T.T.B. Koh and J.N. Moore (eds), Freedom of the Seas, Passage Rights and the
1982 Law of the Sea Convention (Leiden: Martinus Nijhoff, 2009), pp. 573–600; and by same
author, ‗The Anthropocene, Autopiesis and the Disingenuousness of the Genuine Link: Addressing Enforcement Gaps in the Legal Regime for Areas beyond National Jurisdiction‘, in E.J.
Molenaar and A.G. Oude Elferink (eds), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (Leiden: Martinus Nijhoff, 2010), pp.
163–190.
78
See Report of Expert Consultation on Flag State Performance, Rome 23-26 June 2009, FAO
Fisheries and Aquaculture Report No. 918 (Rome: FAO, 2009); available at
<ftp://ftp.fao.org/docrep/fao/012/i1249e/i1249e00.pdf>.
79
See <www.fao.org/fishery/nems/39660/en> (accessed on 21 February 2011).
74
78
Problems of High Seas Governance
21
Convention on Biological Diversity
As indicated, the LOS Convention high-seas framework was transformed by
the new concerns for ecosystem maintenance and conservation of biological
diversity introduced by the UNCED in 1992, but these have focused primarily on high seas fisheries, notably through the 1995 UN Fish Stocks
Agreement and the large number of non-binding instruments that have
followed it. The Convention on Biological Diversity80 itself contains little on
marine biodiversity conservation; but, acting under the Jakarta Mandate on
the Conservation and Sustainable Use of Marine and Coastal Biological
Diversity,81 the parties have implemented several important initiatives designed to set in place systems to protect marine biodiversity in areas within
national jurisdiction and scientific information and advice regarding marine
biodiversity beyond areas of national jurisdiction. At its Conference of
Parties (COP 9) in Bonn the CBD called for the compilation and synthesis of
available scientific information on potential impacts of direct humaninduced ocean fertilisation on marine biodiversity, as well as available scientific information on ocean acidification and its impacts on marine biodiversity and habitats, which it identified as a potentially serious threat to coldwater corals and other marine biodiversity. It also agreed to convene an
expert workshop to discuss scientific and technical aspects relevant to environmental impact assessment in areas beyond national jurisdiction.82
Most importantly perhaps, by Decision IX/20, COP 9 adopted the scientific criteria (in Annex I) for identifying ecologically or biologically significant marine areas in need of protection, and the scientific guidance (in
Annex II) for designing representative networks of marine protected areas,83
and requested the Executive Secretary to transmit the information contained
in Annexes I and II to the relevant General Assembly processes. It then
urged its parties, and invited other governments and relevant organisations,
to:
———
80
The Convention on Biological Diversity, done 5 June 1992, entered into force 29 December
1993, text in UNTS, Vol. 1760, pp. 79ff.
81
‗Report of the Second Meeting of the Conference of the Parties to the Convention on Biological Diversity, held at Jakarta from 6 to 17 November 1995‘, UN doc. A/51/312, of 9 September
1996, Annex II, Decision II/10.
82
Decision IX/20, Marine and Coastal Biodiversity, para 10; see <www.cbd.int/decision/cop/
?id=11663>.
83
As recommended by the Expert Workshop on Ecological Criteria and Biogeographic Classification Systems for Marine Areas in Need of Protection, held in the Azores, Portugal, from 2 to
4 October 2007.
79
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David Freestone
apply, as appropriate, the scientific criteria in annex I, the scientific guidance in annex II,
and initial steps in annex III, to identify ecologically or biologically significant and/or
vulnerable marine areas in need of protection, with a view to assist the relevant processes
within the General Assembly and implement conservation and management measures, includeing the establishment of representative networks of marine protected areas in accordance with international law, including the United Nations Convention on the Law of
the Sea, and recognizing that these criteria may require adaptation by Parties if they
choose to apply them within their national jurisdiction noting that they will do so with
84
regard to national policies and criteria.
To help parties in their efforts to apply the CBD criteria and guidance, the
Secretariat of the CBD was requested by the COP 9 to convene an expert
workshop on scientific and technical guidance on the use of bio-geographic
classification systems and identification of marine areas beyond national
jurisdiction in need of protection. The expert workshop was held from 29
September to 2 October 2009 in Ottawa, Canada. Its mandate was to review
and synthesise progress on the identification of areas beyond national
jurisdiction which meet the scientific criteria and assess experience with the
use of bio-geographic classification systems in marine conservation and
management. This enabled the workshop to provide scientific and technical
guidance on the identification of areas beyond national jurisdiction that meet
the CBD scientific criteria, as well as guidance on the use and further
development of bio-geographic classification systems to inform international
cooperation and action. Progress in this regard fed into discussions within
the relevant United Nations processes as well as into COP 10 in Nagoya, in
October 2010.85
The development and approval by the CBD of criteria for ‗Ecologically
and Biologically Significant Areas‘ (EBSAs) provides a major incentive for
the protection of such areas once they have been identified – even, or
perhaps especially, in areas beyond national jurisdiction. Serious questions
remain to be addressed about how to stimulate international and regional
cooperation to protect areas identified by the international community as
meeting the CBD scientific criteria for areas in need of protection that are
located beyond national jurisdiction. As noted above, some RFMOs still
operate under agreements that do not reflect ecosystem-based or precautionary approaches to management of fisheries resources, not to mention the
protection of ecosystems and marine biodiversity that, under the UN Fish
Stocks Agreement, states parties are required to protect. Also, many oceanic
regions beyond national jurisdiction do not have organisations to assist in
integrated and cooperative regional management. Thus more may be
———
84
85
Decision IX/20, para. 18.
For CBD COP 10 Decisions, see <www.cbd.int/cop10/doc/> (accessed 21 February 2011).
80
Problems of High Seas Governance
23
required in terms of improving the performance of RFMOs and other sectoral organisations with respect to biodiversity conservation, and default
mechanisms may be needed for regional and/or global cooperation where no
regional organisation or action plan exists.
Perhaps a first step would be to ensure that all organisations are committed to implementing modern principles of high seas governance and
management, as detailed below.
MODERN PRINCIPLES OF HIGH SEAS GOVERNANCE
As discussed above, in the context of the UNGA discussions, it was also
suggested that clarification of the debates over the emerging high-seas
governance regime could be facilitated if one set out more clearly and explicitly the basic principles that the international community has already
established and agreed to, in existing legal and policy instruments, in relation
to the use and exploitation of the high seas. These principles could at some
point be more formally enumerated – whether as a free-standing declaration
(perhaps by the UNGA) or as a part of another international agreement or
arrangement including an implementing agreement. The following section
briefly sets out these principles. All have been generally accepted by the
international community in a range of global and regional instruments, as
well as in the decisions of many international courts and tribunals. They are
already widely applied on land and to various marine sectoral activities, but
have not yet been uniformly applied to the high seas. Some represent established international law; others agreed international minimum standards. All,
however, require much more rigorous implementation as the first steps in the
development of a robust and appropriate system of international governance
for the high seas.
Principle 1: Conditional Freedom of the Seas
Article 87 of the LOS Convention explicitly recognises six ‗freedoms‘ of the
high seas.86 These are not absolute rights, but are subject to various limitations and corresponding duties upon which their legal exercise is preconditioned. For example, as noted above, under Article 116 of the LOS
Convention all states have the right for their nationals to engage in fishing on
———
86
See Art. 87(1) of the LOS Convention; freedom of the high seas comprises, inter alia, for both
coastal and land-locked states: freedom of navigation; freedom of overflight; freedom to lay
submarine cables and pipelines; freedom to construct artificial islands and other installations
permitted under international law; freedom of fishing; freedom of scientific research.
81
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David Freestone
the high seas, subject to three conditions: ‗(a) their treaty obligations; (b) the
rights and duties as well as the interests of coastal states ...; (c) the provisions
of this section‘. Thus, this is not an absolute right. It is subject to all the
treaty obligations that the flag state may have contracted by its membership
of global and regional treaty regimes, including regional and species-related
fisheries conservation and management treaties. It is also subject to a wide
range of rights and duties that it may owe to, or be due as, a coastal state.
And finally, it is subject to the provisions of Articles 116 to 120 (i.e., section
2 of Part VII of the LOS Convention). These duties, briefly summarised,
include obligations to take measures for their own nationals for the conservation of the living resources of the high seas; to cooperate with other states in
conservation and management of those resources; and to base those measures on the best scientific evidence available, environmental and economic
factors and ‗generally recommended international minimum standards‘. So,
it is important to remember that the freedoms of fishing and of other high
seas uses are conditional freedoms.87
Principle 2: Protection and Preservation of the Marine Environment
The LOS Convention introduced, in Article 192, a major new principle – an
unprecedented, unqualified and robust obligation on all states to ‗protect and
preserve the marine environment‘. It also contains more specific obligations
to protect and preserve rare or fragile species and ecosystems in all parts of
the marine environment, as well as the habitat of depleted, threatened or
endangered species and other forms of marine life.88 In fact, Article 192 is a
general obligation that extends further than simply the avoidance of deliberate or obvious damage, so as to include active measures to maintain or
improve the present condition of the marine environment,89 as well as to
cooperate to this end.90 So, the general obligations of Article 192 and other
provisions reflect both the responsibility to conserve marine ecosystems as
well as to prevent marine pollution.91
———
87
Similar conditions condition the exercise of the other freedoms; one can, and should, therefore
talk about conditional high-seas freedoms, rather than absolute rights.
88
Art. 194(5) of the LOS Convention.
89
S. Rosenne and B. Yankov (eds), United Nations Convention on the Law of the Sea 1982: A
Commentary, Vol. IV (Dordrecht: Martinus Nijhoff, 1990), p. 40.
90
Art. 197 of the LOS Convention. See Principle 3 below.
91
Regional seas agreements give substance to the duty to protect and preserve the marine
environment contained in Arts. 192 and 194(5). See also the 1959 Antarctic Treaty and its 1991
Protocol on Environment Protection; the 1992 OSPAR Convention for the Protection of the
Marine Environment of the North-East Atlantic; and the 1976 Convention for the Protection of
82
Problems of High Seas Governance
25
Principle 3: International Cooperation
In 1970 the UN General Assembly declared that:
All states have the duty to cooperate with one another … in the various spheres of international relations, in order to maintain international peace and security and to promote
international economic stability and progress…92
Various international instruments governing environment and natural
resource conservation also include an obligation to cooperate. For example,
in relation to the high seas, Article 117 of the LOS Convention provides that
‗[A]ll States have the duty to take, or to co-operate with other States in
taking, such measures for their respective nationals as may be necessary for
the conservation of the living resources of the high seas‘.93
Principle 4: Science-Based Approach to Management
The LOS Convention specifically mandates a science-based approach to
management. Article 119 requires states to base their fisheries conservation
and management measures on ‗the best scientific evidence available‘ as well
as environmental and economic factors and ‗generally recommended international minimum standards‘. These same obligations are reflected in the
1995 UN Fish Stocks Agreement which requires that, when adopting
measures to ensure the long-term sustainability of straddling and highly
migratory fish stocks, coastal states and states fishing on the high seas shall
‗ensure that such measures are based on the best scientific evidence available
and designed to maintain or restore stocks at levels capable of maximum
sustainable yield‘.94
———
the Marine Environment and the Coastal Region of the Mediterranean and its 1995 protocols.
On the latter, see Raftopoulos, chapter 27 in this book.
92
Declaration of Principles of International Law, UNGA Resolution 2625 (XXV), of 24 October
1970. Adopted without a vote; it is generally accepted as being declaratory of customary international law.
93
See also Principle 7 of the 1992 Rio Declaration which obliges states to ‗co-operate in a spirit
of global partnership to conserve protect and restore the health and integrity of the Earth‘s ecosystem‘; and Principle 27 which requires that ‗States and people shall cooperate in good faith
and in a spirit of partnership in the fulfillment of the principles embodies in this Declaration and
in the further development of international law in the field of sustainable development‘.
94
Art. 5 of the UN Fish Stocks Agreement. The precautionary methodology is set out in Art. 6
and Schedule II and requires that scientific reference points are established for target species
‗derived from an agreed scientific procedure‘ to constrain harvesting within safe biological limits. Many contemporary fisheries and natural resource management agreements, e.g., the 1980
Convention for the Conservation of Antarctic Marine Living Resources (CAMLR Convention)
and the NEAFC have incorporated these approaches.
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David Freestone
Principle 5: The Precautionary Approach95
In November 1990, the UN Secretary-General expressly recognised the
‗considerable significance‘ of the precautionary principle for future approaches to marine environmental protection and resource conservation.96
Since then it has featured in virtually all international environmental treaties
and policy declarations, most notably those relating to the marine environment and resources.97 Agenda 21 mandates ‗new approaches to marine and
coastal area management … that are integrated in content and precautionary
and anticipatory in ambit‘.98 Principle 15 of the UNCED Rio Declaration
provides that:
In order to protect the environment, the precautionary approach shall be widely applied
by States according to their capabilities. Where there are threats of serious of irreversible
damage lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.99
———
95
A particular interest of the present author; see, e.g., D. Freestone, ‗The Precautionary Principle‘, in R.R. Churchill and D. Freestone (eds), International Law and Global Climate Change
(London: Graham and Trotman, 1991), pp. 21–40; D. Freestone and E. Hey, The Precautionary
Principle in International Law: the Challenge of Implementation (The Hague: Kluwer Law International, 1996); D. Freestone, ‗Implementing Precaution Cautiously: The Precautionary Approach in the 1995 Straddling Stocks Agreement‘, in E. Hey (ed.), Developments in International Fisheries Law (The Hague: Kluwer Law International, 1999), pp. 287–325; D. Freestone,
‗Caution or Precaution: ―A rose by any other name...?‖‘, Yearbook of International Environmental Law, Vol. 12, 2000, pp. 25–32.
96
Report of the UN Secretary-General on the Law of the Sea, UN doc. A/45/721, of 19 November 1990, p. 20, para. 60.
97
Examples of such post-Rio documents include: the 1993 Ministerial Declaration on the Protection of the Black Sea (see Environmental Policy and Law, Vol. 23, 1993, pp. 235–236); the
UN Framework Convention on Climate Change (text reprinted in ILM, Vol. 31, 1992, pp.
848ff); the Convention on Biological Diversity (see footnote 80 above); the Helsinki Convention
on the Protection of the Baltic Sea Area (see footnote 26 above); the 1992 Helsinki Convention
on the Protection and Use of Transboundary Watercourses and Lakes (text reprinted in ILM,
Vol. 31, 1992, pp. 1312ff); the 1992 Maastricht Treaty on European Union (text reprinted in
ILM, Vol. 31, 1992, pp. 247ff); the Convention on the Protection of the Marine Environment of
the North-East Atlantic (see footnote 28 above); and, of course, the 1995 UN Fish Stocks Agreement (see footnote 4 above).
98
Agenda 21, para. 17.1.
99
For the documents adopted at UNCED see UN doc. A/CONF.151/26 (Vols. I–V), of 12
August 1992. See also the 1995 UN Fish Stocks Agreement, Art. 6 and Annex II of the Agreement that sets out guidelines for the application of this approach in relation to the conservation
and management of relevant fish stocks. See also the 1972 London Convention; it is expressly
included in its 1996 Protocol which prohibits the dumping of wastes at sea other than those specifically permitted; these are subject to detailed impact assessment requirements. This is more
detailed than the definition of precaution adopted in para. 10 of the preamble to the Convention
on Biological Diversity, where there is a threat of significant reduction or loss of biological
84
Problems of High Seas Governance
27
Principle 6: The Ecosystem Approach
The first legal instrument in modern times to espouse explicitly an ecosystem approach is the 1980 Convention for the Conservation of Antarctic
Marine Living Resources. As Kiss and Shelton point out, ‗it considers the
interrelationship between all species and their particular physical environment‘ and its coverage is ‗uniquely based on a biological boundary‘, namely
waters south of the Atlantic convergence.100 The ecosystem approach to
natural resource management began to be reflected in legal and policy instruments after the UNGA adopted the World Charter for Nature in 1982.101 This
called on states to protect representative ecosystems but also mandated that
ecosystems and species exploited by mankind should be managed so as not
to endanger co-existing ecosystems and species. By 1992 this approach was
reflected in both Agenda 21 and the Convention on Biological Diversity.
From a marine perspective it is most obviously incorporated in the UN Fish
Stocks Agreement, which together with the precautionary approach (above)
also requires that its parties assess the impacts of fishing, other human
activities and environmental factors on target stocks and species belonging
to the same ecosystem or associated with or dependent upon the target
stocks. Once such assessment has taken place, member states shall ‗adopt,
where necessary, conservation and management measures for species belonging to the same ecosystem or associated with or dependent upon the
target stocks, with a view to maintaining or restoring populations of such
species above levels at which their reproduction may become seriously
threatened‘.102 Several regional and species fisheries agreements now reflect
this approach.103
———
diversity, lack of full scientific certainly should not be used as a reason for postponing measures
to avoid or minimise such a threat.
100
A. Kiss and D. Shelton, International Environmental Law, 3rd edn (London: Graham and
Trotman, 2004), p. 645. On the CAMLR Convention area, see Miller, Slicer and Sabourenkov,
‗IUU Fishing in Antarctic Waters: CCAMLR Actions and Regulations‘, at pp. 176–177.
101
UNGA Resolution 37/7, supported by 111 states (18 abstaining). See also W.E. Burhenne
and W.A. Irwin, The World Charter for Nature: a Background Paper (Berlin: Schmidt, 1983);
International Council of Environmental Law, Commentary on the World Charter for Nature
(Bonn: IUCN Environmental Law Centre, 1986).
102
Art. 5 (d) and (e).
103
The South-East Atlantic Fisheries Organisation (SEAFO) was established by the convention
signed in Windhoek, Namibia, 20 April 2001 (text reprinted in ILM, Vol. 41, 2002, pp. 257ff); it
is the first general fisheries convention to have been negotiated after the 1995 UN Fish Stocks
Agreement and to reflect its requirements. Similarly, the Commission for the Conservation and
Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
(WCPFC) was established by the Convention and opened for signature at Honolulu, 5 September 2000 (text reprinted in ILM, Vol. 40, 2001, pp. 277ff); the Convention was the first regional
85
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David Freestone
At the 2001 Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem, organised by FAO and the government of Iceland, states
recognised in the final declaration that sustainable fisheries management
incorporating ecosystem considerations entails taking into account the
impacts of fisheries on the marine ecosystem and the impacts of the marine
ecosystem on fisheries. They also recognised the need to introduce immediately effective management plans with incentives that encourage responsible
fisheries and sustainable use of marine ecosystems, including mechanisms
for reducing excessive fishing efforts to sustainable levels, and declared that
the prevention of adverse effects of non-fisheries activities on the marine
ecosystems and fisheries requires action by relevant authorities and other
stakeholders.104
Principle 7: Sustainable and Equitable Use
Many international legal instruments now recognise the new paradigm of
‗sustainable use‘ or ‗sustainable development‘. Sustainable development, as
defined by the Brundtland Commission, is ‗development that meets the
needs of the present without compromising the ability of future generations
to meet their own needs‘.105 It thus reinforces the equitable notion of fairness
or equity in relation to the needs of present and future generations as balanced by environmental limits and goals. 106 A commitment to sustainable
use can now be found in a wide range of international instruments, including
those relating to ocean use such as the 1995 UN Fish Stocks Agreement, 107
———
tuna fisheries agreement to be adopted after the conclusion of the 1995 UN Fish Stocks Agreement, and it also reflects its requirements.
104
The Conference on Responsible Fisheries in the Marine Ecosystem was held in Reykjavik,
Iceland, from 1 to 4 October 2001. The Conference adopted the Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem, available at <www.fao.org/docrep/005/Y2198T/
y2198t01.htm>.
105
The World Commission on Environment and Development, Our Common Future (Oxford
University Press, 1987).
106
The principle is Principle 4 of the 1992 Rio Declaration, and permeates other principles,
Agenda 21 and numerous other instruments. In 1997 it was considered by the International
Court of Justice in the Gabcikovo–Nagymaros Case between Hungary and Slovakia. Although
the famous separate opinion of Judge Christopher Weeramantry, that sustainable development
was a principle of customary international law, was not endorsed by the majority of the Court, it
did however recognise the ‗need to reconcile economic development with protection of the environment … aptly expressed in the concept of sustainable development‘. ICJ Reports 1997, p. 78
at para. 140.
107
Art. 5(a). States that are party to the Agreement are for example obliged to ‗(a) Adopt conservation and management measures to ensure long-term sustainability and promote the objective
of their optimum utilization‘.
86
Problems of High Seas Governance
29
the 1995 FAO Code of Conduct for Responsible Fisheries and 2001 Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem.108
Principle 8: Public Availability of Information
Principle 10 of the Rio Declaration recognises that ‗[E]nvironmental issues
are best handled with the participation of all concerned citizens, at the
relevant level … States shall facilitate and encourage public awareness and
participation by making information widely available‘. These hortatory
provisions have been given important legal substance by the 1998 ECE
Aarhus Convention on Access to Information, Public Participation in
Decision Making in Environmental Matters.109 While the Aarhus Convention
is a regional agreement concluded under the auspices of the UN Economic
Commission for Europe (ECE), it is highly unusual in that it is open for
accession by any other UN member state, even if not an ECE member, with
the approval of the Meeting of the Parties.110 In May 2005, at their second
meeting in Almaty, Kazakhstan, the parties to the Aarhus Convention
adopted a decision (II/4) expressly ‗Promoting the Application of the Principles of the Aarhus Convention in International Forums‘.111 Decision II/4
elaborates the Almaty Guidelines that declare that access to information and
public participation in environmental matters are ‗fundamental elements of
———
108
In relation to fisheries the UN Fish Stocks Agreement, the FAO Code of Conduct on Responsible Fisheries, as well as the 2001 Reykjavik Declaration on Responsible Fisheries in the
Marine Ecosystem, see <ftp://ftp.fao.org/fi/DOCUMENT/reykjavik/y2198t00_dec.pdf>. Sustainable use of fisheries is also included in the commitments of the world community in the 2002
Johannesburg World Summit on Sustainable Development Plan of Implementation. A wellpublicised aspect of this is the disproportionate overcapitalisation and use of state subsidies in
the fisheries sector which decreases the ability of developing countries, as new entrants, to benefit from fisheries (intra-generational equity) and diminishes future options for sustainable fisheries (inter-generational equity). See World Bank/FAO, The Sunken Billions: The Economic Justification for Fisheries Reform; this study shows that the difference between the potential and
actual net economic benefits from marine fisheries is in the order of USD 50 billion per year –
equivalent to more than half the value of the global seafood trade.
109
Signed 25 June 1998, entered into force 30 October 2001. It has 41 state parties and the EC.
The EC has already started to reflect Aarhus principles in Community law, notably through
Directive 2000/60/EC, Water Framework Directive; see further discussion by Churchill, chapter
22 in this book.
110
Under the provisions of Art 19(3). While Aarhus Convention is directly relevant to national
environmental decision-making, nevertheless it does represent the ‗gold standard‘ for the implementation of the aspirations of Rio Principle 21 and many of the European nations that are party
to other international agreements concerning the high seas, such as the 1972 London Convention
and its 1996 Protocol as well as RFMOs, are also party to the Aarhus Convention.
111
ECE/MP.PP/2005/2/Add.5, of 20 June 2005.
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David Freestone
good governance at all levels and essential for sustainability‘ (paragraph
11).112 Aarhus parties are mandated, inter alia, to ‗encourage international
forums to develop and make available to the public a clear and transparent
set of policies and procedures on access to environmental information‘
(paragraph 19). The tenets of this principle lead directly to the next one:
Principle 9: Transparent and Open Decision-Making Processes
Transparency and openness in the conduct of the work of international and
intergovernmental processes are now becoming the norm. Treaty-based organisations such as the IMO and the meetings of the conference of the
parties to multilateral conventions such as the Convention on Biological
Diversity, while acknowledging that states are the primary players, do
accord access to other non-state participants. Background papers and secretariat papers are commonly distributed to both state and non-state participants. Even though that the biological resources of the high seas could be
regarded as a common resource, this is not the case, or has not in the past
been the case, for high-seas fisheries management bodies. It is Article 12 of
the UN Fish Stocks Agreement which for the first time introduces an obligation on its state parties to provide for ‗transparency in the decision-making
process and other activities or subregional and regional fisheries management organisations and arrangements‘. Article 12(2), which has already been
adopted by some fisheries bodies and may be regarded as minimum international practice, specifically provides that:
Representatives from other international organizations and representatives from nongovernmental organizations concerned with straddling fish stocks and highly migratory
fish stocks shall be afforded the opportunity to take part in meetings of subregional and
regional fisheries management organizations and arrangements as observers or otherwise,
as appropriate, in accordance with the procedures of the organization or arrangement
concerned. Such procedures shall not be unduly restrictive in this respect. Such intergovernmental organizations and non-governmental organizations shall have timely access to the records of such organizations and arrangements, subject to the procedural
rules on access to them.113
———
112
Note that the guidelines define ‗environmental information‘ to include the state of the elements of the environment, including ‗biological diversity and its components‘.
113
Note also the Almaty Guidelines that provide that: ‗Participation of the public concerned in
the meetings of international forums... in matters related to the environment should be allowed at
all relevant stages of the decision making process, unless there is a reasonable basis to exclude
such participation‘ (para. 29).
88
Problems of High Seas Governance
31
Principle 10:
Responsibility of States as Stewards of the Global Marine Environment
Principle 21 of the 1972 Stockholm Declaration provides that:
States, have, in accordance with the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas be114
yond the limits of national jurisdiction.
A simpler statement of a principle, derived directly from these words and
applicable to the high seas and which would be widely regarded as a principle of customary international law, would read as follows: ‗States … have
the responsibility to ensure that activities within their jurisdiction or control
do not cause damage to the environment … of areas beyond the limits of
national jurisdiction‘.115
This concept of responsibility reflects a pro-active obligation that would
support various proposals put forward for a form of stewardship role in protecting the resources of areas beyond national jurisdiction.116 It was that
same concept of responsibility that the drafters seemed to be trying to
capture in the 1995 FAO Code of Conduct for Responsible Fisheries. That,
and similar provisions of the 1993 FAO Compliance Agreement and the
1995 UN Fish Stocks Agreement, require flag states to supervise properly
the activities of their fishing vessels when on the high seas. And yet the
continued major threats of IUU fishing demonstrate that flag states are
simply not exercising this sort of control. Responsibility in this sense
involves an obligation on states not merely to regulate vessels flying their
flag operating on the high seas (and many states seem unable to manage that)
but also their nationals, captains, crews, owners and investors – all those in
the value chain of activities that do, or might, cause harm to the environment
in areas beyond national jurisdiction. As noted above, the FAO has already
begun to develop principles for audits of Flag-State Performance.
———
114
These rights and obligations are repeated virtually verbatim in Rio Principle 2.
This is indeed the text of Art. 3 of the 1992 Convention on Biological Diversity: ‗States have,
in accordance with the Charter of the United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to their own environmental policies, and
the responsibility to ensure that activities within their jurisdiction or control do not cause damage
to the environment of other States or of areas beyond the limits of national jurisdiction‘.
116
P.H. Sand, ‗Sovereignty Bounded: Public Trusteeship for Common Pool Resources?‘, Global
Environmental Politics, Vol. 4, 2004, pp. 47–71; R. Rayfuse and R. Warner, ‗Securing a Sustainable Future for the Oceans beyond National Jurisdiction‘, IJMCL, Vol. 23, 2008, pp. 399–
422.
115
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David Freestone
CONCLUSIONS
The governance of areas beyond national jurisdiction is probably the most
pressing marine issue facing the world community. It is paradoxical that, on
the one hand, science is helping us to appreciate more fully the rich biodiversity of marine areas beyond national zones and the important role this
plays in the global system, including helping to regulate its climate; while on
the other hand, these high seas areas face increasing adverse impacts – both
from the intensification of existing human activities and from major new
risks. IUU fishing for deep-ocean species, uncontrolled bottom-trawling over
seamounts, exploration of hydrothermal vents as well as proposals for geoengineering activities such as iron fertilisation – these are just some of the
activities which reveal the lack of an holistic system of governance for these
areas, built on established and agreed basic principles.
This chapter has sought to set out the key risks that high seas areas face,
the plethora of bodies with regional and sectoral jurisdiction but also the
lacunae – the regulatory and governance gaps that remain. The attention of
the international community has been focused on this issue for some time
already. The UN General Assembly has mandated several important actions;
and the meetings of the ponderously named ‗Ad Hoc Open-ended Informal
Working Group to study issues relating to the conservation and sustainable
use of marine biological diversity beyond areas of national jurisdiction‘ have
helped to widen our understanding and to focus informed opinion on the
major issues facing the high seas. Unfortunately the lively debates on
improved governance have been overshadowed by controversy over the
future regime for exploitation of marine genetic resources beyond national
jurisdiction.117 Various important initiatives are underway but progress has
been very slow. The case for a new instrument, perhaps based on agreed
principles, that can pull together all the various themes and sectoral responsibilities discussed above and provide some overarching system of governance
of the high seas is becoming very difficult to resist.
———
117
The controversy involves the question of should these be subject to the ‗Common Heritage of
Mankind‘ principle as proposed by the G77 or a continuing open access regime? For an excellent assessment of the issues and potential of bio-prospecting see, D. Leary, M. Vierros, G.
Hamon, S. Arico and C. Monagle, ‗Marine Genetic Resources: A Review of the Scientific and
Commercial Interest‘, Marine Policy, Vol. 33, 2009, pp. 183–194. A comprehensive analysis of
various legal issues involved is found in Part IV, ‗Marine Genetic Resources and Bioprospecting‘, in D. Vidas (ed.), Law, Technology and Science for Oceans in Globalisation, pp. 309–419.
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The International Journal of
Marine and Coastal Law 27 (2012) 647–655
MARINE
AND COASTAL
LAW
brill.nl/estu
Current Legal Developments
The Sargasso Sea
The Sargasso Sea Alliance: Seeking to Protect the Sargasso Sea
The Sargasso Sea Alliance was formed in 2010 under the leadership of the
Government of Bermuda. It aims to secure legal protection measures for
the Sargasso Sea—which is a 2-million-square-nautical-mile ecosystem in the
North Atlantic that is primarily high seas. Named for the alga that accumulates in the North Atlantic Subtropical Gyre and which forms into large mats
or windrows, the Sargasso Sea is the world’s only sea without coasts; only the
tiny islands of Bermuda have direct coastal frontage. The Sargasso Sea is
bounded on all sides by the clockwise flow of major ocean currents: the Gulf
Stream and North Atlantic Drift form the western and northern boundaries,
the Canary Current forms a more diffuse eastern boundary, and the North
Equatorial Current and Antilles Current form the southern boundary. Just as
the currents vary, the boundaries of the Sargasso Sea also vary. The Sargassum
is home to a range of endemic species and the Sargasso Sea is a major feeding
and migration route for a number of threatened and endangered species,
including sea turtles, humpback and sperm whales, as well as for commercially important tunas and billfish. It is the only place in the world where the
catadromous American eel (Anguilla rostrata), and the endangered European
eel (Anguilla anguilla) spawn.1 Bermuda, at the centre of the Sargasso Sea, is
an overseas territory of the United Kingdom. It claims a 200-nautical-mile
exclusive economic zone (EEZ) of some 173,891 square miles. Beyond the
Bermudian EEZ, however, the remainder of the Sargasso Sea is largely an area
beyond national jurisdiction (ABNJ).2
1
The European eel is protected by European Union (EU) Regulations. Council Regulation
(EC) No. 1100/2007 of 18 September 2007 establishing measures for the recovery of the
stock of European eel, OJ 2007 L248/17.
2
Depending on what is defined to be the geographical extent of the Sargasso Sea, it can be
taken to extend into the EEZs of the United States to the east and the Northern Antillean
islands to the south. The Alliance has commissioned a new map based on criteria such as ocean
© Koninklijke Brill NV, Leiden, 2012
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The International Journal of Marine and Coastal Law 27 (2012) 647–655
Marine Protected Areas in ABNJ
The challenges of seeking to establish a marine protected area in ABNJ are
considerable. Under international law the high seas are open to all. Article 87
of the 1982 Law of the Sea Convention (LOSC or 1982 Convention) envisages six basic high seas freedoms for all states: navigation; overflight; freedom
to lay submarine cables and pipelines; to construct artificial islands and other
installations; freedom of fishing and of scientific research. Although the exercise of the freedoms is subject to some important general conditions, the only
specific restrictions that can be made to the exercise of these rights are by
international agreement binding only on states which are party to them. The
1982 Convention does oblige all states to “protect and preserve the marine
environment”,3 including “rare or fragile ecosystems as well as the habitat of
depleted, threatened or endangered species and other forms of marine life.”4
It also obliges states in Article 197 to “cooperate on a global basis and, as
appropriate, on a regional basis, directly or through competent international
organizations, in formulating and elaborating international rules, standards
and recommended practices and procedures consistent with this Convention,
for the protection and preservation of the marine environment, taking into
account characteristic regional features.”
Existing treaties regulate a range of specific activities which take place in
ABNJ, such as fishing, wildlife protection, navigation, and seabed mining,
but these treaties are only binding on their parties. In addition the problem of
proper governance in ABNJ is exacerbated by the patchwork of treaties that
exists. A review of existing organizations with jurisdiction over activities in
ABNJ shows that there are serious gaps in coverage.5 In relation to sectoral
current and eddy occurrence, remote sensing of Sargassum weed, and historical mapping. It
can be viewed at www.sargassoalliance.org.
3
Article 192 LOSC.
4
Article 194(5) LOSC.
5
K. Gjerde, H. Dotinga, S. Hart, E.J. Molenaar, R. Rayfuse, R. Warner, Regulatory and
Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine
Biodiversity in Areas beyond National Jurisdiction (IUCN, Gland, Switzerland (2008) (available
at http://cmsdata.iucn.org/downloads/iucn_marine_paper_1_2.pdf ).
See also, David Freestone, “Problems of High Seas Governance”, pp. 99–130 in D. Vidas and
P.J. Schei (eds.) The World Ocean in Globalisation: Challenges and Responses (Martinus Nijhoff
Publishers, Leiden, 2011); and in the same volume at pp. 221–232, K. Gjerde, “High Seas
Fisheries Governance: Prospects and Challenges in the 21st Century.” For an excellent wider
discussion of the ABNJ legal regime see Robin Warner, Protecting the Oceans beyond National
Jurisdiction: Strengthening the International Law Framework (Martinus Nijhoff Publishers,
Leiden, 2009).
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activities these gaps are functional as well as geographic. This is not necessarily
a defect in the LOSC itself—it is a defect in implementation.
Governance in ABNJ has been on the agenda of the UN General Assembly
for nearly a decade. In 2004, in order to address the full range of issues particularly related to the conservation of biodiversity in ABNJ, the UN General
Assembly agreed on the recommendation of the UN Informal Consultative
Process on Oceans and the Law of the Sea (UNICPOLOS) to establish an
Ad Hoc Open-ended Informal Working Group to study issues relating to
the conservation and sustainable use of marine biological diversity beyond
areas of national jurisdiction (known as the BBNJ process).6 This Working
Group held its first meeting in 2006; a second ran from 28 April to 2 May
2008, a third meeting was held in January 2010, a fourth in May 2011, and
a fifth in May 2012. Several important proposals have been discussed at these
meetings, including a European Union proposal for a new implementing
agreement to develop a more specific framework to address conservation and
sustainable use of marine biodiversity beyond national jurisdiction. Issues
highlighted in the discussions have included the absence of a global instrument regulating the establishment and monitoring of Marine Protected Areas
(MPAs) on the High Seas (even though MPAs have proven to be extremely
effective in maintaining biodiversity in coastal contexts), the absence of comprehensive Environmental Impact Assessments for new activities in ABNJ, as
well as the lack of co-ordination between those international organizations
that are charged with regulating specific sectoral activities.7
Other states have indicated that improved implementation should be the
first priority, but have not all provided their views on what might be done to
enhance implementation with respect to biodiversity conservation in general.
Unfortunately the lively debates on improved governance have been overshadowed by controversy over the future regime for exploitation of marine
genetic resources beyond national jurisdiction.8 The G77 and China have
6
For details of the meetings to date see http://www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm.
7
It has also been suggested that the international community should reaffirm some of the
basic principles that have been agreed in a wide range of existing instruments, including the
1982 Convention, in relation to national activities in ABNJ. At the IUCN 4th World Conservation Congress, in Barcelona on 7 October 2008, IUCN President Valli Moosa of South
Africa chaired a plenary session presenting the IUCN “Ten Principles of High Seas Governance.” For a more detailed exposition of these principles and their legal basis see David
Freestone, “Principles Applicable to Modern Oceans Governance” (2008) 23 IJMCL 385–
391 and David Freestone, “Modern Principles of High Seas Governance: The Legal Underpinnings” (2009) 39 International Environmental Policy and Law 44–49.
8
For an excellent assessment of the issues and potential of bio-prospecting see D. Leary,
M. Vierros, G. Hamon, S. Arico and C. Monagle, “Marine Genetic Resources: A Review of
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argued that the “common heritage of mankind” concept that the LOSC
applies to deep sea minerals9 should also apply to the living resources of the
deep ocean floor, many of which may have important industrial and pharmaceutical potential. They argue that if the drafters of the 1982 Convention had
been aware of these resources—rather than simply being aware of the famous
“manganese nodules”—then they would doubtless have included these living
resources within the deep sea bed regime.
The result has been a stalemate in the discussions at the BBNJ Working
Group, but at the May 2011 Meeting there was something of a breakthrough.
It was agreed that the two issues should be linked and that:
A process [should] be initiated, by the UNGA, with a view to ensure that the
legal framework for the conservation and sustainable use of marine biodiversity
in areas beyond national jurisdiction effectively addresses those issues by identifying gaps and ways forward, including through the implementation of existing
instruments and the possible development of a multilateral agreement under
UNCLOS [1982 Convention]; This process would address the conservation and
sustainable use of marine biodiversity in areas beyond national jurisdiction, in
particular, together and as a whole, marine genetic resources, including questions
on the sharing of benefits, measures such as area-based management tools, including marine protected areas, and environmental impact assessments, capacitybuilding and the transfer of marine technology.10
This was discussed further at the 2012 BBNJ Working Group meeting,11 and
is expected to be discussed at the UN Conference on Sustainable Development (Rio + 20) in June 2012. However, such a process, if agreed, is likely to
take a considerable time and a final agreement would again only be binding
on its parties.
the Scientific and Commercial Interest” (2009) 33 Marine Policy 183–194. A comprehensive
analysis of various legal issues involved is found in Part IV, “Marine Genetic Resources and
Bio-prospecting”, in D. Vidas (ed.), Law, Technology and Science for Oceans in Globalisation,
(Martinus Nijhoff, Leiden, 2010) pp. 309–419.
9
See Article 138 LOSC: “The Area and its resources are the common heritage of mankind.”
Article 133 LOSC further provides that “resources” means “all solid liquid or gaseous mineral
resources in situ in the Area at or beneath the seabed, including polymetallic nodules.”
10
Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues
relating to the conservation and sustainable use of marine biological diversity beyond areas of
national jurisdiction and Co-Chairs’ summary of discussions. UN Doc A/66/119 (30 June
2011). Available online at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/397/64/
PDF/N1139764.pdf ?OpenElement.
11
New York, 7–11 May 2012. For Agenda see UN Doc A/AC.276/L.8 (3 April 2012)
Online at: http://daccess-dds-ny.un.org/doc/UNDOC/LTD/N12/282/68/PDF/N1228268.
pdf ?OpenElement.
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Protecting the Sargasso Sea
The Sargasso Sea Alliance is trying to move forward with a possible MPA in
ABNJ using only the existing sectoral institutions. In other words, accepting
that governance of ABNJ is fragmented, what can be achieved in terms of
protection for such areas using the existing organisational structures? Some
limited success in establishing ABNJ MPAs in other regions has been achieved,
notably in the North-East Atlantic OSPAR region12 and in the South Orkney
area of the Southern Ocean using the Convention for the Conservation of
Antarctic Marine Living Resources (CCAMLR).13 Both those regions have
developed regional agreements for marine conservation (including in ABNJ)
which envisage the establishment of MPAs. However, despite the fact that the
Sargasso Sea lies between Europe and the Americas, there is no regional marine
environmental treaty covering the Sargasso Sea region. Nor is there a General
Fisheries Treaty Regime applicable to the whole Sargasso Sea area for all
non-tuna species.14 This again distinguishes it from the North East Atlantic
which has the North East Atlantic Fisheries Commission (NEAFC),15 to correspond with OSPAR, the Southern Ocean, where CCAMLR performs both
roles, and the Mediterranean, which has the General Fisheries Council for
the Mediterranean.16
In this sense the Sargasso Sea Alliance, led by the Government of Bermuda,
is seeking to break new ground, by seeking to establish a MPA in the high seas
areas of the Sargasso Sea using the existing legal framework and any existing
sectoral bodies that may be able to assist.17 The Alliance has four basic aims:
12
The 1992 Convention for the Protection of the Marine Environment of the North-East
Atlantic (the “OSPAR Convention”) was formed from the merger of the Commissions of the
1972 Oslo Convention and the 1974 Bonn Convention. It entered into force in March 1998.
Text at (1993) 32 ILM 1072 and at http://www.ospar.org/html_documents/ospar/html/
ospar_convention_e_updated_text_2007.pdf.
13
The 1980 Convention for the Conservation of Antarctic Marine Living Resources (entered
into force 1982) is part of the Antarctic Treaty System. Text at (1980) 19 ILM 837 and at
http://www.ccamlr.org/pu/e/e_pubs/bd/pt1.pdf.
14
As opposed to a regime for tuna and tuna-like species—see discussion of ICCAT below.
15
The 1980 Convention on Future Multilateral Co-Operation in North-East Atlantic Fisheries, entered into force in 1982. For text as amended see http://www.neafc.org/system/files/
london-declarlation_and_new_convention.pdf.
16
The Mediterranean Sea has an environmental protection treaty in the 1976 Barcelona Convention, as amended.
17
The secretariat of the Alliance is located in the Washington DC Office of IUCN. The Alliance has a small Executive Committee and a larger Steering Committee. It is supported by
private donors and foundations. For details see www.sargassoalliance.org.
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• To build an international partnership to secure global recognition of the
importance and ecological significance of the Sargasso Sea, the threats
that it faces, and the precautionary management it needs;
• To use existing regional, sectoral and international organizations to
secure a range of protective measures for the Sargasso Sea;
• To establish appropriate management for the Sargasso Sea; and
• To use the current process as an example of what can and cannot be
delivered through existing frameworks in marine ABNJ to inform the
global debate and provide a model for protection of other high seas
regions.
The Relevant Sectoral Organisations
The northern edges of the Sargasso Sea and of the Bermudian EEZ do intrude
into the geographical area of competence of the North West Atlantic Fisheries
Organisation (NAFO).18 However, the majority of the high seas areas of the
Sargasso Sea are neither covered by a regional environmental agreement nor
by a regional fisheries management organization.19
In the Sargasso Sea, the only international bodies that have sectoral jurisdiction are the International Maritime Organization (IMO) in relation to
shipping and vessel-source pollution issues,20 the International Commission
for the Conservation of Atlantic Tunas (ICCAT),21 which regulates fisheries
for tuna and tuna-like species in the north and south Atlantic, and the International Seabed Authority (ISA), which has jurisdiction over seabed mineral
resource exploration and exploitation in the Area.22 In addition, while only
18
NAFO was founded in 1979 as a successor to ICNAF (International Commission of the
Northwest Atlantic Fisheries) (1949–1978). The 1979 Convention on Future Multilateral
Cooperation in the Northwest Atlantic Fisheries applies to most fishery resources of the
Northwest Atlantic except salmon, tunas/marlins, whales, and sedentary species (e.g., shellfish). For text see http://www.nafo.int/about/overview/governance/convention/convention.pdf.
19
This is in distinct contrast with the ABNJ of the North-east Atlantic which are included
within the area of competence of both a regional environmental agreement, in the shape of
the 1992 OSPAR Convention, and a corresponding regional fisheries management body—
the North East Atlantic Fisheries Commission (NEAFC).
20
In 1948 an international conference in Geneva adopted a convention formally establishing
IMO (the original name was the Inter-Governmental Maritime Consultative Organization, or
IMCO, but the name was changed in 1982 to IMO). It currently has 170 Member States and
three Associate Members. See http://www.imo.org/About/HistoryOfIMO/Pages/Default.aspx.
21
The International Convention for the Conservation of Atlantic Tunas was signed in Rio de
Janeiro, Brazil, in 1966. It entered into force in 1969 and currently has 48 parties. Further
details at http://www.iccat.int/en/contracting.htm.
22
Created by Part XI, Section 4 of the 1982 LOSC, Articles 156–158.
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advisory in nature, the FAO body, the Western Central Atlantic Fishery
Commission (WECAFC), which includes the Sargasso Sea by geography, has
recently shown potential for conservation-minded recommendations in their
February 2012 meeting, which included a resolution on strengthening the
implementation of international fisheries instruments. WECAFC noted the
“need to preserve biodiversity, minimize the risks of long-term or irreversible
effects of fishing operations, avoid adverse impacts on the marine environment, maintain the integrity of marine ecosystems including deep-sea vulnerable marine ecosystems and effectively apply the precautionary and ecosystem
approaches to fisheries management.” Furthermore, they “agree(d) to take
actions and measures to strengthen implementation of existing international
fisheries instruments and those that may be developed in the future . . .”23
A number of other international conventions are also of potential relevance.
At the tenth session of the Conference of Parties to the Convention on Biological Diversity (CBD) in Nagoya, Japan, the parties decided to initiate a
science-driven process to describe ecologically and biologically significant
areas (EBSAs).24 To that end a series of workshops have been organised by the
CBD Secretariat in association with other organisations to identify such
areas.25 At a workshop in Brazil in March 2012, the Government of Bermuda
put forward a proposal for the “Description” of the Sargasso Sea as an EBSA,
which was approved by the 16th Meeting of the CBD Subsidiary Body on
Scientific, Technical and Technological Advice (SBSTTA) in April/May 2012
and will now be considered by the 11th CBD COP in Hyderabad in October
2012. “Description” as an EBSA has no legal significance, but it is intended
that the CBD process will be taken into account by other international
23
Resolution on Strengthening the Implementation of International Fisheries InstrumentsWECAFC 14 Session, Panama City, 6–9 February 2012 (WECAFC/XIV/2012/7. Available
at: http://www.fao.org/docrep/meeting/024/am121e.pdf.
24
“[The] primary objective of this process is to facilitate the description of ecologically or
biologically significant marine areas through application of scientific criteria in annex I of
decision IX/20 as well as other relevant compatible and complementary nationally and inter
governmentally agreed scientific criteria, as well as the scientific guidance on the identification
of marine areas beyond national jurisdiction, which meet the scientific criteria in annex I to
CBD Decision IX/20.” CBD Decision X/29, Paragraph 36.
25
The Workshops held to date include : Joint CBD/NEAFC/OSPAR Scientific Workshop
on the Identification of Ecologically or Biologically Significant Marine Areas, EBSAs in the
North-East Atlantic, Hyères, France, 8–9 September 2011; Western South Pacific Regional
Workshop to Facilitate the Description of Ecologically or Biologically Significant Marine
Areas (22–25 November 2011, Nadi, Fiji); Wider Caribbean and Western Mid-Atlantic
Regional Workshop to Facilitate the Description of Ecologically or Biologically Significant
Marine Areas (28 February–2 March 2012, Recife, Brazil). For further details see http://www
.cbd.int/meetings/.
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processes charged with managing and conserving ocean resources. For example, while the CBD does not have competence to designate MPAs, information shared through the EBSA identification process may help strengthen the
scientific basis for protective measures at other sectoral entities.
The Convention on the Conservation of Migratory Species (CMS) may
also be of relevance.26 A number of migratory species travel through the Sargasso Sea, some of which—like the American and European eel—are not
protected in international waters. Under the CMS, States can enter into
Range State Agreements and/or Memoranda of Understanding to protect
species within their full habitat range and can serve as a strong example of
how international collaboration can improve marine protection for a shared
species across jurisdictions, and even in ABNJ.
The World Heritage Convention27 envisages the recognition of sites
which are “situated on the territory” of any of its Parties (Articles 3 and 4)
or “in its territory” (Article 11)—which seems to exclude ABNJ Sites. As
ABNJ cover nearly half the globe, it has been wittily remarked that perhaps it
should be called “Half the World Heritage Convention.”28 The Secretariat is
reported to be looking at ways in which high seas sites might be incorporated
into the WHC regime—the Sargasso Sea would clearly be a poster child
for such a venture.
In addition to pursuing the adoption of protection measures in the organisations described above, the Alliance is planning to convene an intergovernmental meeting in 2013 to encourage states and international organisations to
collaborate voluntarily to protect the Sargasso Sea, through the negotiation
and acceptance of an agreed political declaration on collaborative action to
conserve the Sargasso Sea. Such a Hamilton Declaration (Hamilton is the
capital city of Bermuda) is envisaged to include key Atlantic Rim countries
and states from the Caribbean and is an on-going diplomatic effort in parallel
26
The Convention on Migratory Species was concluded in Bonn on 23 June 1979, and came
into force in 1983. For text see (1980) 19 ILM 15 and at http://www.cms.int/documents/
convtxt/cms_convtxt.htm.
Migratory species may be listed under Appendix I and/or II. Appendix II species may be the
subject of Range State AGREEMENTS (sic, per text of Article 5) between Parties. NonParties, such as the US, may participate in non-binding MOU arrangements, for example, the
2010 MOU on the Conservation of Migratory Sharks, text at http://www.cms.int/species/
sharks/sharks_bkrd.htm.
27
1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, entered into force in 1975. Text at (1972) 11 ILM 1358 and at http://whc
.unesco.org/archive/convention-en.pdf.
28
Per Professor Dan Laffoley, marine vice-chair of the IUCN World Commission on Protected Areas (WCPA).
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with pursuit of proposals for protective measures using existing international
sectoral organisations.
The Sargasso Sea Alliance was only launched in 2010, but it has already
become clear that there are major challenges in seeking to use existing sectoral
organizations to achieve a purpose that is greater than each of their individual
mandates. Although virtually all of the organizations mentioned above may
have specific powers to protect the marine environment—including in
ABNJ—in various ways, it is also clear that despite the injunction of cooperation contained in Article 197 of the 1982 Convention cited above, there
is virtually no co-ordination between these organizations. The culture, processes and epistemic communities of each of these institutions are entirely
different. Conservation arguments raised in one institution carry little, if any,
weight in the others. Because IMO serves the shipping community, ICCAT
the tuna fishing community, and the ISA is a more mainstream UN process,
their respective formal meeting agendas and even schedules are, perhaps
understandably, put together without regard to the activities of other sectoral
bodies.29 It is hoped that the EBSA process initiated by the CBD will provide
a unifying conceptual framework for the description or identification of areas
in ABNJ that are worthy of conservation; history has shown, however, that
each organisation is most strongly wedded to its own frameworks.
David Freestone
Executive Director
Kate Killerlain Morrison
Programme Officer
Sargasso Sea Alliance, Washington, DC, USA
29
For example, the second week of July 2011 saw a meeting of the IMO Marine Environment Protection Committee, the ISA Legal and Technical Commission and Kobe 3—the
third meeting of the various Tuna Commissions.
99
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LOSI Conference Papers, 2012
“Securing the Ocean for the Next Generation”
Papers from the Law of the Sea Institute, UC Berkeley–Korea Institute of
Ocean Science and Technology Conference, held in Seoul, Korea, May 2012
Proceedings edited by Prof. Harry N. Scheiber, LOSI
and Director Moon Sang Kwon, KIOST
Assistant Editor: Emily A. Gardner
The Final Frontier:
The Law of the Sea Convention and Areas
beyond National Jurisdiction
David Freestone
Executive Director of the Sargasso Sea Alliance
Professorial Lecturer and Visiting Fellow, George Washington
University Law School, USA; Editor, International Journal of
Marine and Coastal Law
All rights reserved by the author.
This paper was presented at the tenth in a series of annual international conferences organized
and sponsored or co-sponsored by the Law of the Sea Institute, School of Law, University of
California, Berkeley, USA. The May 2012 conference was jointly sponsored and co-organized
in collaboration with the Korea Institute of Ocean Science and Technology (KIOST, formerly
KORDI), and hosted by KIOST on May 21-24, 2012 in Seoul, Korea. This was the third
LOSI-KIOST collaboration in conferences and publications. 101
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The Final Frontier:
The Law of the Sea Convention and Areas
beyond National Jurisdiction
David Freestone*
In the thirty years since the conclusion of the 1982 UN Law of
the Sea Convention it has become clear that the regime for
Areas beyond National Jurisdiction (ABNJ) upon which the
1982 Convention seems to be premised has not materialised.
There are still serious lacunae in the governance regime for
ANBJ. Despite the growth in intensity of human impacts on
ABNJ through pollution, shipping, fishing and threats from
new human impacts such as ocean energy projects and geoengineering, the governance regime of ABNJ is by no means
comprehensive, and has serious deficiencies in effectiveness as
well as coverage. This paper looks at the limitations of the
current ocean governance regime, identifies important issues
that need to be addressed more specifically in ABNJ – such as
basic principles of ocean governance, environmental impact
assessment for new activities, and the establishment of marine
protected areas. It looks at the evolution of the debates within
the UN in the run up to the Rio +20 United Nations Conference
on Sustainable Development (UNCSD) in June 2012, and, then
in detail at the Sargasso Sea project – which is designed to see
what protection measures can be put in place for a unique
ecosystem in ABNJ using existing international institutions,
without waiting for the UN to take more comprehensive action.
Introduction
On December 10, 2012 it was thirty years since the finalization of the 1982
Law of the Sea Convention (LOSC) in Montego Bay Jamaica after some nine
years of negotiations – the longest in the history of the UN.1 The Convention
*
Executive Director of the Sargasso Sea Alliance; Professorial Lecturer and Visiting Fellow,
George Washington University Law School, USA; Editor, International Journal of Marine
and Coastal Law.
1
See generally David Freestone (ed.), The Law of the Sea Convention at 30: Successes,
Challenges and New Agendas (Martinus Nijhoff, Leiden and Boston, 2013); also published as
2
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is an unprecedented achievement – both for its size (320 Articles and IX
Annexes) and also for the comprehensiveness of the regime that it establishes.
Ambassador Tommy Koh of Singapore, chair of the final session, described it
metaphorically as a “Constitution for the Oceans,” and so it is in many ways,
in its sheer breadth and coverage. However, it took another 12 years before it
entered into force and then only after the negotiation of an innovative
Implementation Agreement for Part XI, which many say amended some of the
basic provisions of that section relating to deep seabed mining.2 A year later,
after six negotiation sessions a second implementing agreement was
concluded – the 1995 UN Fish Stocks Agreement – which addressed what has
been described as an unfinished agenda of the Convention – the regime for
straddling fish stocks and highly migratory fish stocks – and which introduced
some of the new concepts of fisheries management including the
precautionary principle and the ecosystem approach, which had emerged since
the finalization of the 1982 text, and, which were consolidated in the legal
instruments developed for the 1992 UN Conference on Environment and
Development – the Rio de Janiero Earth Summit.3
Now, thirty years on, many are highlighting another lacuna or
unfinished agenda in the convention – the regime covering areas beyond
national jurisdiction – in the UN argot – ABNJ. This paper examines some of
the reasons why governance of ABNJ is being called a lacuna in the
Convention – or at least an implementation gap. It looks at the issues which
have prompted concern about the regime of ABNJ, the debates on this issue
within the UN General Assembly, and then at the work of the Ad Hoc
Working Group that it established to study particular issues of this regime. It
then looks at a unique experiment in addressing one facet of this issue - the
ability of the international community to establish marine protected areas in
ABNJ. The Sargasso Sea project – led by the Government of Bermuda - seeks
to use existing international organizations with established sectoral
competence to put protection measures in place for the unique open ocean
ecosystem of the Sargasso Sea.
Nearly 50% of the earth surface is covered by marine areas beyond
national jurisdiction. That is, areas that are beyond the limits of the Exclusive
Economic Zones recognized by the 1982 LOSC, and of the continental shelf
which the Convention recognized may extend beyond 200 nautical miles to its
a Special Issue in (2012) 27 International Journal of Marine and Coastal Law [IJMCL] pp.
675-881.
2
See Dolliver Nelson, “The New Deep Sea-Bed Mining Regime” (1995) 10 IJMCL 189, who
says at 193 “the Agreement can therefore be considered a Protocol of Amendment.
3
See David Freestone, “The Road from Rio: International Environmental Law after the Earth
Summit" (1994) 6 Journal of Environmental Law, pp. 193-218. And on the incorporation of
new principles in the 1995 UN Fish Stocks Agreement see David Freestone and Zen Makuch,
“The New International Environmental Law of Fisheries: The 1995 Straddling Stocks
Agreement,” Yearbook of International Environmental Law, Volume 7, Oxford University
Press, 1997, pp. 3-49.
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outer geomorphological limits.4
Since the finalization of the 1982
Convention, human activities in the ocean and in ABNJ have burgeoned, as
have their impacts.5 These impacts are not necessarily the result of new
activities but of the unprecedented increase of existing activities such as
maritime transport, the laying of submarine cables (for internet connections)
and, of course, fishing – where effort has consistently increased to compensate
for falling catch levels and has pushed into deeper, more distant and more
inhospitable waters. This increased effort is also paralleled with the continued
incidence of “illegal, unregulated and unreported” (IUU) fishing. Each of
these three practices is of course a distinct and separate problem. Taken as
whole, the significance of IUU fishing is perhaps as much as one third of all
the fish caught globally. This means they are caught without regard to the
fisheries management systems, however flawed they may be, that we have in
place. 6 At the same time there are proposals for more potentially harmful
activities, such as ocean fertilisation to combat climate change.7
This increase in actual activities and impacts has not been matched by
an increase in governance activity. IUU fishing persists – rendering effective
fisheries management virtually impossible. The continued use of flags of
convenience even for fishing vessels - has undermined attempts to exercise
effective flag state controls. Despite development in international law rules on
jurisdiction – including the extension of port state jurisdiction8 – effective
policing of ABNJ is still problematic.
The ABNJ Regime envisaged by Part XII of the 1982 Convention
The 1982 Convention does not itself leave the legal regime for the high seas as
an unfinished agenda. Although Article 87 of the 1982 LOSC talks about
“freedom of the high seas,” it also makes the point reiterated in detail in other
provisions that this freedom may only be exercised “under the conditions laid
4
Art. 76, LOSC
B. Halpern et al., “A Global Map of Human Impact on Marine Ecosystems.” (2008) Vol.
319, no. 5865, Science, pp. 948-952 (15 February 2008). E. Ramirez-Llodra et al, “Man and
the Last Great Wilderness: Human Impacts on the Deep Sea” (2011) 6(7) PLoS one e22588.
6
see M.A. Palma, M. Tsamenyi and W.R. Edeson, Promoting Sustainable Fisheries: The
International Legal and Policy Framework to Combat Illegal, Unreported and Unregulated
Fishing (Martinus Nijhoff, 2010).
7
See e.g., P. Verlaan, ‘Geo-engineering, the Law of the Sea, and Climate Change’ (2009)
Carbon and Climate Law Review 446–458. See also R. Rayfuse, M. Lawrence, K. Gjerde,
‘Ocean Fertilization and Climate Change: The Need to Regulate Emerging High Seas Uses’
(2008) 23(2) IJMCL 297–326; D. Freestone, R. Rayfuse, “Ocean Iron Fertilization and
International Law” (2008) 364 Marine Ecology Progress Series 227–233. Also P. Verlaan,
“Current Legal Developments: London Convention and London Protocol” (2011) 26 IJMCL
185–194, and the same author, “Marine Scientific Research: its potential contribution to
achieving responsible high seas governance” (2012) 27 IJMCL pp. 805-812.
8
2009, Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported
and Unregulated Fishing. (Not yet in force). For text see:
http://www.fao.org/docrep/013/i1644t/i1644t00.pdf
5
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down by this Convention and by other rules of international law.” In order
words the six basic high seas freedoms are all set about by important
conditions.9
Although the exercise of the freedoms are generally subject to these
important general conditions, the only specific additional restrictions that can
be made to the exercise of these rights are by international agreement binding
only on states which are party to them. Of course, the 1982 Convention does
oblige all states to "protect and preserve the marine environment”10 including
“rare or fragile ecosystems as well as the habitat of depleted, threatened or
endangered species and other forms of marine life.”11 It also obliges states by
Article 197 to “cooperate on a global basis and, as appropriate, on a regional
basis, directly or through competent international organizations, in formulating
and elaborating international rules, standards and recommended practices and
procedures consistent with this Convention, for the protection and preservation
of the marine environment, taking into account characteristic regional
features.”
The LOSC itself establishes an international regime for exploration
and exploitation of seabed minerals, in “the Area,” overseen by the
International Seabed Authority (ISA), but a range of other global and regional
treaties regulate a range of specific activities which take place in ABNJ, such
as fishing, wildlife protection and navigation. But of course these detailed
sectoral treaties are only binding on their parties. So, the problem of proper
governance in ABNJ is exacerbated by the patchwork of treaties that exists. A
review of existing organizations with jurisdiction over activities in ABNJ
shows that there are serious gaps in coverage.12 In relation to sectoral
activities these gaps are both functional as well as geographic. This is not
necessarily a defect in the LOSC itself – it is a defect in implementation.
In fact the lacunae in implementation are vividly shown by the
provisions relating to the monitoring and reporting of potentially polluting
activities. Their provisions, which are quite rigorous, are based entirely on
good faith implementation by state parties, and provide as follows:
9
Navigation; overflight; freedom to lay submarine cables and pipelines; to construct artificial
islands and other installations; freedom of fishing and of scientific research.
10
Article 192 LOSC.
11
Article 194(5) LOSC.
12
K. Gjerde, H. Dotinga, S. Hart, E.J. Molenaar, R. Rayfuse, R. Warner, Regulatory and
Governance Gaps in the International Regime for the Conservation and Sustainable Use of
Marine Biodiversity in Areas beyond National Jurisdiction (IUCN, Gland, Switzerland,
(2008)(available at http://cmsdata.iucn.org/downloads/iucn_marine_paper_1_2.pdf). See also,
David Freestone, “Problems of High Seas Governance,” pp 99-130 in D. Vidas and P.J. Schei
(eds.) The World Ocean in Globalisation: Challenges and Responses (Martinus Nijhoff
Publishers, Leiden, 2011), and in the same volume pp. 221–232, K. Gjerde, “High Seas
Fisheries Governance: Prospects and Challenges in the 21st Century.” For an excellent wider
discussion of the ABNJ legal regime see Robin Warner Protecting the Oceans beyond
National Jurisdiction: Strengthening the International Law Framework (Martinus Nijhoff
Publishers, 2009).
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Art. 204. States shall keep under surveillance the effects of any
activities which they permit or in which they engage in order to
determine whether these activities are likely to pollute the
marine environment.
Art. 205. States shall publish reports …or provide such reports
to the competent international organizations, [to be] available
to all States.
Art. 206. When States have reasonable grounds for believing
that planned activities under their jurisdiction or control may
cause substantial pollution of or significant and harmful
changes to the marine environment, they shall, as far as
practicable, assess the potential effects of such activities on the
marine environment and shall communicate reports of the
results of such assessments...
Although international permitting of activities does take place on the basis of
prior environmental impact assessment (EIAs) in some areas of the ocean –
such as the Southern Ocean under the Madrid Protocol, this is very much the
exception rather than the rule. 13 Similarly, where regional conventional
regimes do envisage the establishment of marine protected areas in high seas
areas there has been some progress – as in the OSPAR region,14 and the
Mediterranean.15 In the overwhelming majority of ocean areas however there
is no such framework.
This has led to discussions of this issue within the UN General
Assembly, where proposals for a process to develop a new legal framework
for high seas have been discussed over the last decade or so. We will consider
this development before addressing the question of whether it is possible to
protect Areas in ABNJ within the current system.
Governance in ABNJ: the Debate with the UN General Assembly
13
See Robin Warner and Simon Marsden, Transboundary Environmental Governance:
Inland, Coastal and Marine Perspectives (Ashgate, 2012).
14
The 1992 Convention for the Protection of the Marine Environment of the North-East
Atlantic (the "OSPAR Convention") was formed from the merger of the Commissions of the
1972 Oslo Convention and the 1974 Bonn Convention. It entered in force in March 1998.
Text at (1993) 32 ILM 1072 and at
http://www.ospar.org/html_documents/ospar/html/ospar_convention_e_updated_text_2007.pd
f
15
Convention for the Protection of the Mediterranean Sea against Pollution, 16 February
1976, 1102 United Nations Treaty Series 27, amended in 1995 and renamed the Convention
for the Protection of the Marine Environment and Coastal Region of the Mediterranean
(hereinafter Barcelona Convention); Protocol concerning Mediterranean Specially Protected
Areas and Biodiversity, 10 June 1995, 2102 United Nations Treaty Series 203, 161.
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Governance in ABNJ has been on the agenda of the UN General
Assembly for nearly a decade. In 2004, in order to address the full range of
issues particularly related to the conservation of biodiversity in areas beyond
national jurisdiction, the UN General Assembly agreed on the
recommendation of the UN Informal Consultative Process on the Oceans and
the Law of the Sea (UNICPOLOS) to establish an Ad Hoc Open-ended
Informal Working Group to study issues relating to the conservation and
sustainable use of marine biological diversity beyond areas of national
jurisdiction (known as the BBNJ process).16 This Working Group held its first
meeting in 2006; a second ran from 28 April to 2 May 2008, a third meeting
was held in January 2010, a fourth in May 2011, and a fifth in May 2012.
Several important proposals have been discussed at these meetings including a
European Union proposal for a new implementing agreement to develop a
more specific framework to address conservation and sustainable use of
marine biodiversity beyond national jurisdiction. Issues highlighted in the
discussions have included the absence of a global instrument regulating the
establishment and monitoring of Marine Protected Areas (MPAs) on the High
Seas (even though MPAs have proven to be extremely effective in maintaining
biodiversity in coastal contexts), the absence of comprehensive EIAs for new
activities in ABNJ, as well as the lack of co-ordination between those
international organizations that are charged with regulating specific sectoral
activities. 17
Other states have indicated that improved implementation should be
the first priority, but have not all provided their views on what might be done
to enhance implementation with respect to biodiversity conservation in
general. Unfortunately the lively debates on improved governance have been
overshadowed by controversy over the future regime for exploitation of
marine genetic resources beyond national jurisdiction.18 The G77 and China
have argued that the “common heritage of mankind” concept that the LOSC
16
For details of the meeting to date see
http://www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm
17
It has also been suggested that the international community should reaffirm some of the
basic principles that have been agreed in a wide range of existing instruments, including the
1982 Convention, in relation to national activities in ABNJ At the IUCN 4th World
Conservation Congress, in Barcelona on 7 October 2008, IUCN President Valli Moosa of
South Africa chaired a plenary session presenting the IUCN “Ten Principles of High Seas
Governance.” For a more detailed exposition of these principles and their legal basis see
David Freestone, “Principles Applicable to Modern Oceans Governance,” (2008) 23 IJMCL
385-391 and David Freestone, “Modern Principles of High Seas Governance: The Legal
Underpinnings,” (2009) 39 International Environmental Policy and Law, 44–49.
18
For an excellent assessment of the issues and potential of bio-prospecting see, D. Leary, M.
Vierros, G. Hamon, S. Arico and C. Monagle, “Marine Genetic Resources: A Review of the
Scientific and Commercial Interest” (2009) 33 Marine Policy, 183–194. A comprehensive
analysis of various legal issues involved is found in Part IV, “Marine Genetic Resources and
Bio-prospecting,” in D. Vidas (ed.), Law, Technology and Science for Oceans in
Globalisation, pp. 309–419.
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applies to deep seabed minerals,19 should also apply to the living resources of
the deep ocean floor, many of which may have important industrial and
pharmaceutical potential. They argue that if the drafters of the 1982
Convention had been aware of these resources – rather than simply being
aware of the famous “manganese nodules” – then they would doubtlessly have
included these living resources within the deep sea bed regime.
The result has been something of a stalemate in the discussions at the
BBNJ Working Group, but at the May 2011 Meeting there was something of a
breakthrough. It was agreed that the issues of protection of biodiversity
through marine spatial planning measures in ABNJ (e.g., EIAs and
establishment of MPAs) should be linked with issues relating to access and
benefit sharing of marine genetic resources, and that:
A process be initiated, by the UNGA, with a view to ensure that
the legal framework for the conservation and sustainable use of
marine biodiversity in areas beyond national jurisdiction
effectively addresses those issues by identifying gaps and ways
forward, including through the implementation of existing
instruments and the possible development of a multilateral
agreement under UNCLOS; This process would address the
conservation and sustainable use of marine biodiversity in areas
beyond national jurisdiction, in particular, together and as a
whole, marine genetic resources, including questions on the
sharing of benefits, measures such as area-based management
tools, including marine protected areas, and environmental
impact assessments, capacity-building and the transfer of
marine technology. 20
This was discussed further at the 2012 BBNJ Working Group meeting,21 and,
as expected was also discussed at the UN Conference on Sustainable
Development (Rio plus 20)) in June 2012. The Outcome Document of the Rio
19
See Article 138 LOSC: “The Area and its resources are the common heritage of mankind.”
Article 133 LOSC further provides that “resources” means “all solid liquid or gaseous mineral
resources in situ in the Area at or beneath the seabed, including polymetallic nodules.”
20
Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues
relating to the conservation and sustainable use of marine biological diversity beyond areas of
national jurisdiction and Co-Chairs’ summary of discussions UN Doc A/66/119 (30 June
2011). Available on line at
http://daccess-ddsny.un.org/doc/UNDOC/GEN/N11/397/64/PDF/N1139764.pdf?OpenElement
21
New York, 7-11 May 2012. For Agenda see UN Doc A/AC.276/L.8. (3 April 2012). On
line at:
http://daccess-ddsny.un.org/doc/UNDOC/LTD/N12/282/68/PDF/N1228268.pdf?OpenElement
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Conference, entitled “The Future We Want,”22 contained the following
commitment:
162. We recognize the importance of the conservation and
sustainable use of marine biodiversity beyond areas of national
jurisdiction. We note the ongoing work under the General
Assembly of an ad hoc open-ended informal working group to
study issues relating to the conservation and sustainable use of
marine biological diversity beyond areas of national
jurisdiction. Building on the work of the ad hoc working group
and before the end of the sixty-ninth session of the General
Assembly we commit to address, on an urgent basis, the issue
of the conservation and sustainable use of marine biological
diversity of areas beyond national jurisdiction, including by
taking a decision on the development of an international
instrument under the United Nations Convention on the Law of
the Sea.
The Sargasso Sea Project
These processes, even if successful, are likely to take a number of years. In
order to secure more rapid protection, and to provide an example of what can
be achieved through working within the existing system, the Sargasso Sea
project is designed to attempt to use existing treaty regimes and processes in
order to seek protection for a unique ecosystem which is primarily located in
areas beyond national jurisdiction.
The Sargasso Sea is a 2 million square nautical mile ecosystem in the
North Atlantic. Named for the algae that accumulates in the North Atlantic
Subtropical Gyre and which forms into large mats or windrows, the Sargasso
Sea is the world’s only sea without coasts; only the tiny islands of Bermuda
have direct coastal frontage. The Sargasso Sea is bounded on all sides by the
clockwise flow of major ocean currents: The Gulf Stream and North Atlantic
Drift form the western and northern boundaries, the Canary Current forms a
more diffuse eastern boundary, and the North Equatorial Current and Antilles
Current form the southern boundary. Just as the currents vary, the boundaries
of the Sargasso Sea also vary. The Sargassum is home to a range of endemic
species, and, the Sargasso Sea is a major feeding and migration route for a
number of threatened and endangered species including sea turtles, humpback
and sperm whales, as well as for commercially important tunas and billfish. It
is the only place in the world where the catadromous American eel (Anguilla
22
UN Doc A/RES/66/288
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rostrata), and European eel (Anguilla anguilla) spawn.23 Bermuda, at the
centre of the Sargasso Sea, is an overseas territory of the United Kingdom. It
claims a 200-nautical-mile EEZ of some 173,891 square miles. Beyond the
Bermudian EEZ, however, the remainder of the Sargasso Sea is largely an
Area beyond National Jurisdiction (ABNJ).24
The Sargasso Sea Alliance was formed in 2010 under the leadership of
the Government of Bermuda. Its general strategy is to identify the most
important environmental threats and then to address them on an activity or
organisation-specific basis. The major threats to the Sargasso Sea and the
relevant organisations for their management include: navigation and vessel
source pollution threats through the International Maritime Organisation
(IMO); fishing threats through International Convention for the Conservation
of Atlantic Tunas (ICCAT) and perhaps the Northwest Atlantic Fisheries
Management Organization (NAFO); and, seabed mining threats through the
International Seabed Authority (ISA). The importance of developing a high
quality peer reviewed science case is therefore crucial to being able to make
strong arguments for a range of different protection measures in these various
forums.
Protecting the Sargasso Sea
The Sargasso Sea Alliance is trying to move forward with a possible MPA in
ABNJ using the existing sectoral institutions.25 In other words, accepting that
governance of ABNJ is fragmented, what can be achieved in terms of
protection for such areas using the existing organisational structures? Some
limited success in establishing ABNJ MPAs in other regions has been
achieved, notably in the North-East Atlantic OSPAR region,26 and, in the
South Orkney area on the Southern Ocean using the Convention for the
23
The European eel is protected by EC Regulations. Council Regulation (EC) No. 1100/2007
of 18 September 2007 establishes measures for the recovery of the stock of European eel. OJ
2007 L248/17.
24
Depending on what is defined to be the geographical extent of the Sargasso Sea, it can be
taken to extend into the EEZs of the United States to the East and the Northern Antillean
islands to the south. The Alliance commissioned a new map based on criteria such as ocean
current and eddy occurrence, remote sensing of Sargassum weed, and historical mapping,
which excludes national EEZs. It calls this area the Sargasso Sea Alliance Study Area. The
map can be viewed at http://www.sargassoalliance.org/where-is-the-sargasso-sea.
25
See further David Freestone and Kate Killerlain Morrison, “The Sargasso Sea Alliance:
Seeking to Protect the Sargasso Sea.” (2012) 27 IJMCL pp. 647-655. The following section
draws on that paper.
26
The 1992 Convention for the Protection of the Marine Environment of the North-East
Atlantic (the "OSPAR Convention") was formed from the merger of the Commissions of the
1972 Oslo Convention and the 1974 Bonn Convention. It entered in force in March 1998 Text
at (1993) 32 ILM 1072 and at
http://www.ospar.org/html_documents/ospar/html/ospar_convention_e_updated_text_2007.pd
f
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Conservation of Antarctic Marine Living Resources (CCAMLR).27 Both
those regions have developed regional processes for marine conservation
(including in ABNJ) which envisage the establishment of MPAs. However,
despite the fact that the Sargasso Sea lies between Europe and the Americas,
there is no regional marine environmental treaty expressly covering the
Sargasso Sea Region. Nor is there a regional fisheries treaty regime applicable
to the whole Sargasso Sea area for non “tuna and tuna-like” species.28 This
again distinguishes it from the North East Atlantic which has the North-East
Atlantic Fisheries Commission (NEAFC),29 to correspond with OSPAR, or the
Southern Ocean, where CCAMLR performs both roles, or the Mediterranean
which has the General Fisheries Council for the Mediterranean.30
The Sargasso Sea Alliance, led by the Government of Bermuda, is seeking to
break new ground, by seeking to establish a marine protected area in the high
seas areas of the Sargasso Sea using the existing legal framework and any
existing sectoral bodies that may be able to assist.31 The Alliance has four
basic aims:




To build an international partnership to secure global recognition of the
importance and ecological significance of the Sargasso Sea, the threats
that it faces, and the precautionary management it needs;
To use existing regional, sectoral and international organizations to
secure a range of protective measures for the Sargasso Sea;
To establish appropriate management for the Sargasso Sea; and
To use the current process as an example of what can and cannot be
delivered through existing frameworks in marine ABNJ to inform the
global debate and provide a model for protection of other high seas
regions.
The relevant sectoral organisations
In the Sargasso Sea, the only international bodies that have sectoral
jurisdiction are the International Maritime Organisation (IMO) in relation to
27
The 1980 Convention for the Conservation of Antarctic Marine Living Resources (entered
into force 1982) is part of the Antarctic Treaty System. Text at (1980) 19 ILM 837 and at
http://www.ccamlr.org/pu/e/e_pubs/bd/pt1.pdf
28
As opposed to a regime for tuna and tuna-like species – see discussion of ICCAT below.
29
The 1980 Convention on Future Multilateral Co-Operation in North-East Atlantic Fisheries,
entered in force in 1982. For text as amended see http://www.neafc.org/system/files/londondeclarlation_and_new_convention.pdf
30
The Mediterranean Sea has an environmental protection treaty in the 1976 Barcelona
Convention, as amended, see above, note 14.
31
The secretariat of the Alliance is located in the Washington DC Office of IUCN. The
Alliance has a small Executive Committee and a larger Steering Committee. It is supported by
private donors and foundations. For details see www.sargassoalliance.org.
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shipping and marine pollution issues,32 the International Convention for the
Conservation of Atlantic Tunas (ICCAT), 33 which regulates fisheries for tuna
and tuna-like species in the north and south Atlantic, and the International
Seabed Authority (ISA) which has jurisdiction over seabed mineral resource
exploration and exploitation.34 In addition, the northern edges of the Sargasso
Sea and of the Bermudian EEZ do extend north of 35°N into the geographical
area of competence of the North West Atlantic Fishing Organisation
(NAFO).35 However, the majority of the high seas areas of the Sargasso Sea
are neither covered by a regional environmental agreement nor by a regional
fisheries management organization. 36
Also, the FAO Advisory Body, the Western Central Atlantic Fishery
Commission (WECAFC), which includes the Sargasso Sea by geography, has
recently shown potential for conservation-minded recommendations in their
February 2012 meeting which included a resolution on strengthening the
implementation of international fisheries instruments. WECAFC noted the
“need to preserve biodiversity, minimize the risks of long-term or irreversible
effects of fishing operations, avoid adverse impacts on the marine
environment, maintain the integrity of marine ecosystems including deep-sea
vulnerable marine ecosystems and effectively apply the precautionary and
ecosystem approaches to fisheries management.” Furthermore, they “agree(d)
to take actions and measures to strengthen implementation of existing
international fisheries instruments and those that may be developed in the
future…”37
There are also a number of other international conventions which are
of potential relevance. At the tenth session of the Conference of Parties to the
Convention on Biological Diversity (CBD) in Nagoya, Japan the parties
32
In 1948 an international conference in Geneva adopted a convention formally establishing
IMO (the original name was the Inter-Governmental Maritime Consultative Organization, or
IMCO, but the name was changed in 1982 to IMO). It currently has 170 Member States and
three Associate Members. See http://www.imo.org/About/HistoryOfIMO/Pages/Default.aspx
33
The International Convention for the Conservation of Atlantic Tunas was signed in Rio de
Janiero Brazil in 1966. It entered into force in 1969. Currently has 48 parties. Further details at
http://www.iccat.int/en/contracting.htm
34
Created by Part XI, Section 4 of the 1982 LOSC. Articles 156-158.
35
NAFO was founded in 1979 as a successor to ICNAF (International Commission of the
Northwest Atlantic Fisheries) (1949-1978). The 1979 Convention on Future Multilateral
Cooperation in the Northwest Atlantic Fisheries applies to most fishery resources of the
Northwest Atlantic except salmon, tunas/marlins, whales, and sedentary species (e.g.
shellfish). For text see
http://www.nafo.int/about/overview/governance/convention/convention.pdf
36
This is in distinct contrast with the ABNJ areas of the North-east Atlantic which are
included within the area of competence of both a regional environmental agreement, in the
shape of the 1992 OSPAR Convention, and a corresponding regional fisheries management
body – the North East Atlantic Fisheries Commission (NEAFC).
37
Resolution on Strengthening the Implementation of International Fisheries InstrumentsWECAFC 14 Session, Panama City, 6-9 February, 2012, (WECAFC/XIV/2012/7. Available
at: http://www.fao.org/docrep/meeting/024/am121e.pdf
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decided to initiate a science driven process to describe ecologically and
biologically significant marine areas (EBSAs). 38 To that end a series of
workshops have been organised by the CBD Secretariat in association with
other organisations to identify such areas.39 At a workshop in Brazil in March
2012, the Government of Bermuda put forward a proposal for the
“Description” of the Sargasso Sea as an EBSA, which was recommended by
the Recife Workshop and then approved by the 16th Meeting of the CBD
Subsidiary Body on Scientific, Technical and Technological Advice
(SBSTTA) in April/May 2012 and was considered by the 11th Meeting of the
CBD Conference of the Parties (COP) in Hyderabad in October 2012.
Although these “described” areas were not specifically endorsed by the CBD
COP, they were sent to the UN and other appropriate international
organisations, and, the Sargasso Sea, along with other EBSAs, was added to
the EBSA repository maintained by the CBD Secretariat.40 “Description” as
an EBSA has no legal significance but it is intended that the CBD process will
be taken into account by other international processes charged with managing
and conserving ocean resources. For example, while the CBD does not have
competence to designate MPAs, information shared through the EBSA
identification process may help strengthen the scientific basis for protective
measures at other sectoral entities.
38
“[The] primary objective of this process is to facilitate the description of ecologically or
biologically significant marine areas through application of scientific criteria in annex I of
decision IX/20 as well as other relevant compatible and complementary nationally and inter
governmentally agreed scientific criteria, as well as the scientific guidance on the
identification of marine areas beyond national jurisdiction, which meet the scientific criteria in
annex I to CBD Decision IX/20.” CBD Decision X/29, Paragraph 36.
39
The Workshops held to date include : Joint CBD/NEAFC/OSPAR Scientific Workshop on
the Identification of Ecologically or Biologically Significant Marine Areas, EBSAs in the
North-East Atlantic-Hyeres, France 8-9 September 2011; Western South Pacific Regional
Workshop to Facilitate the Description of Ecologically or Biologically Significant Marine
Areas (22–25 November 2011, Nadi, Fiji); Wider Caribbean and Western Mid-Atlantic
Regional Workshop to Facilitate the Description of Ecologically or Biologically Significant
Marine Areas (28 February–2 March 2012, Recife, Brazil). Further details see
http://www.cbd.int/meetings/
40
The CBD COP Decision XI/17, welcomed the scientific and technical evaluation of
information contained in the reports of the regional workshops, including the Wider Caribbean
and Western Mid-Atlantic Regional Workshop, and requested the Executive Secretary to
include the summary reports on the description of areas that meet the criteria for ecologically
or biologically significant marine areas, prepared by the Subsidiary Body on Scientific,
Technical and Technological Advice at its sixteenth meeting in the repository, as referred to in
decisions X/29 and XI/17, and, for the purpose set out in decision X/29, to submit them to the
United Nations General Assembly and particularly its Ad Hoc Open-ended Informal Working
Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological
Diversity Beyond Areas of National Jurisdiction, as well as to submit them to Parties, other
Governments and relevant international organizations.
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The Convention on the Conservation of Migratory Species (CMS) may
also be of relevance.41 A number of migratory species travel through the
Sargasso Sea – some of which – like the American and European eel are not
protected in international waters. Under the CMS, States can enter into Range
State Agreements and/or Memoranda of Understanding to protect species
within their full habitat range and can serve as a strong example of how
international collaboration can improve marine protection for a shared species
across jurisdictions, and even in ABNJ.
The 1972 Convention Concerning the Protection of the World Cultural
and Natural Heritage envisages the inscription in the World Heritage List,
sites of “outstanding universal value” that are part of the world’s “natural” and
“cultural’ heritage, defined in Article 1 and 2 respectively. 42 Nothing in the
texts of Article 1 and 2 suggests that they could not be in areas beyond
national jurisdiction, however the procedure for nomination seems to restrict it
to sites which are “situated on the territory” of any of its Parties (Articles 3
and 4) or “in its territory” (Article 11). It has consequently been remarked that
a World Heritage List that excludes sites in ABNJ (which covers nearly half
the globe) should perhaps be called “Half the World Heritage”43 The issue was
raised in 2011 after an audit of the “Global Strategy for a credible, balanced
and representative World Heritage List.” 44 Consequent to this, the Convention
Secretariat began, in collaboration with IUCN, to look at a scientifically sound
method through which the concept of Outstanding Universal Value of the
1972 World Heritage Convention might be applied to the high seas.45 The
Sargasso Sea would clearly be a poster child for such a venture.
In addition to pursuing the adoption of protection measures in the
organisations described above, the Alliance is also planning to convene an
intergovernmental meeting in 2013 to encourage states and international
organisations to collaborate voluntarily to protect the Sargasso Sea, through
the negotiation and acceptance of an agreed political declaration on
41
The Bonn Convention on Migratory Species was concluded in Bonn on 23 June 1979, and
came into force 1983. For text see (1980) 19 ILM 15 and at
http://www.cms.int/documents/convtxt/cms_convtxt.htm
Migratory species may be listed under Appendix I and/or II. Appendix II species may be the
subject of Range State AGREEMENTS (sic, per text of Article 5) between Parties. NonParties, such as the US may participate in non-binding MOU arrangements, for example, the
2010 MOU on the Conservation of Migratory Sharks, text at
http://www.cms.int/species/sharks/sharks_bkrd.htm
42
1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural
Heritage, in force 1975. Text at (1972) 11 ILM 1358 and at
http://whc.unesco.org/archive/convention-en.pdf.
43
Per Professor Dan Laffoley, marine vice-chair of the IUCN World Commission on
Protected Areas (WCPA).
44
Referenced at http://whc.unesco.org/en/marine-programme
45
Note that, as an analogy, the 1973 Convention on International Trade in Endangered
Species of Wild Fauna and Flora has felt able to address trade in ABNJ based on the phrase in
Article 1(e)—“in the marine environment not under the jurisdiction of any State.” I am
grateful to the Editor for this useful suggestion.
14
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collaborative action to conserve the Sargasso Sea. Such a Hamilton
Declaration (Hamilton is the capital city of Bermuda) is envisaged to include
key Atlantic Rim countries and states from the Caribbean as well as the range
states of key species such as the European eel. It is an on-going diplomatic
effort in parallel to the pursuit of proposals for protected measures using
existing international sectoral organisations.
The Sargasso Sea Alliance was only launched in 2010, but it has
already become clear that there are major challenges in seeking to use existing
sectoral organizations to achieve a purpose that is greater than each of their
individual mandates. Although virtually all of the organizations mentioned
above may have specific powers to protect the marine environment –
including in ABNJ – in various ways, it is clear that despite the injunction of
Article 197 of the 1982 Convention cited above - there is virtually no coordination between these organizations. The culture, processes and epistemic
communities of each of these institutions are entirely different. Conservation
arguments raised in one institution carry little, if any, weight in the others.
Because IMO serves the shipping community, ICCAT the tuna fishing
community, and the ISA is a more mainstream UN process, their respective
formal meeting agendas and even schedules are, perhaps understandably, put
together without regard to the activities of other sectoral bodies.46
In this sense, the overall objective of the obligations that the Law of
the Sea Convention imposes on states by Article 197 to collaborate through
international and regional organizations in marine environmental protection
has not really been achieved. Many hope that the process initiated by the CBD
to use scientific processes to identify Ecologically or Biologically Significant
marine Areas (EBSAs) will provide a unifying conceptual framework for the
description or identification of areas in ABNJ that are worthy of conservation.
It remains still to be seen, however, whether existing institutions will be
willing or indeed able to respond to this challenge in the way that Article 197
of the 1982 Convention appears to envisage. If they do not, then it is indeed an
unfinished agenda. Scholars have pointed out that that there are serious gaps
in the regulatory framework applicable to ABNJ as well as gaps in
implementation and enforcement. It has been suggested that the elements of
lawlessness are reminiscent of the 19th century frontier areas of the “wild
west” in the USA; governance of ABNJ is also perhaps the last, the final,
major issue still to remain unresolved under the regime of the 1982 Law of the
Sea Convention.
46
For example, the second week of July 2011 saw a meeting of the IMO Marine Environment
Protection Committee, the ISA Legal and Technical Commission and Kobe 3 – the third
meeting of the various Tuna Commissions.
15
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THE INTERNATIONAL JOURNAL OF
MARINE
AND COASTAL
LAW
brill.com/estu
Current Legal Developments
The Sargasso Sea
∵
The Signing of the Hamilton Declaration on Collaboration for the
Conservation of the Sargasso Sea: A New Paradigm for High Seas
Conservation?
On 11 March 2014, in an historic event in Hamilton, Bermuda, the representatives from the governments of eleven countries and territories met to reaffirm
their support for an initiative, led by the Government of Bermuda, to collaborate for the conservation of the Sargasso Sea ecosystem for the benefit of present and future generations.
The centerpiece of the meeting was the signing of the “Hamilton Declaration
on Collaboration for the Conservation of the Sargasso Sea.”1 The governments
of the Azores, Bermuda, Monaco, the United Kingdom and the United States
signed the Declaration. Representatives of the governments of the Bahamas, the
British Virgin Islands, the Netherlands, South Africa, Sweden and the Turks and
Caicos Islands spoke in support, together with observers from the Secretariats
of five international organizations, the Oslo and Paris Commission (OSPAR)
from the neighboring North-east Atlantic region, the International Seabed
Authority, the Inter-American Convention for the Conservation of Atlantic Sea
Turtles, the Convention on Migratory Species and the International Union for
Conservation of Nature (IUCN).
The Hamilton Declaration is the result of a two-year negotiation between
interested governments that are either located in the broader Sargasso Sea
area, have an interest in species within it or more generally in high seas conservation. It is historic in that it is the first non-binding instrument designed
1 Reproduced below as Appendix 1 to this contribution on pp. 354–360; also at: http://www.
sargassoalliance.org/hamilton-declaration.
© koninklijke brill nv, leiden, ���4 | doi 10.1163/15718085-12341320
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to provide a framework for intergovernmental collaboration to promote measures, through existing international organizations, to minimize the adverse
effects of human activities in an ecosystem that is primarily in areas beyond
national jurisdiction (ABNJ). It also envisages the establishment of a Sargasso
Sea Commission, to “exercise a stewardship role for the Sargasso Sea and keep
its health, productivity and resilience under continual review.”2
In an earlier contribution in this journal,3 the current authors explained
that the Sargasso Sea Alliance (SSA) was founded in 2010 and led by the
Government of Bermuda.4 The SSA aimed to build an international partnership to secure recognition of the ecological significance of the Sargasso Sea
and the threats that it faces, as well as to use existing regional, sectoral and
international organizations to secure a range of protective measures for all or
parts of the Sargasso Sea to address those threats.5 These objectives have now
been assumed de facto by the Signatories to the Hamilton Declaration.
Unlike the Mediterranean, the Northeast Atlantic or the Southern Ocean,
where previous efforts to protect high seas areas have been located, the Sargasso
Sea lacks both a regional oceans organization to promote conservation and
a regional fisheries management organization (RFMO). So the key relevant
international organizations that have regulatory authority for the Sargasso Sea
area beyond national jurisdiction are the International Maritime Organization
(IMO)6 for maritime traffic and vessel discharges and the International Seabed
Authority7 for seabed exploration and mining. In the fisheries sector the regulatory area of North-West Atlantic Fisheries Organization (NAFO) does extend
as far south as 35°N into the northern-most part of the Bermuda Exclusive
Economic Zone (EEZ)8 and the International Commission for the Conservation
2 Paragraph 6 and Annex II of the Declaration, op. cit. (n. 1).
3 D. Freestone and K.K. Morrison, “The Sargasso Sea Alliance: Seeking to Protect the Sargasso
Sea” (2012) 27 International Journal of Marine and Coastal Law 647–655.
4The SSA Secretariat is based in the Washington DC office of the International Union for
Conservation of Nature (IUCN).
5 See http://www.sargassoalliance.org/about-the-alliance.
6 In 1948, an international conference in Geneva adopted a convention formally establishing
the IMO (the original name was the Inter-Governmental Maritime Consultative Organization,
or IMCO, but the name was changed in 1982 to IMO). It currently has 170 Member States
and three Associate Members; see http://www.imo.org/About/HistoryOfIMO/Pages/Default.
aspx.
7 Established under Part XI of the 1982 UN Convention on the Law of the Sea, (1982) 21 ILM 1261.
8 1979 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries
(NAFO), which applies to most fishery resources of the Northwest Atlantic except salmon,
tunas/marlins, and sedentary species (e.g., shellfish). For text see http://www.nafo.int/about/
overview/governance/convention/convention.pdf.
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of Atlantic Tunas (ICCAT) has regulatory authority over the whole area, but
only over fisheries of “tuna and tuna-like species.”9
Achievements of the Sargasso Sea Alliance to Date
The Hamilton Meeting was the culmination of some three years’ work by the
SSA, in bringing the importance of the Sargasso Sea to the attention of the international community and in working to develop specific protection measures
for consideration by relevant bodies. In early 2012, after extensive research and
having commissioned a number of studies,10 the SSA published The Protection
and Management of the Sargasso Sea: The Golden Floating Rainforest of the
Atlantic Ocean. Summary Science and Supporting Evidence Case.11
This report was the basis for a submission in March 2012 by the Government
of Bermuda on behalf of the SSA at a Convention on Biological Diversity (CBD)
Secretariat workshop to consider the description of Ecologically or Biologically
Significant Areas (EBSAs) in the mid-Atlantic region.12 The case for the Sargasso
Sea as an EBSA was discussed and adopted by the scientists at the workshop,13
then forwarded as part of the Workshop Report to the CBD’s Subsidiary Body
on Scientific, Technical and Technological Advice (SBSTTA) meeting in April
2012 and ultimately the Conference of Parties (COP) in October 2012, where it
was officially described as an EBSA.14
“Description” as an EBSA has no legal significance, but it is intended that
the CBD process will be taken into account by other international processes
charged with managing and conserving ocean resources.15 The SSA was the
first to use the EBSA description in proposals to such “international processes.”
9
The International Commission for the Conservation of Atlantic Tunas (ICCAT) is discussed below; it is species-based and there is an FAO Advisory Body, WECAFC, with no
management competence.
10 Twelve of these are available to download as pdfs in the Sargasso Sea Alliance Science Report
Series at: http://www.sargassoalliance.org/case-for-protection/ssa-science-report-series.
11 D. Laffoley and H. Roe (eds). Available at: http://www.sargassoalliance.org/case-forprotection.
12 CBD Wider Caribbean and Western Mid-Atlantic Regional Workshop to Facilitate the
Description of Ecologically or Biologically Significant Marine Areas (EBSAs), 28 February–
2 March 2012 in Recife, Brazil.
13The EBSA proposal garnered acclaim at the workshop, with several experts complimenting it for its thoroughness and scientific rigour.
14 CBD UNEP/CBD/COP/DEC/XI/17 (5 December 2012), at page 23, item 13; http://www
.sargassoalliance.org/storage/documents/cop-11-dec-17-en.pdf.
15 Freestone and Morrison (n 3), at p. 654.
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The first occasion was September 2012, at the NAFO Fisheries Commission,
and the second was at the November 2012 Meeting of the ICCAT Commission
in Agadir.
At NAFO, a proposal for special conservation measures for the areas of
the Sargasso Sea EBSA north of 35°N, and thus inside the NAFO Regulatory
Area, was put forward by the European Union (EU)—at the suggestion of the
UK—with strong US support. The NAFO Fisheries Commission requested the
advice of the NAFO Scientific Council. This advice was considered at its June
and September 2013 meetings, where the proposals were then sent for consideration by the new joint FC/SC Working Group on Ecosystem Approach
Framework to Fisheries Management which is scheduled to meet in July 2014.16
At the 12–19 November 2012 meeting of the ICCAT Commission in Agadir,
Morocco, in response to a proposal by Bermuda, the ICCAT Commission
referred the question of the significance of the Sargasso Sea for tuna and tunalike species to the Standing Committee on Research and Statistics (SCRS),17
which in turn referred it to its Subcommittee on Ecosystems. Bermuda and the
SSA worked with that Subcommittee, and at the ICCAT Commission Meeting
in Cape Town, South Africa, in November 2013, the chair of the SCRS reported
that the ecosystem group “recognized that basic biological and ecological data
provided for the Sargasso Sea offers a useful foundation for adopting the region
as a basis for a case study . . .”18
16
17
18
Northwest Atlantic Fisheries Organization (NAFO), NAFO/FC DOC. 12/24, Fisheries
Commission’s Request for Scientific Advice on Management in 2014 and Beyond of
Certain Stocks in Subareas 2, 3 and 4 and Other Matters (Sept. 2012). See also: NAFO
Scientific Council June 2013 Meeting. Section xiv—Sargasso Sea management measures
(Item 15, at page 48); available at: http://www.sargassoalliance.org/storage/documents/
scs13-17.pdf. See also: NAFO FC Working Paper 13/20, FC Request #15. Available at: http://
www.sargassoalliance.org/storage/documents/Scientific_Council_Advice_Sept_2013_-_
FC_WP13-20.pdf.
See Resolution by ICCAT on the Sargasso Sea, Res. 12-12 (2012) in ICCAT, Report For
Biennial Period 2012–13, Pt. I (2012)—Vol. 1 at p. 215, available at: http://www.iccat.es/
Documents/BienRep/REP_EN_12-13_I_1.pdf.1. The SCRS will examine the available data
and information concerning the Sargasso Sea and its ecological importance to tuna and
tuna-like species and ecologically associated species. 2. The SCRS will provide an update
on the progress of this work in 2014 and report back to the Commission with its findings
in 2015.
ICCAT Report for the Biennial Period 2012–2013, Volume 2. Standing Committee on
Research and Statistics. Appendix 9. Summary of the Report of the Inter-Sessional
Meeting of the Sub-Committee on Ecosystems, at p. 336. Available at: http://www.iccat.
es/Documents/BienRep/REP_EN_12-13_II_2.pdf.
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The SSA has also reached out to all the other international organizations
relevant to its work in order to develop a network of collaborating organizations. These include the secretariats of regional organizations, such as OSPAR,19
with which it signed a Collaboration Arrangement in 2011,20 the Cartagena
Convention,21 the Abidjan Convention,22 the Inter-American Convention for
the Protection and Conservation of Atlantic Sea Turtles,23 the International
Seabed Authority,24 the Convention on Migratory Species,25 UNESCO26 and
the Western Central Atlantic Fishery Commission (WECAFC).27
Within the UN General Assembly in November 2012, on the basis of a proposal by the United Kingdom, the USA and South Africa, the Annual Composite
Resolution on Oceans and Law of the Sea: “Noted the efforts of the Sargasso
Sea Alliance—led by the Government of Bermuda—to raise awareness of the
ecological significance of the Sargasso Sea.”28
19
20
21
22
23
24
25
26
27
28
The 1992 Convention for the Protection of the Marine Environment of the North-East
Atlantic (the “OSPAR Convention”) was formed from the merger of the Commissions of
the 1972 Oslo Convention and the 1974 Paris Convention, and entered into force in March
1998; text at (1993) 32 ILM 1072 and at: http://www.ospar.org/html_documents/ospar/
html/ospar_convention_e_updated_text_2007.pdf.
Collaboration Arrangement in August 2012 to “maximize opportunities for the sharing of
research, expertise and practical experience in seeking to protect and manage the marine
environment of the North Atlantic, particularly in Areas beyond National Jurisdiction.”
1983 Convention for the Protection and Development of the Marine Environment of the
Wider Caribbean Region. (1983) 22 ILM 221.
1981 Convention for Cooperation in the Protection and Development of the Marine and
Coastal Environment of the West and Central Africa. (1981) 20 ILM 746.
1996 text at: http://www.iacseaturtle.org/eng-docs/Texto-CIT-ENG.pdf.
Established under Part XI of the 1982 UN Convention on the Law of the Sea. (1982) 21
ILM 1261.
1979 Convention on the Conservation of Migratory Species of Wild Animals. (1980)
ILM 15.
With responsibility for the World Heritage Convention.
An advisory body established under Article IV of the FAO Constitution, text at: http://
www.rlc.fao.org/en/about-fao/statutory-bodies/wecafc/.
Para 199. For the 2012 Resolution, see: http://library.constantcontact.com/download/get/
file/1109154724045-37/2012+oceans+and+los+resolution+as+passed.pdf.
The following year, this time on a proposal from the UK, the USA and the Bahamas, a similar text was agreed in the 2013 Resolution (see para 215). United Nations General Assembly.
Sixty-eighth session. Agenda item 76 (a). Oceans and the law of the sea. A/68/L.18, page
37. Available at: http://www.sargassoalliance.org/storage/documents/A-68-L18.pdf.
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The Hamilton Declaration
The negotiation of the text of the Declaration was a two-year process. In
December 2012, the SSA convened a two-day meeting at the Pocantico Center of
the Rockefeller Brothers Fund in Tarrytown, New York. Official representatives
from the governments of Bermuda, Belgium, Dominican Republic, Portugal,
South Africa, Sweden, Trinidad & Tobago, the United States and the United
Kingdom attended, as did a representative from the European Commission.
In addition, representatives from international and regional organizations also
participated as observers, including the UN Division of Ocean Affairs and Law
of the Sea (DOALOS), the Regional Coordinators from the UN Environment
Programmes for the Caribbean (the Cartagena Convention) and West Africa
(the Abidjan Convention), the Secretariat of the Convention on Biological
Diversity and the Caribbean Community (CARICOM). The Pocantico Meeting
developed a negotiated text for review and consideration by the governments
interested in signing it. The text was presented to the EU Council of Ministers
Committee on Law of the Sea issues (COMAR) in Brussels in March 2013 and
reviewed by COMAR on a number of occasions thereafter.29
A second meeting was held in Pocantico in November 2013 to finalize the text
for signature. Together with a representative from the European Commission,
official representatives from the following governments attended: Portugal,
the Azores, the Bahamas, Belgium, Dominican Republic, the Netherlands and
Monaco, the USA and the UK. The International Seabed Authority and the
Canadian Senate participated as observers.
The Text of the Declaration
The Declaration Preamble recognises, inter alia, the Government of Bermuda
for its important leadership role in bringing to international attention the
global significance of the Sargasso Sea and for initiating and continuing
the process leading to the convening of the Hamilton Meeting. It reinforces the
point that the framework for this collaboration is the 1982 UN Convention on
the Law of the Sea, recognises the important scientific work of the SSA, and
recognises explicitly that the Declaration “is not legally binding and is without prejudice to the existing legal rights and obligations of the Signatories
under international law or to the competences of regional and international
organisations.”
29See http://archive.constantcontact.com/fs169/1109154724045/archive/1112961582336
.html.
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After reiterating that the guiding principle of this Declaration is to conserve
the Sargasso Sea ecosystem for the benefit of present and future generations,
Paragraph 3 states that the basic objective of the Declaration is for the signatory states to agree to collaborate, to the extent possible, in pursuing conservation measures for the Sargasso Sea ecosystem through existing regional and
international organizations with relevant competences. Paragraph 8 further
develops this concept, entrusting the Sargasso Sea Commission (discussed
below) with the role of developing proposals for such measures for consideration by the Signatories to the Declaration;30 the Signatories may then decide
whether to submit these or support them at relevant regional or international
organisations.
Institutions
The Declaration establishes a “Meeting of Signatories” and endorses the
establishment of a Sargasso Sea Commission with a Secretariat and supporting financial mechanism.31 The Government of Bermuda will establish the
Sargasso Sea Commission, composed of “distinguished scientists and other
persons of international repute committed to the conservation of high seas
ecosystems”, serving in their personal capacity, to “exercise a stewardship role
for the Sargasso Sea and keep its health, productivity and resilience under continual review.”32
A small permanent Secretariat will assist both bodies and a financial mechanism to receive voluntary contributions from both public and private sources
is to be established, including a dedicated fund in Bermuda.33 There are no
mandatory financial obligations but Signatories are invited on a voluntary
basis, to support the work of the Commission.34
30
31
32
33
34
These might be proposals for measures before IMO, or the relevant RFMOs, etc.
The structure is very loosely modelled on the structure of The Memorandum of
Understanding on the Conservation of Migratory Sharks, an instrument developed under
the auspices of the Convention on Migratory Species. Text is at: http://sharksmou.org/
sites/default/files/Migratory_Shark_MoU_English.pdf. As of February 2014, the MOU has
36 Signatories: 35 national governments and the European Union; see http://sharksmou.
org/list-of-signatories.
Established in the first instance under the law of Bermuda, the Government of Bermuda,
in consultation with the Signatories and Collaborating Partners, will select qualified individuals to serve on the Commission. Details of the Commission’s initial mandate are set
out in Declaration Annex II.
Paragraph 9.
Paragraph 7.
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Definition of the Sargasso Sea
For the purposes of this Declaration, the Sargasso Sea is defined as the “area
of collaboration”, being the portion of high seas and the Area35 under that
portion of the high seas (excluding the exclusive economic zone (EEZ) and
territorial sea around Bermuda, and the extended continental shelves of neighbouring states) shown on the illustrative map attached to the Declaration.
The outer parameters of this map were generally described by the scientific
experts attending the CBD Wider Caribbean and Western Mid-Atlantic
Regional Workshop to Facilitate the Description of Ecologically or Biologically
Significant Marine Areas (EBSAs), 28 February–2 March 2012 in Recife, Brazil,
discussed above.36 The EBSA definition included the Bermudian EEZ and
waters up to the edge of the seamount on which the islands of Bermuda are
situated (known as “the platform”), but for internal political reasons, arising
from misinformation within Bermuda about the role of the Commission, the
Bermudian authorities requested, at the last minute, that the Bermuda EEZ be
excluded from the area of collaboration.
Later Signatures and Collaborating Partners
The Declaration remains open for signature by other interested governments.37
Five out of the eleven governments attending the Hamilton Meeting signed
and the others indicated an interest in signing in the future. Similarly, it is open
to regional and international organizations, as well as other bodies and entities, interested in contributing to the efforts to conserve the Sargasso Sea ecosystem in accordance with this Declaration, to participate as “Collaborating
Partners.”38
Conclusions and Looking Forward
In the light of the decision made at the Rio Summit in June 2012, discussions continue within the UN General Assembly—through its Ad Hoc Openended Informal Working Group to study issues relating to the conservation
and sustainable use of marine biological diversity beyond areas of national
35
36
37
38
The Area is the seabed and ocean floor and subsoil beyond the limits of national jurisdiction. See 1982 UN Convention on the Law of the Sea, Article 1(1)(1).
See above.
Paragraph 10.
Paragraph 11.
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353
jurisdiction (known as BBNJ)39—regarding the possibility of negotiating a new
instrument—including possibly a new implementing agreement to the LOSC.40
The Hamilton Declaration is not an attempt to undermine that process, but to
highlight the importance of iconic high seas ecosystems like the Sargasso Sea
and the need for international collaboration to start sooner rather than later.
The work of the SSA and the signature of the Hamilton Declaration may
indeed represent a possible new paradigm for high seas conservation. Regional
treaty regimes, while still important, take a long time to negotiate, move slowly
and cannot bind third parties.41 The Alliance was funded by a group of forwardthinking private donors; it worked with the Government of Bermuda—and
ultimately the United Kingdom—in a novel form of public-private partnership. The Hamilton Declaration is not a legal instrument, but the Signatories
have agreed to work together through the international legal mechanisms that
already exist. The Sargasso Sea Commission will not have international legal
personality, nor will it have management authority per se. But its “stewardship” role does have the potential for it to be an important voice, to provide
the scientific and policy underpinnings for monitoring and management by
others, and to be the conscience of the Signatories. The appointment of the
first Sargasso Sea Commission, by the Government of Bermuda, after nomination by and consultations with the Signatory Governments of the Declaration,
is planned for August 2014.
David Freestone
Executive Director
Kate Killerlain Morrison
Deputy Executive Director
Sargasso Sea Alliance, Washington DC
39
40
41
For details of the meetings to date, see http://www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm. Discussed in Freestone and Morrison (n 3), at
pp. 649–650.
The Future We Want, G.A. Res. 66/288, at 3, U.N. Doc. A/RES/66/288 ¶ 162 (11 September 2012), available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/
RES/66/288&Lang=E.
For a comparison of the OSPAR experience and the SSA, see D. Freestone, D. Johnson,
J. Ardron, K. K. Morrison and S. Unger, “Can existing institutions protect biodiversity in
areas beyond national jurisdiction? Experiences from two on-going processes,” (2014) 42
Marine Policy (in press); http://dx.doi.org/10.1016/j.marpol.2013.12.007.
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Appendix 1
Hamilton Declaration on Collaboration for the Conservation of the
Sargasso Sea
Hamilton, Bermuda
11 March, 2014
WE, THE SIGNATORIES LISTED BELOW:
Recognising that the islands of Bermuda are the only land territory within the
Sargasso Sea and that the Government of Bermuda has taken a leadership role
in marine conservation;
Commending the Government of Bermuda for its important leadership role in
bringing to international attention the global significance of the Sargasso Sea
and for initiating and continuing a process leading to the convening of this
meeting in Hamilton;
Recognising the challenges in protecting areas beyond national jurisdiction
including effective monitoring and development of protection measures for
important marine ecosystems in such areas;
Reaffirming that the 1982 United Nations Convention on the Law of the Sea sets
out the legal framework within which all activities in the oceans and seas must
be carried out, including the obligation to protect and preserve the marine
environment;
Recognizing also that there are other international instruments that articulate how States may use their jurisdiction over vessels and persons to control
certain activities in areas beyond national jurisdiction including within the
Sargasso Sea;
Noting that the Sargasso Sea is the world’s only holopelagic seaweed ecosystem, home to a wide diversity of species including several identified for protection by a range of regional and international instruments;
Recalling the findings of “The Protection and Management of the Sargasso
Sea: the golden floating rainforest of the Atlantic Ocean. Summary Science and
Supporting Evidence Case”, including the identification of threats to the Sargasso
Sea, prepared by the Sargasso Sea Alliance on behalf of the Government of
Bermuda;
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Recognising that the ocean is a vital global resource; and
Acknowledging that this Declaration is not legally binding and is without prejudice to the existing legal rights and obligations of the Signatories
under international law or to the competences of regional and international
organisations.
We hereby:
Common Vision
1
Recognize that the Sargasso Sea is an important open ocean ecosystem,
the majority of which lies beyond national jurisdiction, which deserves
recognition by the international community for its high ecological and
biological significance, its cultural importance and its outstanding universal value.
2
Affirm that the guiding principle of this Declaration is to conserve the
Sargasso Sea ecosystem for the benefit of present and future
generations.
3
Decide to collaborate, to the extent possible, in pursuing conservation measures for the Sargasso Sea ecosystem through existing
regional and international organisations with relevant competences.
Geographical Area of Collaboration
4
Recognize the geographical area of collaboration of the Sargasso Sea is
defined in Annex I.
Institutional Arrangements for Collaboration
5
Establish a Meeting of Signatories of the Hamilton Declaration composed of representatives from each Signatory that will meet either physically or virtually at regular intervals. Each Signatory will designate a focal
point for communication among Signatories and with the Secretariat.
The Meeting of Signatories will:
• Pursue collaboration and cooperation in furtherance of the common vision of this Declaration;
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• Provide advice and guidance for the Commission (referred to in
paragraph 6 below) in its role of promoting the conservation of the
Sargasso Sea;
• Review and comment on the Commission’s proposed work programme and action plans;
• Make proposals for Commission initiatives and activities;
• Review and comment on proposals developed by the Commission
that Signatories, individually or jointly, may elect to submit for consideration by regional or international organisations with relevant
competences;
• Review Commission financial reports;
• Develop rules relating inter alia to the process of nomination of
individuals to serve on the Commission and to their length of service; and
• Develop other rules and procedures as appropriate.
6
Welcome the proposal of the Government of Bermuda to establish a
Sargasso Sea Commission, to be based in Bermuda, as well as a Secretariat
to assist the Commission and the Signatories. The Commission would, at
the outset, be established under Bermudian law. It would be composed of
distinguished scientists and other persons of international repute committed to the conservation of high seas ecosystems that would serve in
their personal capacity. The Government of Bermuda, in consultation
with the Signatories and Collaborating Partners (referred to in paragraph
11 below), will select qualified individuals to serve on the Commission.
Details of the Commission’s initial mandate are set out in Annex II.
7
Decide to consider the means and modalities by which Signatories could,
according to their mandate and their means, support the work of the
Commission by the provision of assistance, subject to the availability of
existing resources, either by financial contributions or by contributions
in kind, including the assignment or secondment of staff, provision of
equipment or services or coordination of existing activities.
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8
357
Decide that the Commission will also develop, for consideration by the
Signatories, proposals that the Signatories, individually or jointly, may
submit to, or support at, regional or international organisations with relevant competences. In developing such proposals, the Commission will
use the best available science, and apply an ecosystem approach and the
precautionary approach, as appropriate. Such proposals may include:
8.1 Measures to control, minimize, and where possible, eliminate the
adverse effects of international shipping activities which may be
adopted through the International Maritime Organization (IMO);
8.2 Measures to minimize, to the maximum extent possible, the adverse
effects of fishing activities, including for the protection of vulnerable marine ecosystems, which may be adopted through the Food
and Agriculture Organization of the United Nations (FAO) and/or
regional fisheries management organisations or arrangements; and
8.3 Any other measures to maintain the health, productivity and resilience of the Sargasso Sea and to protect its components, including the habitats of threatened and endangered species, from the
adverse effects of anthropogenic activities.
9
Welcome the establishment of a financial mechanism including a dedicated trust fund to support activities in furtherance of this Declaration,
including the work of the Commission and the Secretariat. The financial
mechanism would be available to receive voluntary contributions from
both public and private sources.
10
Encourage participation by any other interested government or regional
economic integration organisation in efforts to conserve the Sargasso Sea
ecosystem in accordance with this Declaration including by becoming a
Signatory to this Declaration.
11
Encourage relevant regional and international organisations, as well as
other bodies and entities, who wish to contribute to efforts to conserve
the Sargasso Sea ecosystem in accordance with this Declaration, to participate as Collaborating Partners by notifying the Secretariat of their
interest in doing so.
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Adopted in Hamilton, Bermuda on 11 March 2014
For the Government of Bermuda
For the Government of the Azores
For the Government of Monaco
or the Government of the United Kingdom of Great Britain and
F
Northern Ireland
For the Government of the United States of America
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Annex I
Geographical Area of Collaboration
For the purposes of this Declaration the Sargasso Sea is the portion of high seas
and the Area1 under that portion of the high seas, (excluding the exclusive economic zone (EEZ) and territorial sea around Bermuda, and the extended continental shelves of neighbouring states) shown on the illustrative map below.2
Scientific Note
The Sargasso Sea is an area of open-ocean situated within the North Atlantic
subtropical gyre, and bounded on all sides by the clockwise flow of major
ocean currents. The Gulf Stream and North Atlantic Drift form the western
1 The
Area is the seabed and ocean floor and subsoil beyond the limits of national jurisdiction.
See 1982 UN Convention on the Law of the Sea, Article 1(1)(1).
2 The Geographical Area of Collaboration was generally described by the scientific experts
attending the CBD Wider Caribbean and Western Mid-Atlantic Regional Workshop to Facilitate
the Description of Ecologically or Biologically Significant Marine Areas (EBSAs), 28 February-2
March 2012 in Recife, Brazil, as meeting the CBD scientific criteria for an EBSA adopted by the
Conference of the Parties to the CBD, at its ninth meeting, in annex 1 to Decision IX/20.
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FREESTONE AND MORRISON
and northern boundaries, the Canary Current forms a more diffuse eastern
­boundary, and the North Equatorial Current and Antilles Current form the
southern boundary. As these currents vary, the precise boundaries of the
Sargasso Sea also vary. To refine this general location and to ensure that the
area of interest incorporates a core area containing essential oceanographic
and environmental characteristics the Sargasso Sea Alliance commissioned a
new map based on criteria such as ocean current and eddy occurrence, remote
sensing of Sargassum weed, and seabed topography. The resultant map agrees
broadly with the overlap of previous delineations and is shown above. The
Sargasso Sea study area occupies ~ 4,163,499 km2 in an area extending between
22°–38°N, 76°–43°W and centred on 30°N and 60°W. Because the Canary current is more diffuse and variable than the other currents the eastern boundary
is more ill-defined, so the eastern boundary of the Sargasso Sea Alliance Study
Area is pragmatically considered to lie to the west of the mid-Atlantic Ridge
in the western basin of the Atlantic Ocean. Again for pragmatic reasons all
of these boundaries were placed outside the EEZs of all adjacent countries or
territories.3
3 See Laffoley, D.d’A and Roe, H.S.J., et al., 2011. The Protection and Management of the Sargasso
Sea: the golden floating rainforest of the Atlantic Ocean: Summary Science and Supporting Evidence
Case, Sargasso Sea Alliance, pp. 7-8.
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Annex II
Mandate of The Sargasso Sea Commission
Pursuant to paragraph 6 above, the Sargasso Sea Commission, which has no
management authority, will:
a.
Exercise a stewardship role for the Sargasso Sea and keep its health,
productivity and resilience under continual review;
b.
Develop a work programme and action plans for the conservation of
the Sargasso Sea ecosystem;
c.
Develop its rules and procedures as appropriate;
d.
Develop a regular budget and generate necessary financial reports;
e.
Serve as a focal point for the gathering and exchange of such information and data, develop a repository of information and scientific data
relating to the condition of the Sargasso Sea ecosystem and make it publically accessible;
f.
Foster and promote outreach, public awareness and scientific research
and observation, and liaise with appropriate national, regional and
international organisations to this effect;
g.
Publish and/or publicise reports of the results of scientific research and,
as appropriate, submit such reports to governments, national, regional
and international organisations with relevant competences for their consideration;
h. Monitor the effects, including cumulative effects, of any anthropogenic activities in order to determine whether such activities are likely
to have adverse impacts on the Sargasso Sea ecosystem and to assess
the appropriateness and effectiveness of any measures being adopted
for the conservation of the Sargasso Sea;
i.
Liaise with the Signatories, as well as with other governments in the
region and appropriate national, regional and international organisations with relevant competences, including those with competence in
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adjacent marine areas, to obtain a better understanding of issues of
common concern and interest through, where appropriate, developing
exchange of data, sharing of databases and collecting data in standardised formats;
j.
Cooperate with governments, national, regional and international
organisations with relevant competences in the development of environmental impact assessments, strategic environmental assessments
and equivalent instruments;
k. Encourage cooperation among governments, national regional and
international organisations with relevant competences in developing
and promoting contingency plans for responding to any significant pollution incidents; and
l.
Undertake such other tasks as may be deemed appropriate by the Meeting of the Signatories.
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Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎
Contents lists available at ScienceDirect
Marine Policy
journal homepage: www.elsevier.com/locate/marpol
Can existing institutions protect biodiversity in areas beyond national
jurisdiction? Experiences from two on-going processes
David Freestone a, David Johnson b, Jeff Ardron c,n, Kate Killerlain Morrison a,
Sebastian Unger c,1
a
Sargasso Sea Alliance, Suite 300, 1630 Connecticut Avenue, NW, Washington, DC 20009, USA
Seascape Consultants Ltd., Belbins Valley, Belbins, Romsey, Hampshire SO51 0PE, United Kingdom
c
Institute for Advanced Sustainability Studies e.V., Berliner Strasse 130, 14467 Potsdam, Germany
b
art ic l e i nf o
Keywords:
High seas
Biological diversity
Areas beyond national jurisdiction
ABNJ
MPA
Marine governance
a b s t r a c t
United Nations discussions on the governance of marine areas beyond national jurisdiction have
questioned, but not yet reached a decision, on whether existing institutional agreements and
structures are sufficient to meet global commitments to protect marine biodiversity, or if additional
mechanisms may be required. This paper considers two very different efforts to protect marine
biodiversity in these areas: (1) in the North-East Atlantic through the efforts of OSPAR Convention for
the Protection of the Marine Environment of the North-East Atlantic; and (2) in the central Atlantic,
through the efforts of the Sargasso Sea Alliance led by the Bermuda government. In each case, action
has been strongly supported by non-governmental organisations and subsequent progress has
hinged upon on-going dedicated efforts of “champion” governments to bring other States on board.
This paper outlines the difficulties that they have faced, and consequently why they have been timeconsuming, and are not yet completed. The paper then considers 10 common recommendations that
can be drawn from the experiences of these two distinct initiatives, and their relevance to on-going
UN deliberations.
& 2013 Elsevier Ltd. All rights reserved.
1. Introduction
It has been 31 years since the adoption of the United Nations
Convention on the Law of the Sea (UNCLOS) and with it, article 192
that obliges States to “protect and preserve the marine environment” [1]. Despite significant developments in marine governance
since that time, progress with regard to protecting and preserving
the marine environment has been very slow, particularly in areas
beyond national jurisdiction (ABNJ). The 2002 World Summit on
Sustainable Development (WSSD) set a target that by 2012
representative networks of Marine Protected Areas (MPA) should
be established within and beyond national jurisdiction [2]. The
2012 WSSD target was also taken on board by the Parties to
the Convention on Biological Diversity (CBD), which sought to
attain 10% protection across regions [3]. In 2010, when it was clear
that this target would not be met in most national waters and
certainly not in ABNJ (where protection is still significantly less
n
Corresponding author. Tel.: þ 49 331 288 22394.
E-mail addresses: [email protected] (D. Freestone),
[email protected] (D. Johnson),
[email protected] (J. Ardron),
[email protected] (K.K. Morrison),
[email protected] (S. Unger).
1
Tel.: +49 331 288 22394.
than 0.5% [4]), the Contracting Parties to the CBD established Aichi
Target 11 [5], which in effect extended the global 10% MPA target
to 2020. However, as of June 2013, there has still only been
modest progress in ABNJ: one MPA in the Mediterranean [6], one
in the Antarctic Southern Ocean [7] and seven in the North-East
Atlantic [8].
The United Nations General Assembly (UNGA), also recognising
the need to better protect biodiversity in ABNJ, decided in 2004 to
establish the Ad Hoc Open-ended Informal Working Group to Study
Issues Relating to the Conservation and Sustainable use of Marine
Biological Diversity beyond Areas of National Jurisdiction (BBNJ) [9].
BBNJ first met in 2006, and its sixth meeting was held in August
2013. At its first meeting, delegations noted that “existing mechanisms and institutions needed to apply a multi-sectoral and integrated
approach to management and cooperate and coordinate to that end,
thus moving away from their current sectoral approach” [10]. This
need for better cooperation and integration has been repeated at
every BBNJ meeting since. However, States participating in the BBNJ
remain divided as to whether the improvement of existing institutions is alone sufficient to protect biodiversity in ABNJ, or if an
additional instrument is also required [11].
At the 2012 United Nations Conference on Environment and
Development (Rio þ20), the discussion continued; a majority
opinion emerged in favour of a process to establish a new
instrument under UNCLOS, but consensus was not achieved.
0308-597X/$ - see front matter & 2013 Elsevier Ltd. All rights reserved.
http://dx.doi.org/10.1016/j.marpol.2013.12.007
134
Please cite this article as: Freestone D, et al. Can existing institutions
protect biodiversity in areas beyond national jurisdiction?
Experiences from two on-going processes. Mar. Policy (2014), http://dx.doi.org/10.1016/j.marpol.2013.12.007i
D. Freestone et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎
2
Therefore, the decision was deferred back to the UNGA: “(…)
before the end of the 69th session of the General Assembly [which
runs from September 2014 to September 2015], [States] commit to
address, on an urgent basis, the issue of the conservation and
sustainable use of marine biological diversity of areas beyond
national jurisdiction, including by taking a decision on the development of an international instrument under the Convention on
the Law of the Sea” [12].
It may appear self-evident that if, after more than thirty
years, existing institutions have not yet managed to protect
biodiversity in ABNJ then clearly something more, perhaps a
new international instrument, is required. Nevertheless, while
progress has been slow, some MPAs have been established
in ABNJ. Are these few MPAs simply exceptions that prove
the rule? Or, are they proof that it can be done, and no more
rules are required? This paper seeks to answer this through an
examination of two initiatives: the Convention for the Protection of the marine Environment of the North-East Atlantic (the
OSPAR Convention), and the Sargasso Sea Alliance. While these
two examples differ in many ways, they both share the common
goal of protecting biodiversity in ABNJ. This paper therefore
explores their challenges and successes to date, and how these
may reflect upon the efficacy of existing instruments and their
institutions.
Many elements that contributed to the successes of these two
processes are already in the literature [13–18]. Understandably,
there is a greater reluctance to discuss the obstacles and difficulties that these two pioneering initiatives have faced. However, to
objectively consider the efficacy of existing instruments in protecting biodiversity in ABNJ, it is necessary to consider these difficulties as well. That said, it should be noted that both of these
examples are still on-going, and hence the “jury is still out”
regarding the extent that biodiversity in ABNJ will ultimately be
protected. Furthermore, in the case studies below, it should be
noted that OSPAR has been working on this for more than a decade
longer than the Sargasso Sea Alliance; therefore, it is further
progressed.
2. Two case studies
2.1. The OSPAR Convention
The OSPAR Convention, the regional seas agreement for the
North-East Atlantic that includes waters both within and beyond
national jurisdiction, was concluded in 1992 and entered into force
in 1998. At its first Ministerial Meeting in 1998, Annex V, On the
Protection and Conservation of the Ecosystems and Biological Diversity of the [OSPAR] Maritime Area was adopted, which came into
force in 2000. OSPAR Contracting Parties committed to establishing a network of MPAs, which was re-affirmed as part of the 2002
inter-ministerial Bergen Declaration [19]. At its Ministerial Meeting in 2010, six MPAs in ABNJ were established. They cover a total
area of 287,065 km2, protecting a series of seamounts and sections
of the Mid-Atlantic Ridge and host a range of vulnerable deep-sea
habitats and species. A seventh pelagic High Seas MPA, CharlieGibbs North (178,094 km2), was designated in 2012 in waters
superjacent to area included within an Icelandic submission to the
Commission on the Limits of the Continental Shelf [8]. The
establishment of these MPAs in ABNJ has been widely viewed as
a positive achievement [17]. Some management provisions are
contained in OSPAR Recommendations for each of these areas;
however, to date no cross-sectoral management plans have been
put in place.
2.2. The Sargasso Sea Alliance
Named for the algae that accumulates in the North Atlantic
Subtropical Gyre and which forms into large mats or windrows,
the Sargasso Sea is the world0 s only sea without coasts; only the
tiny islands of Bermuda have direct coastal frontage. The Sargasso
Sea Alliance (SSA), formed in 2010 under the leadership of the
Government of Bermuda, aims to secure legal protection measures
for the Sargasso Sea —a two million square nautical mile ecosystem in the North Atlantic primarily located in ABNJ.4 The SSA
Secretariat is based in the IUCN office in Washington DC. A fiveperson Executive Committee and a larger Steering Committee
provide strategic guidance, while a separate Senior Science Advisory Committee and a Legal Working Group provide specific
expertise on scientific and legal aspects. The Alliance has three
key objectives: (1) to build an international partnership that will
secure recognition of the ecological significance of the Sargasso
Sea and the threats that it faces; (2) to use existing regional,
sectoral and international organisations to secure a range of
protective measures for all or parts of the Sargasso Sea to address
key threats; (3) and to use the process as an example of what can
and cannot be delivered through existing institutions in areas
beyond national jurisdiction. It is this third objective that will be
the focus of this paper.
2.3. Similarities and differences
Table 1 summarises similarities between OSPAR and the
Sargasso Sea Alliance. There are noteworthy similarities between
these two initiatives. Most importantly, both have “champion”
States willing to support them. For SSA, it is the Bermuda
Government, with the support of the United Kingdom (UK). For
OSPAR, it was initially The Netherlands, later joined by France,
Germany, and Portugal [17]. While the inspiration for both
initiatives originally came from non-governmental organisations
(NGOs), both have seen success operating as inter-governmental
organisations. For the SSA, these NGOs remain involved; within
the OSPAR Maritime Area, it was the Worldwide Fund for Nature
(WWF), a permanent observer organisation that originally suggested protecting certain ecologically important places in ABNJ.
WWF undertook substantive collations of relevant information in
support of their arguments to persuade States to take action in
support of agreed commitments.
A key difference between the two case studies is the presence
or absence of regional organisations. In the North-East Atlantic
there is both a regional seas agreement (i.e. OSPAR) as well as a
regional fisheries management organisation (RFMO): the North
East Atlantic Fisheries Commission (NEAFC) [20]. However, despite
the fact that the Sargasso Sea lies between Europe and the
Americas, there is no regional environmental treaty covering the
Sargasso Sea, nor is there a regional fisheries treaty applicable to
the whole area for non-tuna species.5 This is especially noteworthy
when it is considered that the only two other regions where MPAs
have been established in ABNJ have regional agreements that were
4
Other members of the Alliance are the International Union for Conservation
of Nature (IUCN), Woods Hole Oceanographic Institution, WWF International,
Marine Conservation Institute, and Mission Blue/Sylvia Earle Alliance, together
with the Bermuda Underwater Exploration Institute, the Bermuda-based Atlantic
Conservation Partnership and the Bermuda Institute for Ocean Sciences.
5
As opposed to a regime for tuna and tuna-like species – see discussion of
ICCAT below. Note that a small area of the Sargasso Sea above 351N comes within
the regulatory area of the 1979 Convention on Future Multilateral Cooperation in
the Northwest Atlantic Fisheries (NAFO), which applies to most fishery resources of
the Northwest Atlantic except salmon, tunas/marlins, and sedentary species
(e.g. shellfish). For text see http://www.nafo.int/about/overview/governance/con
vention/convention.pdf.
135
Please cite this article as: Freestone D, et al. Can existing institutions
protect biodiversity in areas beyond national jurisdiction?
Experiences from two on-going processes. Mar. Policy (2014), http://dx.doi.org/10.1016/j.marpol.2013.12.007i
D. Freestone et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎
3
Table 1
Similarities between OSPAR and Sargasso Sea Alliance approaches, structure, and progress.
Similarities
Jurisdictional coverage
ABNJ
EEZ
State and non-governmental champions as catalyst
Management vision
Goal to protect biodiversity in ABNJ
Seabed
High seas water column
Active Regional Fisheries Management Organisations
MoUs/Collaborative Arrangements to promote cooperation
with international and regional organisations
Scientific basis: expert-driven; informed by international
principles; desk study of best available information
including spatial data; peer-reviewed
CBD EBSA description(s)
Difficulties integrating science across sectors
Difficulties integrating management across sectors (stovepiped, uncoordinated, long time lines)
OSPAR
Sargasso Sea Alliance (SSA)
Yes
Yes; 12
The Netherlands, later joined by France,
Germany, and Portugal; inspired by nongovernmental organisations (WWF)
Yes
Yes – single EEZ (Bermuda/UK)
Government of Bermuda, with support of
United Kingdom; inspired by nongovernmental organisations
Yes
Yes
Yes
NEAFC, ICCAT
Yes
Yes
Yes
ICCAT; NAFO ; but no regional fisheries treaty
applicable for non-tuna species
Yes: Collaboration Arrangement with OSPAR;
others in development
Yes: MoUs with IMO, NEAFC, ISA, NASCO;
Collaboration Agreement with SSA, draft
Collective Arrangement between competent
authorities on the management of selected
areas
Yes
Yes
Yes, in process
Yes
Yes, but efforts in hand
Yes, accepted
Yes
Yes
Table 2
Differences between OSPAR and Sargasso Sea Alliance approaches, structure, and progress.
Differences
OSPAR
Regional Seas agreement(s)
Type of organisation
Yes: OSPAR itself
Inter-governmental organisation
Competent organisation as own entity
Age/lifespan
Projected end date
Funding
Common principles
Difficulties internally reaching
agreement on common principles
Difficulties externally reaching
agreement on common principles
amongst the competent authorities
Legal mandate
Binding
Non-binding
Management measures established
Addresses extended continental shelf
claims
High Seas MPAs
Sargasso Sea Alliance (SSA)
No
Single government; Secretariat supported by
inter-governmental organisation (IUCN).
Yes; but limitations. For certain issues (fisheries, international shipping, No; works through existing sectoral bodies.
seabed minerals) works through other sectoral bodies; can deal with
assessment of the status of the environment, the identification of
features to be protected, the establishment of MPAs and of objectives and
monitoring measures.
40 years, no anticipated dissolution
3 years; to be replaced by a permanent SS
Commission
None
4–5 years demonstration project before
establishing longer-term Sargasso Sea Commission
Contracting parties contributions
Private individual philanthropic and foundation
contributions
No
Yes
Yes
Unknown
Convention for the Protection of the marine Environment of the North- No
East Atlantic (the OSPAR Convention)
Decisions agreed by consensus (or 3/4 majority)
Recommendations and Other Agreements (e.g. Guidelines)
Future Hamilton Declaration will be based on
voluntary cooperation between like-minded
governments
Yes/No: Recommendations agreed in 2010; but,
No: in early discussions;
Management Plans still under development;
Collective Arrangement between authorities under development to
achieve cross-sectoral management
Yes
No
Yes: seven designated MPAs (287,065 km2) within a 13.5m km2
Maritime Area
also instrumental to their establishment – the Southern Ocean
(Commission for the Conservation of Antarctic Marine Living
Resources) and the Mediterranean (Barcelona Convention and
General Fisheries Council for the Mediterranean).
No: one single large area under consideration
with varying levels of management within it
4,163,500 km2 (in total)
Table 2 summarises differences between OSPAR and the Sargasso Sea Alliance. Both initiatives are breaking significant new
ground and setting new precedents. While the MPAs from the
Mediterranean and Antarctic also set precedents, they were
136
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D. Freestone et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎
4
conceived under special circumstances. The Pelagos Sanctuary for
Mediterranean marine mammals covered high seas areas only
because neighbouring Mediterranean nations had not declared
exclusive economic zones [21]. The Southern Ocean is also special
case, protected under its bespoke Antarctic Treaty System [22].
Until the designations agreed by OSPAR, no MPAs had been
established in the “normal” ABNJ, comprising the vast majority
of ocean beyond the 200 nautical mile limit of States. Furthermore,
some of the OSPAR MPAs are the first examples of hybrids that
include the high seas water column as well as seabed claimed as
outer continental shelf by the coastal states [23].
Similarly, the Sargasso Sea Alliance, by seeking to establish
protection measures in ABNJ where there is no Regional Seas
agreement and, for the most part, no non-tuna fisheries agreement, is also setting a new precedent in seeking to use the existing
legal framework and any existing sectoral bodies that may be able
to assist [18]. Given that most of ABNJ is without regional seas
conventions [24], the work of the Sargasso Sea Alliance is both
timely and relevant.
2.4. Establishing the initiatives
2.4.1. Sargasso Sea: the Alliance
The Sargasso Sea Alliance is designed as a “learning by doing”
demonstration project. Although States at the UN frequently
advocate the use of existing international bodies to protect high
seas areas on a regional scale, no one has ever attempted to protect
an ABNJ area before using solely the existing sectoral organisations, in the absence of a regional convention.
Crucial to the success of the project is the strong leadership and
involvement of the Government of Bermuda, a UK Overseas
territory. Under a General Entrustment Agreement, Bermuda has
limited rights to enter into external relations with certain countries, e.g. the United States and with Commonwealth countries, in
relation to specific subject areas. However the UK Foreign and
Commonwealth Office (FCO) has been extremely flexible over the
Sargasso Sea initiative, provided actions are taken in consultation
with them. Some 160 ships are registered in Bermuda and fly its
flag but it is not an independent member of the International
Maritime Organisation and sits as part of the UK delegation.
UNCLOS was extended to Bermuda when the UK became a party,
but the 1992 CBD has not yet been so extended. Bermuda is an
Associate Member of the International Convention for the Conservation of Atlantic Tunas (ICCAT), and attends as a UK Overseas
Territory, when the UK as a member of the European Union (which
has exclusive fisheries competence) can no longer attend
independently.
These complicated legal arrangements mean that the support
of the Sargasso Sea Alliance by the UK, particularly through its FCO
has been crucial [25]. Having prepared a strong scientific case for
the protection of the Sargasso Sea (see below) [26], which
identifies key potential threats as well as the international and
regional organisations with relevant competences6 the approach
has been pragmatic – to utilise every opportunity to put forward
the case for protection measures – but these have to be channelled
through the relevant UK departments.
2.4.2. OSPAR: the legal basis
Before OSPAR had designated MPAs in ABNJ, there were some
questions about whether it had the legal competence to do so.
6
The only international bodies that have sectoral jurisdiction in the Sargasso
Sea are the International Maritime Organisation (IMO) in relation to shipping and
marine pollution issues, the International Convention for the Conservation of
Atlantic Tunas (ICCAT), and the International Seabed Authority (ISA) for seabed
mining.
During 2008/2009, OSPAR0 s Group of Jurists and Linguists examined OSPAR0 s competence to regulate different human uses.
Informed by previous evaluations [27,28], they concluded that
within the OSPAR Maritime Area no other international organisation has the mandate to set in place the integrated process for the
protection of an area in ABNJ, taking an ecosystem approach with
regard to human activities and their cumulative impacts. Hence,
activities such as the assessment of the status of the environment,
the identification of features to be protected, the establishment of
MPAs and of objectives and monitoring measures fell within
OSPAR competence. While the management of fisheries fell outside its competence, and shipping is normally regulated through
IMO, the Group of Jurists and Linguists identified a number of
human uses which may be subject to OSPAR regulation including
scientific research, cable laying, dumping, construction of installations and artificial islands and potential deep-sea tourism. Therefore, the conclusion was that given the existing legal competence
of other international organisations, it was desirable for OSPAR to
work with these organisations with a view to contributing to the
production or application of a wider range of measures [29].
While the above legal analysis satisfied OSPAR Contracting
Parties to proceed with the designation of MPAs in ABNJ, which
has since received wide global attention, their competence to do
so is still occasionally questioned by a few States that are not
parties to regional agreements [30]. Hence, there is not quite yet a
global consensus on how far the duties and obligations of Regional
Seas Conventions can, or should, extend into ABNJ (see Rochette
et al., in this issue).
2.5. Establishing the scientific basis for protection
2.5.1. OSPAR
A campaign by WWF concentrated on producing a prima facie
case to show the vulnerability to human activities of the CharlieGibbs Fracture Zone (CGFZ), a deep-sea trench cutting through the
Mid Atlantic Ridge (MAR) which provides a critical biological
corridor linking abyssal plain habitat either side of the MAR.
OSPAR Rules of Procedure require any Observer organisation
proposal to be sponsored by a Contracting Party. In 2007, the
Netherlands co-sponsored the proposal to consider the CGFZ as a
“pilot”. This gave an impetus to build the scientific case using
OSPAR MPA criteria as well as conservation priorities established
in other international forums, in particular the Food and Agriculture Organisation of the United Nations (FAO), and the CBD.
Evidence of critical habitats and vulnerable species from Mar-Eco
research cruises [31], part of the Census of Marine Life, was
particularly important to this exercise and had previously
informed the WWF proposal.
Under the auspices of its expert group on MPAs, OSPAR brought
together deep-sea scientists to advise on the application of agreed
OSPAR ecological criteria (importance for threatened and/or
declining species and habitats, functional ecological significance,
naturalness, sensitivity to disturbance, naturalness) and practical
criteria (potential for restoration, degree of acceptance, potential
for success of management measures, potential damage by human
activities and scientific values). In parallel, Germany, lead country
for the OSPAR expert group on MPAs, commissioned a scoping
report from the University of York, UK (in association with the
Scottish Association of Marine Science and the PP Shirshov
Institute of the Russian Federation). This report identified eight
additional potential MPAs in the wider Atlantic. It did so by further
reviewing scientific literature, mapping significant marine habitats
(including critical feeding areas), undertaking a consultation
exercise and prioritising areas currently vulnerable (mainly considering fishable depth zones). These analyses were subsequently
subject to two rounds of peer review by the International Council
137
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for the Exploration of the Sea (ICES), the advisory body to OSPAR,
NEAFC and the European Union (EU) on issues related to the
impact of fishing activities, ecosystem conservation and the
ecosystem approach to management of human activities.
The production of a comprehensive background document
providing the supporting scientific evidence for the identification
and selection of the CGFZ MPA convinced more OSPAR Contracting
Parties to support and co-sponsor the “pilot” proposal in 2008.
France, one of the co-sponsors, undertook mapping of environmental pressures in the wider Atlantic, which helped visualise the
pressures of impacts and promoted a wider dialogue through an
EU Presidency Seminar 0 2012 Marine Targets7 [32].
2.5.2. Sargasso sea
In June 2011, as a draft Summary Science Case began to take
shape, the SSA convened an expert workshop to bring together
prominent scientists, colleagues from the OSPAR and the International Seabed Authority secretariats, as well as a number of UN
delegations, which led to the finalisation of the science case report
[25]. The significance of the emerging initiative of the CBD to hold
workshops to “describe” Ecologically or Biologically Significant Areas
(EBSAs) was seen as an important opportunity to utilise a sciencebased tool in its proposals. EBSAs – described by a scientific process –
could provide an important unifying concept for the various sectoral
organisations which will have to consider proposals for specific
protection measures. The draft Summary Science case provided an
ideal platform for the Sargasso Sea to be described as an EBSA.
In March 2012, the CBD Secretariat organised a workshop to consider
the description of EBSAs in the mid-Atlantic region. The Bermuda
Department for Environmental Protection presented the case for the
Sargasso Sea, which was discussed and adopted by the scientists at
the workshop and then as part of the Workshop Report forwarded to
the CBD0 s Subsidiary Body on Scientific, Technical and Technological
Advice (SBSTTA) meeting in April 2012 and ultimately the Conference
of Parties (COP) in October 2012, where it was officially described as
an EBSA.8
2.6. Establishing cooperative agreements
2.6.1. OSPAR
In the high seas portion of the OSPAR Maritime Area, all fishing
other than for highly migratory tuna and salmon species (managed by
the International Commission for the Conservation of Atlantic Tunas
(ICCAT) and the North Atlantic Salmon Conservation Organization
(NASCO) respectively) is managed by NEAFC. The 2006 amendments
to the NEAFC 1982 Convention include a commitment to conservation
(Article 4) and to take account of the impacts of fisheries on the
conservation of marine biodiversity. The geographic area of the NEAFC
Regulatory Area is the same as the OSPAR Maritime Area. NEAFC has
adopted a series of conservation measures for the protection of cold
water coral habitats and Vulnerable Marine Ecosystems (VMEs) on the
MAR as well as the Hatton and Rockall Banks.
In 2008, OSPAR signed a memorandum of understanding
(MOU) with NEAFC [33]. In addition to fostering a closer relationship with this organisation [34], OSPAR sought to formalise working relationships with other competent authorities. In 1999, OSPAR
and IMO agreed a “Cooperative Agreement” guiding joint activities
with regard to issues of joint interest related to shipping. Formal
MOUs with the International Seabed Authority (ISA) and North
Atlantic Salmon Conservation Organisation (NASCO) were also
7
For more details on the scientific process and rationale behind the identification of the candidate sites for OSPAR MPAs in ABNJ, see O’Leary et al. [17].
8
The EBSA proposal garnered acclaim at the workshop, with several experts
complimenting it for its thoroughness and scientific rigour.
5
adopted respectively at the OSPAR Commission meetings in 2010
and 2013. These bilateral agreements are fundamental to crosssectoral cooperation and negotiations continue to secure such an
arrangement with ICCAT.
Initiated by the OSPAR Commission meeting in 2009, the
“Madeira Process” began in 2010 as an informal stakeholder workshop with representatives of competent authorities and other
stakeholders (Funchal, Madeira, 23–25 March). The Charlie-Gibbs
MPA nomination document had been circulated to other competent
authorities for comment and this highlighted a need to exchange
information and better understand different mandates, responsibilities and working practices. The approaches of organisations charged
with environmental protection can differ from those undertaking
resource management. Recognising such differences between competent authorities, a key output of this workshop in a search for
commonality was a draft “Collective Arrangement” that included a
set of draft joint principles for selected areas and specifications with
regard to the collaborative management of selected areas, including
the exchange of information. Wherever possible, text was drawn
from accepted definitions enshrined in the relevant conventions or
agreements. The Madeira Process also attempted to scope joint
management procedures, using the (then proposed) Charlie-Gibbs
MPA as an example. The idea of the generic management was to
agree to work together towards a better knowledge base through
exchange of information (notifying, informing, updating) and where
appropriate cooperating on any environmental impact assessments
and strategic impact assessments (EIAs and SEAs).
The OSPAR Commission endorsed the text of the “Collective
Agreement” in 2011 [35]. The Secretariats of the other competent
authorities were invited to present the proposed collective
arrangement outcome to their annual meetings. Despite enthusiasm at the workshop and the relative simplicity of the list of
applicable principles, acceptance by other competent authorities
at the global level is still pending9 and it has been complicated to
secure their endorsement through the formal procedures [36].
A second Madeira Process workshop took place in Paris (17–18
January, 2012). In addition to noting initiatives of mutual interest
[37] and taking stock of updates to management roles and
responsibilities, a principal aim of this meeting was to elaborate
a collective management plan for a pilot site, using the CharlieGibbs MPA as a template. Agreed OSPAR Guidelines for the
management of MPAs in the OSPAR Maritime Area provided the
point of departure [38]. The workshop also considered a number
of other relevant management plans [39,40] and ideas on high
seas marine spatial planning [41].
The process is still on-going and it has been time- and labourintensive, particularly in the global bodies, IMO and ISA, to move
such an idea forward, with organisations0 different levels of technical
scrutiny and sometimes complex and mutually incompatible annual
meeting cycles. As a result, bilateral exchanges between the Secretariats are still the main way of cooperation between the different
organisations. However, it should be recognised that the Collective
Arrangement has put forward a first example how more formal
collaborative agreements between competent organisations could be
achieved at the international level.
2.6.2. The Sargasso Sea Alliance
At the June 2011 expert workshop (introduced above), the
OSPAR Madeira Process was discussed, and a similar approach for
the Sargasso Sea recommended. The SSA Secretariat, which does
9
Signing of Collective Arrangement by NEAFC was supported by its Permanent
Committee on Management and Science (PECMAS), and the 32nd Annual Meeting
of NEAFC (November 2013) has mandated the NEAFC President to arrive at a final
decision through a postal voting procedure.
138
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6
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not have international legal personality, has pursued a similar
approach at a lighter scale by developing a series of Collaborative
Arrangements with the secretariats of competent authorities. The
first of these was with the OSPAR Secretariat. Others with the
Inter-American Turtle Convention and the Abidjan Convention10
are in train.
After the CBD EBSA Workshop in March 2012, the SSA project
was the first to use an EBSA description to attempt to achieve
protection measures in a sectoral organisation. In September 2012,
at the NAFO Fisheries Commission, on a proposal from the UK, the
EU, with the strong support of the US, put forward a proposal for
special conservation measures for the areas of the Sargasso Sea
EBSA north of 351N, and thus inside the NAFO Regulatory Area.
After a vigorous discussion, this was referred to the NAFO Scientific
Council to be considered at its June 2013 meeting, and then
deferred to September 2013, at which point the proposals were
sent for consideration by the joint FC/SC Working Group on
Ecosystem Approach Framework to Fisheries management [42].
In November 2012, Bermuda, as UK Overseas Territory, proposed a Recommendation to the ICCAT Commission Meeting in
Agadir that the ICCAT Standing Committee on Research and
Statistics (SCRS – the Scientific body of ICCAT) examine the data
compiled on the Sargasso Sea and the impacts of fishing activity
on tuna and tuna like species and on the ecosystem in the area,
and that it consider the viability of establishing special conservation and management measures within the Sargasso Sea. The
proposed Recommendation was strongly supported by the EU, the
US, among others, but encountered opposition from States that
appeared not to accept the significance of the 2012 CBD COP
decision on EBSAs [43]. Nevertheless the Commission did resolve
to request the SCRS to examine the available data and information
concerning the Sargasso Sea and to provide an update on the
progress of this work in 2014 and report back to the Commission
with its findings in 2015. The main brunt of the work will be
undertaken by the Subcommittee on Ecosystems, which is currently involved in a major assessment of turtle by-catch. However,
the Subcommittee, in existence since 2005, has never been asked
before to assess the ecological importance of a complete ecosystem. At the July 2013 meeting of the Subcommittee on Ecosystems,
Bermuda presented an inventory of the ICCAT species in the
Sargasso Sea highlighting the significance of the Sargasso Sea to
these species [44]. The Subcommittee welcomed this work and
“recognised that [it] is providing a useful foundation for adopting
this region as a basis for a case study in implementing the
Ecosystem Based Fisheries Management (EBFM) approach within
ICCAT and this collaboration should continue to be supported” [45].
At the same time, the SSA has commissioned assessments of
potential risks from shipping and possible appropriate protective
measures to present to IMO in relation to the risks to the
ecosystem from shipping and vessel source pollution [26]. The
ecologically-related criteria for IMO Special Areas are not dissimilar from the criteria for an EBSA, but the EBSA description will not
by itself be sufficient evidence for a shipping measure. Once
Bermuda and the SSA have agreed with the UK what might be
an appropriate area or measure, then a detailed proposal will be
prepared for the IMO Marine Environment Protection Committee
(MEPC).
A key part of the SSA strategy is the convening of an interministerial meeting in Hamilton Bermuda – planned for March
2014 – to adopt a Declaration on Collaboration for the Conservation
10
While the Sargasso Sea does not directly abut the jurisdiction of the Abidjan
Convention in west Africa, the Alliance is working to establish Collaborative
Arrangements with similar regional entities which share common principles
toward marine protection that are in broader proximity to the Sargasso Sea, such
as the Cartagena Convention in the Caribbean and the OSPAR Convention.
of the Sargasso Sea. The Government of Bermuda plans to send
invitations to the governments of the Atlantic rim States, to States
in Europe (primarily the North Sea States that are the Range States
of endangered species, such as the European eel (Anguilla anguilla)
that only spawns in the Sargasso Sea) and to key international and
regional organisations. In December 2012, a preliminary technical
meeting was held at the Pocantico Centre of the Rockefeller
Brothers Fund in the US, which included representatives of 10
governments and six international organisations, including the
European Commission, to discuss a draft Declaration text. Because
the Declaration might cover fishing and shipping issues, it is a
matter of mixed competence for the EU; their involvement therefore involved subsequent discussions at the EU Council Committee
on Law of the Sea (COMAR) initiated by the UK Foreign and
Commonwealth Office (FCO) on behalf of Bermuda.
A second technical meeting was held November 23/24, 2013 which
finalised the Declaration text. The anticipated outcome of the
Hamilton Meeting is a non-binding political declaration which
might agree to consider future protection measures for the
Sargasso Sea and the establishment of a Bermuda-based Sargasso
Sea Commission, whose initial role may include outreach, research
and monitoring.
Each of these processes has been extremely time- and labourintensive. Even though the EBSA process is ostensibly a sciencedriven process which has already been through a range of different
review processes before international fora, each sectoral organisation feels the need to re-examine the issues for itself. Hence, the
Sargasso Sea EBSA description and science case have been referred
to the science bodies of NAFO and ICCAT. A key challenge for the
whole project has been timescale and the lack of coordination
between the various sectors, which highlights the stove-pipe/silo
mentality of national governments as well as of international fora.
Shipping meetings are not obliged to coordinate with mining or
fishing meetings as they involve different personnel, hence there
are often different national positions on related issues. For a small
country or a small team, this is very challenging. International
conventions0 meetings usually involve a cycle over a year – the
IMO MEPC meets every nine months and requires papers to be
submitted months in advance. Whilst giving due time for consideration, this makes the progress on many issues “glacial” and
deferring issues is often used as a negotiating ploy.
3. Lessons learnt
Although the size, and structure and legal status of OSPAR and
SSA differ greatly, the similarity of some of their experiences
suggests certain themes that would likely be repeated for subsequent regional initiatives with similar aims and objectives
in ABNJ.
3.1. Time and effort
Considerable time and effort have been required to juggle the
relevant meetings, internal and external processes and actors,
which to some extent is to be expected in multilateral planning.
Despite the relatively good progress to date, experiences from the
two case studies suggest that protection of ABNJ using existing
instruments is not straight-forward, and requires the dedication of
significant resources.
OSPAR discussions on high seas MPAs began internally in 2004,
leading to establishment of the first set six years later (and another
one eight years later). However, regarding external coordination,
they remain a work in progress. For a busy organisation such as
OSPAR, it is difficult to schedule the necessary additional meetings
required for this MPA initiative, while also dealing with the myriad
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of other business in the annual meeting cycle. After achieving the
initial goal of the MPAs0 designation, keeping up the effort to
complete the remaining years of behind-the-scenes work required
to establish their integrated cross-sectoral management has been
very challenging.11
For the younger SSA, established in 2010, its first three years
have involved mostly familiarising the various relevant governments and sectoral authorities with the initiative, and later, the
scientific case. The SSA relies in large part on philanthropic
support, and the slow pace of progress can be unsatisfactory to
funders not familiar with typical international processes. The
funding cannot last indefinitely, and the bureaucratic pace of
progress poses a very real threat to SSA0 s success, as the initiative
was originally envisaged to be a 3–4 years effort. For smaller
governments as well as initiatives like the SSA, the uncoordinated
schedule of international meetings can pose considerable logistical
difficulties. The SSA is designed as a demonstration project and
donors are watching its progress carefully. Success might well
mobilise more resources for initiatives in poorer regions of the
world where the funding for a secretariat and several years0 travel
to various meetings might otherwise be hard to secure.
3.2. Difficulties integrating science across sectors
Both the OSPAR and SSA experiences have highlighted that
sectoral bodies are reluctant to accept the results of scientific
research and peer review originating outside of their respective
organisations, especially data that comes from sources beyond their
individual Contracting Parties. Although the Sargasso Sea is described
as a CBD EBSA, this status has so far had little impact on dealings
with sectoral bodies. In the case of OSPAR, the described CBD EBSAs
for the North-East Atlantic, at the request of the regional fisheries
body NEAFC, went through two additional reviews coordinated by
ICES. Based on the ICES advice, OSPAR in June 2013 rejected five of
the 10 EBSA descriptions being put forward. Four of the five
“accepted” EBSA descriptions are undergoing a further boundary
delimitation process, based on advice from ICES. NEAFC has discussed, but has not yet made a decision on whether to accept the
EBSAs with revised boundaries. Both OSPAR and NEAFC are addressing concerns by some Contracting Parties that EBSAs should not
infringe on submissions to the CLCS for extended national continental shelf claims, with which they overlap. How both OSPAR and
NEAFC will manage any accepted EBSAs remains to be determined.
The unfolding EBSA story in the North-East Atlantic, and elsewhere,
highlights the current lack of coordinated science and review
procedures, and has meant that there is no single scientific designation that is recognised by the various authorities. Hence, proposals to
protect biodiversity in ABNJ must run a gauntlet of several sectorspecific review processes, each requiring time, effort, and meetings.
Overall, regional initiatives have been required to respond to a high
burden of proof due to the precedent setting nature of the efforts. In
addition to integration challenges, overall difficulty remains in
providing unequivocal evidence of causal linkages between human
activities and effects on the ecosystem in the data-limited environment of the open ocean.
3.3. Difficulties agreeing to common principles
As part of the Madeira Process, OSPAR put forward shared
principles for agreement [32], most of them with global acceptance in international environmental law. While this seemed like a
11
OSPAR is not alone in this situation. The Pelagos MPA, established in 2003, still
has no management body. http://openchannels.org/blog/disciara/pushing-forwardpelagos-sanctuary-and-conservation-marine-mammals-mediterranean-sea.
7
logical place to begin, it has caused issues. Owing to the different
histories of each of the sectoral organisations, there are no
commonly shared principles or shared interpretation of them.
Similarly, after initial bilateral consultations, the SSA has withdrawn from the agenda of its planned inter-ministerial meeting its
goal of establishing common principles. Indeed, discussion of
integrated management is also proving to be challenging – see
below. If the experiences of OSPAR and SSA are indicative of other
regions, the process of establishing joint ocean management
principles will require more in-depth discussion at the global level.
3.4. Difficulties integrating management across sectors
Ultimately, all of the above-listed difficulties would be of
secondary importance if the goal of integrated cross-sectoral
management (and hence protection of biodiversity in ABNJ) had
nonetheless been achieved. However, to date, there are no examples of integrated cross-sectoral protection of biodiversity in ABNJ.
This disturbing finding does beg the question why integrated
management has been too difficult to achieve? And/or, perhaps
has cooperatively protecting biodiversity simply not been a priority? The two case studies examined here would suggest, in the
view of the authors that both factors are at work.
4. Conclusions
4.1. Ten ingredients for success
From the experiences of OSPAR and the SSA, it has been found
several factors have helped lead towards success:
(1) Recognition of the need to identify and protect selected areas in
ABNJ as part of a global obligation is growing. In the course of
their respective processes, SSA and OSPAR have found a great
deal of intrinsic support and political good will for the
protection of iconic ecosystems in ABNJ.
(2) Agreed criteria and selection processes for MPAs based on
established biodiversity considerations are advantageous.
The on-going CBD EBSA process represents a global approach
using globally agreed-upon scientific criteria. While it is too
soon to judge whether EBSAs will be globally accepted by the
competent sectoral authorities, early experiences by OSPAR
and the SSA have indicated a need for greater integration of
EBSAs, and consideration of their scientific rationale, within
international institutions.
(3) Agreement on overarching principles and their interpretation
might well expedite progress. For example, even though the
1992 Rio Principles and the 1995 UN Fish Stocks Agreement,
inter alia mandate precaution, there remain widely differing
levels of acceptance, interpretation and application of the
precautionary principle/approach. In most organisations, harm
still has to be demonstrated before conservation measures will
be considered. However, for most ABNJ sites available science is
limited. In line with the precautionary principle, prudent use of
proxy/analogue evidence should be admissible on the basis that
if action is delayed key sites are despoiled. Without this leeway,
science is unlikely to meet the required burden of proof for the
vast majority of sites in ABNJ. The current case studies have
found that at the regional level, pragmatism may be more
important than time and effort required to renegotiate principles. This may be a task better suited to an international body
like the UN General Assembly.
(4) “Champions” are necessary – an organisation, State and/or
individual(s) intent on awareness raising, knocking on the
door and asking questions of decision-makers. Progress
140
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D. Freestone et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎
8
(5)
(6)
(7)
(8)
(9)
towards protection of biodiversity in ABNJ will not happen
without someone leading the way. This is a key role, requiring State Parties to relevant agreements to step up to the
challenge.
Targets and deadlines help focus hearts and minds. For OSPAR
Contracting Parties, the spur of a ministerial meeting, in a
year when the OSPAR network would be evaluated against its
own previous and global political commitments, in the
International Year of Biodiversity, ahead of CBD COP 10, were
all positive factors (albeit unquantifiable). Presumably, the
CBD Aichi Targets [5] and also the Rio þ20 target for a
decision on an negotiation process for a possible new instrument under UNCLOS [12] could likewise help progress.
However, as the experiences of both OSPAR and the SSA have
demonstrated, such targets are alone insufficient, without the
considerable effort and high level political commitment to
realise them.
Long-term institutional commitment is essential. Any one or a
combination of often related factors can take the momentum
out of the process, such as changing priorities and resource
allocation within an administration, as well as the failure of
any State or organisation to maintain institutional knowledge
over what is a complex and lengthy undertaking, as can occur
through the redeployment of key individuals, changes of
departmental organisation and changes of government
(including rotating chairs of international bodies).
Institutional and governmental “silos” need to be connected, as
that they are counter-productive to the holistic requirements
of ecosystem protection, and have to date impeded success in
ABNJ. The responsibilities of UNCLOS can cut across several
different State ministries and departments. As a precursor to
integrated maritime planning, better coordination amongst
governmental departments and across sectors has long been
recognised as necessary and remains a matter of urgency [39].
Strength can be achieved through collaboration amongst
competent authorities. This includes trust building, information exchange through Secretariats (e.g. early warning of
emergent issues), and opportunities for States to come
together to establish common positions within different Conventions. Organisations maintain independent epistemologies
and there is a lack of political will to think in an ecosystem
context beyond individual organisational mandates.
Ultimately, protection of biodiversity in ABNJ is a political
decision. Whilst legal advice and sound science are prerequisites, conservation decision-making also requires political
momentum. By their very nature, many conservation decisions can constrain the activities which sectoral bodies oversee. There is a pressing need to establish precedents that reaffirm that meeting international commitments to protect
biodiversity in ABNJ is a shared responsibility requiring
cooperation and coordination. Clearly this will have to go
beyond the current boilerplate text in the annual UNGA
oceans resolution. While the efforts of OSPAR and the SSA
are laudable, the considerable difficulties they have faced
have prevented them from yet fully becoming such precedents; instead, remaining as “works in progress.”
Global agreements should facilitate regional progress. In the
absence of a global instrument to protect of biodiversity in
ABNJ, it is inevitable that the mandate will be taken on in an
uncoordinated way at the regional level, such as the two very
different approaches taken by OSPAR and the SSA. For the
foreseeable future it is unlikely (and perhaps undesirable)
that biodiversity protection will be executed at the global
level, and hence the role of regional bodies will remain
important. Therefore, any future global agreement(s) should
seek to support, facilitate, and expand the work that is
already beginning at the regional level, encouraging consistency, commitments and compliance by Parties and NonParties alike. In addition, communications need to be clear so
that regional efforts are seen as complementary implementation mechanisms and test-cases for working through the
existing sectoral system, rather than as regional alternatives
to broader global discussions about frameworks for high seas
governance.
(10) As a first step, a procedure by which sectoral and regional bodies
report on their progress and measures concerning biodiversity
protection should be established. Such a procedure would
encourage such progress as well as providing the information
that could lead to the cooperation and coordination in the
implementation of management measures. Over time, this
could lead to a mechanism(s) through which existing competent authorities would develop joint measures, as required.
It is outside the scope of this paper to suggest how such a
global mechanism could be established, but on-going discussions of the BBNJ indicate that States are taking this challenge
seriously.
4.2. Looking ahead
The OSPAR and SSA experiences so far have illustrated how
protection of biodiversity in ABNJ can be incrementally
approached. In the context of international relations, progress
has been relatively positive, albeit some key objectives (such as
integrated management) remain unmet. How this cautious rate of
progress will be able to meet the increasing variability of Earth
system processes and the rapid expansion of human activities in
the ocean is unclear. Any alternative approach would likely have to
be transformational; i.e. changing the core nature and assumptions about the way that the global ocean is managed.
UN deliberations have been complemented but also complicated by a range of other initiatives on oceans such as the World
Ocean Assessment and development of Sustainable Development
Goals plus efforts to influence and/or accelerate protective efforts
such as the Global Ocean Commission and the UN Ocean Compact.
There is a need to establish leadership, integrating complementary
efforts, and providing a forum that reduces divisiveness. As was
championed by the EU, and supported by several others at BBNJ
2008, a two-pronged approach is likely the most sensible: to
establish structures to facilitate incremental improvement of
existing institutions, while at the same time proceeding down
the more ambitious road of fundamental marine governance
reform in the medium- to long-term [46]. The former has the
advantage of dealing with the familiar, particularly in the shortterm; whereas, the latter has the advantage of potentially much
greater efficiencies in how we co-exist on, and in, an increasingly
crowded ocean in the future.
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Forthcoming in Jill Barrett and Richard Barnes (eds.), UNCLOS at 30 and Beyond. British Institute of
International and Comparative Law, London, 2015.
GOVERNANCE OF AREAS BEYOND NATIONAL JURISDICTION:
AN UNFINISHED AGENDA OF THE 1982 CONVENTION ?
David Freestone*
I. INTRODUCTION
Nearly 50 per cent of the Earth’s surface is covered by marine areas beyond national jurisdiction.
These are the marine areas that are beyond the limits of the Exclusive Economic Zones
recognized by the 1982 United Nations Law of the Sea Convention (“the Convention”) and of
the continental shelf, which the Convention recognizes may extend beyond 200 nm to its outer
geomorphological limits.1 Since the finalization of the Convention, human activities in the ocean,
particularly in areas beyond national jurisdiction (“ABNJ”) have burgeoned, as have their
impacts.2 These impacts are not only the result of new activities but also of the unprecedented
increase of existing activities such as maritime transport, the laying of submarine cables (for
internet connections), interest in seabed exploration and mining, and, of course, fishing.
In the more than thirty years since the adoption of the Convention it has become clear
that the co-operative regime for ABNJ which the Convention seems to have envisaged, has not
materialised. This chapter looks at the limitations of the current ocean governance regime and
identifies important issues that need to be addressed more specifically in ABNJ, such as basic
principles of ocean governance, the conservation and sustainable use of marine biological
diversity, environmental impact assessment for new activities and the establishment of marine
protected areas (MPAs). It looks at developments within the United Nations (“UN”) system,
such as the establishment of the Ad Hoc Open-ended Informal Working Group to study issues
relating to the conservation and sustainable use of marine biological diversity beyond areas of
national jurisdiction (“BBNJ Working Group”) and proposals for a new implementation
agreement to the Convention which were also discussed at the UN Conference on Sustainable
Development in Rio de Janeiro in June 2012. It then looks in detail at the Sargasso Sea project –
which is designed to see what protection measures can be put in place to protect a unique
This chapter is a revised and updated version of D Freestone, ‘Can We Protect High Seas Ecosystems under
Current International Law? Lessons from the Sargasso Sea Project’ in M Ribeiro (ed), Proceedings of the International
Conference 30 Years after Signature of the United Nations Convention on the Law of the Sea: the protection of environment and the
future of the Law of the Sea (Coimbra Editora 2014). The author is grateful to both publishers for allowing him to
publish a version of this chapter in both volumes.
* The author is extremely grateful to Kate Killerlain Morrison, my Deputy Executive Director, for her help in
putting this chapter together. Some parts draw heavily upon the article we wrote together: D Freestone and K
Killerlain Morrison, ‘The Sargasso Sea Alliance: Seeking to Protect the Sargasso Sea’ (2012) 27 IJMCL 647. I am also
grateful to Kristina Gjerde, IUCN Senior High Seas Policy Adviser, for carefully reading the manuscript and for her
excellent comments. Thanks also to Olivier Yambo for assisting with references.
1 Art 76.
2 B Halpern et al, ‘A Global Map of Human Impact on Marine Ecosystems’ (2008) 319 (No 5865) Science 948; E
Ramirez-Llodra et al ‘Man and the Last Great Wilderness: Human Impacts on the Deep Sea’ (2011) 6(8) PLoS
ONE: e22588.
143
ecosystem in ABNJ using existing international institutions, without waiting for the UN to take
more comprehensive action.
II. THE REGIME ENVISAGED BY THE CONVENTION FOR AREAS BEYOND
NATIONAL JURISDICTION
Part VII of the Convention covers the rights and duties of States on the high seas.
Article 87 of the Convention provides for “Freedom of the high seas” making it clear that the
high seas are open to all States, whether coastal or landlocked. It then itemises six specific
freedoms, namely: freedom of navigation; freedom of overflight; freedom to lay submarine
cables and pipelines, subject to Part VI;3 freedom to construct artificial islands and other
installations permitted under international law, subject to Part VI; freedom of fishing, subject to
the conditions laid done in section 2;4 and freedom of scientific research, subject to Parts VI and
XIII.5 Article 87(1) also makes the point reiterated in detail in other provisions that these
freedoms are not unconditional. They may only be exercised “under the conditions laid down by
this Convention and by other rules of international law.” Article 87(2) reinforces the point that
these freedoms
shall be exercised by all States with due regard for the interests of other States in their
exercise of the freedom of the seas, and also with due regard for the rights under the
Convention with respect to the Area.
Having said that, the only specific additional restrictions that can be made to the exercise
of these rights are by international agreement that would be binding only on the States which are
party to them. Of course, Part XII of the Convention does impose general obligations in relation
to the Protection and Preservation of the Marine Environment, which extend to the high seas
and international seabed area. Article 192 obliges all States to “protect and preserve the marine
environment”6 and Article 194(5) specifies that measures under Part XII are to include “those
necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted,
threatened or endangered species and other forms of marine life.”7 Article 197 further obliges
States to
[C]o-operate on a global basis and, as appropriate, on a regional basis, directly or through
competent international organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent with this Convention,
for the protection and preservation of the marine environment, taking into account
characteristic regional features.
In Part XI, the Convention also establishes an international regime for the exploration
and exploitation of seabed mineral resources in ‘the Area’ overseen by the International Seabed
Authority (“ISA”).8 It designates the Area and its mineral resources as the Common Heritage of
Mankind, and mandates the ISA to administer the resources for the benefit of mankind. In
On the Continental Shelf.
Arts 116-120.
5 Part VI places limits on research activities on the continental shelf where it extends under the high seas. Part XIII
sets out general provisions and co-operative requirements concerning the conduct of marine scientific research.
6 Art 192.
7 Art 194(5).
8 Under Art 133, “resources” means “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath
the seabed including polymetallic nodules”. This is important given debates about the extent to which living
resources comprise part of the regime for the Area, or are subject to the freedom of the high seas.
3
4
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144
addition to provisions for the sharing of financial and other economic benefits from mining
activities, it also envisages the development of detailed rules and regulations for the prevention
of damage from mineral exploration and extraction activities and for the conservation of the
flora and fauna of the seabed.9 However, these rules do not apply to activities such as deep-sea
bottom fishing, marine scientific research, cable-laying or potential new activities such as ocean
fertilization and other forms of marine geo-engineering.10
A range of other global and regional treaties do regulate specific activities which take
place in ABNJ, such as fishing, dumping and navigation. But of course these detailed sectoral
treaties are only binding on States Parties. So, the problem of proper (ie integrated and generally
applicable) governance in ABNJ is exacerbated by the patchwork of treaties that exists. A
number of experts have conducted detailed reviews of existing organizations with jurisdiction
over activities in ABNJ which show that there are serious gaps in coverage.11 In relation to
sectoral activities, these gaps are both functional as well as geographic. This is not necessarily a
defect in the basic Convention regime itself, but it is a serious defect in its implementation.
In fact, the lacunae in implementation are vividly shown by the Convention’s provisions
relating to the monitoring and reporting of potentially polluting activities. These provisions,
which are quite rigorous, are based entirely on good faith implementation by States Parties; there
is no international process for receiving or reviewing these reports or even for publicizing them.
The Convention provides as follows:
Article 204(2): “… States shall keep under surveillance the effects of any activities which
they permit or in which they engage in order to determine whether these activities are
likely to pollute the marine environment.”
Article 205: “States shall publish reports … or provide such reports at appropriate
intervals to the competent international organizations, which should make them available
to all States.”
Article 206: “When States have reasonable grounds for believing that planned activities
under their jurisdiction or control may cause substantial pollution of or significant and
harmful changes to the marine environment, they shall, as far as practicable, assess the
potential effects of such activities on the marine environment and shall communicate
reports of the results of such assessments...”.
Although there are international treaty requirements for prior environmental impact assessment
for the permitting of human activities in some areas of the ocean, such as the Southern Ocean
under the Madrid Protocol12 or for some activities such as ocean dumping, this is very much the
Art 145.
See, eg: R Rayfuse, M Lawrence and K Gjerde, ‘Ocean Fertilisation and Climate Change: The Need to Regulate
Emerging High Seas Uses’ (2008) 23 IJMCL 297; K Scott, ‘Regulating Ocean Fertilization under International Law:
The Risks’ (2013) 2 CCLR 108
11 K Gjerde et al, Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine
Biodiversity
in
Areas
beyond
National
Jurisdiction
(IUCN
2008)
<http://cmsdata.iucn.org/downloads/iucn_marine_paper_1_2.pdf>. See also: D Freestone, ‘Problems of High
Seas Governance’ and K Gjerde, ‘High Seas Fisheries Governance: Prospects and Challenges in the 21st Century’ in
D Vidas and PJ Schei (eds) The World Ocean in Globalisation: Challenges and Responses (Martinus Nijhoff 2011). For an
excellent wider discussion of the ABNJ legal regime, see: R Warner, Protecting the Oceans beyond National Jurisdiction:
Strengthening the International Law Framework (Martinus Nijhoff 2009).
12 The Protocol on Environmental Protection to the Antarctic Treaty (signed in Madrid on October 4 1991 and
entered into force in 1998), (1991) 30 ILM 1455. Annex 1 is on Environmental Impact Assessment. For text see
http://www.ats.aq/documents/recatt/Att008_e.pdf.
9
10
3|Page
145
exception rather than the rule.13 The recent decision of the Parties to the London Convention
and Protocol,14 which establishes an assessment framework in relation to ocean fertilization, also
represent an important step forward on this front.15 Verlaan reports that in 2008 the London
Convention and London Protocol Parties defined and essentially prohibited Ocean Fertilization
(“OF”) except for legitimate scientific research.16 She further notes that “‘Legitimate scientific
research’ (LSR) is defined as ‘those [scientific research] proposals [for OF] that have been
assessed and found acceptable under the Assessment Framework.’”17 The Assessment
Framework, developed by the LC/LP joint Scientific Groups and adopted by the parties in 2010,
is a “tool . . . to determine if the proposed [OF] activity constitutes [LSR].”18 To constitute LSR,
the proposed OF activity must first demonstrate ‘proper scientific attributes’.19 In 2013, the
Parties further adopted resolution LP.4(8), thereby amending the Protocol to include marine
geoengineering activities. The amendments, adopted on 18 October 2013 by the Protocol
Parties, add a new Article 6bis which states that:
Contracting Parties shall not allow the placement of matter into the sea from vessels,
aircraft, platforms or other man-made structures at sea for marine geoengineering
activities listed in Annex 4, unless the listing provides that the activity or the sub-category
of an activity may be authorized under a permit.20
Despite these recent efforts to fill the lacunae on potentially polluting activities, much
work remains to done in relation to emerging new concerns in ABNJ. Recent research by the
Census of Marine Life and other projects has highlighted the huge impact that human activities
have already had on marine biodiversity and the importance which biodiversity at all trophic
levels plays in maintaining ocean ecosystem health and functions.21 This research also made it
clear that despite the strong and unequivocal obligations to protect the marine environment in
the Convention discussed above, insufficient attention is directed at conservation of marine
ecosystems outside areas of national jurisdiction. For example, experience at the national level
has demonstrated beyond doubt the beneficial effects that the establishment of protected areas
has on the conservation of biomass, even though these are often established in the face of
See: R Warner and S Marsden, Transboundary Environmental Governance: Inland, Coastal and Marine Perspectives (Ashgate
2012).
14 Resolution LC-LP.2(2010) on the Assessment Framework for Scientific Research Involving Ocean Fertilization,
adopted
on
14
October
2010.
Available
http://www.imo.org/OurWork/Environment/LCLP/EmergingIssues/geoengineering/Documents/OFassessment
Resolution.pdf. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972,
1046 UNTS 120; 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter, 2006 ATS 11.
15 See: P Verlaan, ‘Marine Scientific Research: its Potential Contribution to Achieving Responsible High Seas
Governance’ in D Freestone (ed) The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas
(Martinus Nijhoff 2013); P Verlaan, ‘Marine Scientific Research: its Potential Contribution to Achieving Responsible
High Seas Governance’ (2012) 27 IJMCL 805.
16 Verlaan (2013) ibid, 133. Ocean fertilization is defined as “… any activity undertaken by humans with the
principal intention of stimulating primary productivity in the ocean…” Resolution LC-LP.1(2008) on the
Regulation
of
Ocean
Fertilization,
para
2.
Available
www.imo.org/blast/blastData.asp?doc_id=14101&filename=1.do
17 Ibid, citing para 7 of Resolution LC-LP.1(2008).
18 Section 1.2 of the Assessment Framework. This is annexed to Resolution LC-LP.2(2010) above n 14.
19 Ibid, section 1.3.1. Res. LC-LP.2(2010). See further Verlaan (2012) (n 15) 807-808.
20
See
further
http://www.imo.org/OurWork/Environment/PollutionPrevention/SpecialAreasUnderMARPOL/Pages/Default.a
spx See also passim CMG Vivian, Brief Summary of Marine Geoengineering Techniques (CEFAS February 2013).
21 R Danovaro et al, ‘Exponential Decline of Deep-Sea Ecosystem Functioning Linked to Benthic Biodiversity Loss’
(2008) 18 Current Biology 1; and references at n 2.
13
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strident opposition from user groups, particularly fishermen.22 General international law, and
indeed the Convention itself, does not provide a mechanism for the establishment of
conservation or other areas on the high seas that would have objective status and would thus be
binding on all States.
An important result of the sectoral approach in the treaty regimes applicable to ABNJ is
that although the parties to all these treaties must have regard to the sweeping obligation of
Article 192 to protect and preserve the marine environment, the modalities by which this is done
vary widely from regime to regime. Each sectoral regime has its own distinctive protection
mechanisms and assesses differently the factors that need to be taken into account; the result is a
plethora of distinct sectoral regimes designed to protect specific areas of the ocean from
individual sector-specific risks. Examples abound, with a corresponding welter of acronyms:
MARPOL 73/7823 envisages the establishment of ‘Special Areas’ of the ocean, in which more
rigorous regimes apply for the discharge of various substances from vessels. The International
Maritime Organization (“IMO”) also envisages the designation of Particularly Sensitive Sea
Areas (“PSSAs”) to denote areas of particular vulnerability to shipping activities,24 although none
have to date been established in the high seas.25 Regional Fisheries Management Organisations
(“RFMOs”) envisage protection measures, including closing areas for fisheries management
reasons. As a result of pressure from the UN General Assembly (“UNGA”), States and RFMOs
were called upon to protect marine biodiversity, including ‘vulnerable marine ecosystems’ from
significant adverse impacts of deep-sea bottom trawling.26 In August 2008, the FAO’s
Committee on Fisheries adopted International Guidelines for the Management of Deep-Sea
Fisheries in the High Seas which provide criteria for identifying ‘Vulnerable Marine Eco-systems’
and outline procedures for preventing significant adverse impacts from the impacts of bottom
trawling including closure of areas and prior environmental impact assessments. 27 However,
UNGA reviews recognize that despite some progress, much work remains to be done to
effectively implement these procedures and RFMOs have yet to adopt similar provisions with
respect to vulnerable marine species in the superjacent water column.28
22 There is wide range of literature on this. For a recent examples see SE Lester et al, ‘Biological effects within notake marine reserves: a global synthesis’ (2009) 384 Marine Ecology Progress Series 33–46; PB Fenberg et al, ‘The
science of European marine reserves: Status, efficacy, and future needs’ (2012) 36 (5) Marine Policy 1012–102; K
Grorud-Colvert et al, ‘Marine Protected Area Networks: Assessing Whether the Whole Is Greater than the Sum of
Its Parts’ (2014) 9(8) PLoS ONE 9: e102298; GJ Edgar et al, ‘Global conservation outcomes depend on marine
protected areas with five key features’ (2014) 506 Nature 216–220.
23 International Convention for the Prevention of Pollution by Ships, 1973/78 (1978) 17 ILM 546.
24 IMO Assembly Resolution A.982(24) Revised guidelines for the identification and designation of Particularly Sensitive Sea
Areas
(PSSAs).
Further
details
at:
http://www.imo.org/OurWork/Environment/PollutionPrevention/PSSAs/Pages/Default.aspx; also see: K Gjerde
and D Freestone (eds) ‘Special Issue: Particularly Sensitive Sea Areas: an Important Environmental Concept at a
Turning Point’ (1994) 9 IJMCL 431.
25 Although MARPOL Special Areas have been established in ABNJ eg in Antarctica. See also J Roberts et al,
‘Area-based Management on the High Seas: Possible Application of the IMO’s Particularly Sensitive Sea Area
Concept’ (2010) 25 IJMCL 483-522.
26 UNGA Res 59/25 (17 November 2004) para 66; UNGA Res 61/105 (8 December 2006) paras 80-90.
27 FAO, International Guidelines for the Management of Deep-sea Fisheries in the High Seas (Rome 2009).
28 UNGA Res 64/72 (4 December 2009) para 118. Reports on implementation of these obligations have been
prepared, inter alia, by IUCN and the Deep Sea Conservation Coalition, see M Gianni, Review of the Implementation of
the UNGA Agreement to Protect Deep-sea Ecosystems on the High Seas (Deep Sea Coalition 2009). Available at
<www.savethehighseas.org>. More recently see G Wright et al, Advancing marine biodiversity protection through regional
fisheries management: a review of high seas bottom fisheries closures. Working Paper 14/14 (IDDRI Paris 2014). Available
athttp://www.iddri.org/Publications/Collections/Idees-pour-ledebat/WP1414_GW%20et%20al_fisheries%20closures%20ABNJ.pdf
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Various protocols to the Regional Seas treaties envisage the establishment of Specially
Protected Areas (“SPAs”) and in the Mediterranean, Specially Protected Areas of Mediterranean
Importance (“SPAMIs”).29 The International Sea Bed Authority (“ISA”) has also recently
recognised Areas of Particular Environmental Interest (“APEIs”) in relation to work in the
Clarion-Clipperton Zone in the Pacific.30 In addition, over the past few years, the Parties to the
Convention on Biological Diversity (“CBD”) have developed a process to describe Ecologically
or Biologically Significant Areas (“EBSAs”) to inform and advise sectoral managers. This
process is discussed in more detail below.31
While all these initiatives are to be welcomed, existing measures are still essentially monosectoral and designed to protect from specific sectoral threats. There is still no mechanism to
designate an area of the high seas as a marine protected area, allowing management planning for
the area and protection from a suite of threats or from cumulative threats, or even to preserve
important marine ecosystems in a precautionary way for future generations in the way that we
take for granted on land (or in coastal waters). Given that the States participating in these
sectoral processes are usually the same, the “silo” or “stovepipe” approach of national
governments, where different ministries often have difficulty liaising with each other, also
permeates the international arena. Thus, meetings of fisheries management bodies attract a
different epistemic community from that attending IMO meetings, or meetings of the ISA
bodies. They each prefer their own brand of protection measures, regulating a single issue such
as fishing, marine discharges or seabed prospecting, and exercising firm, but different, controls
on the way that these restrictions are applied. This is not the sort of situation which Article 197
of the Convention, with its general instruction to co-operate, seems to have envisaged.
Having said that, some progress has been made at a regional level towards the
establishment of MPAs in ABNJ that come within the jurisdictional areas of regional
environment agreements. In 2002, the Johannesburg Plan of Implementation, agreed at the
World Summit on Sustainable Development (WSSD), set out the goal of establishing a network
of representative MPAs by 2012.32 Furthermore, as Scott reminds us, ‘States party to the 1992
Convention on Biological Diversity (CBD) endorsed this strategy in 2004 and, furthermore,
The first such Protocol was the 1982 Protocol on Specially Protected Areas to the 1976 Barcelona Convention for
the Protection of the Mediterranean Sea against Pollution (see below n 36). This was revised in 1995 to reflect the
1992 Biodiversity Convention and the more cutting edge approach of the 1990 Kingston Protocol on Specially
Protected Areas and Wildlife (SPAW) to the Convention for the Protection and Development of the Marine
Environment in the Wider Caribbean Region (“Cartagena Convention”). For text see D Freestone, ‘Specially
Protected Areas and Wildlife in the Caribbean’ (1990) 5 International Journal of Estuarine and Coastal Law 362-382,
369. East Africa and the South East Pacific are also covered by similar measures. See Protocol Concerning
Protected Areas and Wild Fauna and Flora in the Eastern African Region 1985, available at
http://www.unep.org/NairobiConvention/The_Convention/Protocols/Protocol_Protected_Areas.asp)
and
Protocol for the Conservation and Management of Protected Marine and Coastal Areas of the South-East Pacific
(1989).
30 When the ISA Council approved the environmental management plan for the Clarion-Clipperton Zone, it decided
that “… for a period of five years from the date of the present decision or until further review by the Legal and
Technical Commission or the Council, no application for approval of a plan of work for exploration or exploitation
should be granted in areas of particular environmental interest referred to in the annex”’ ( Decision of the Council
relating to an environmental management plan for the Clarion-Clipperton Zone, ISBA/18/C/22 26 July 2012.
Available at http://www.isa.org.jm/sites/default/files/files/documents/isba-18c-22_0.pdf
31 See also Fitzmaurice on regional protection measures for the Baltic Sea, Chapter x, page 000 below.
32 Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August-4 September
2002. A/CONF.199/20* Plan of Implementation (2002) at para 32(c), at http://daccess-ddsny.un.org/doc/UNDOC/GEN/N02/636/93/PDF/N0263693.pdf?OpenElement
29
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included the goal of protecting ten per cent of the world’s ecological regions by 2012 within their
Strategic Plan.’33 In 2010, this was further elaborated in the CBD Aichi Target 11:
[b]y 2020, at least 17 per cent of terrestrial and inland water areas and 10 per cent of
coastal and marine areas, especially areas of particular importance for biodiversity and
ecosystem services, are conserved through effectively and equitably managed,
ecologically representative and well-connected systems of protected areas and other
effective area-based conservation measures, and integrated into the wider landscape and
seascape.34
Where regional treaty regimes do envisage the establishment of MPAs in high seas areas,
there has been some progress, as in the OSPAR region,35 the Mediterranean36 and the Southern
Ocean.37 In the Southern Ocean, as Scott notes, the South Orkney Islands southern shelf MPA
covers just under 94,000 square kilometres of high seas within which fishing, scientific research
related to fishing, and discharges and dumping from fishing vessels are regulated”.38 Within this
area, steps have been taken to develop MPAs,39 although the principal concern is control of
fisheries, rather than a broader spatial management of activities. In the overwhelming majority of
ocean areas beyond national jurisdiction, however, there is no such regional framework.
These developments have led to discussions of this issue within the UNGA, where
mechanisms to improve the conservation and management of marine biodiversity in ABNJ have
been studied for more than a decade.
III. GOVERNANCE OF AREAS BEYOND NATIONAL JURISDICTION: DEBATE
WITHIN THE UN GENERAL ASSEMBLY
In 2004, in order to address the full range of issues particularly related to the conservation of
biodiversity in areas beyond national jurisdiction, the UNGA agreed to the recommendation of
the UN Informal Consultative Process on the Oceans and the Law of the Sea (“UNICPOLOS”)
to establish an Ad Hoc Open-ended Informal Working Group to study issues relating to the
CBD COP 7 Decision VII/30 Strategic Plan: future evaluation of progress, Annex II, Goal 1.1; K Scott,
‘Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas’ (2012) 27
IJMCL 849, 850.
34 For text see http://www.cbd.int/sp/targets/rationale/target-11/
35 Convention for the Protection of the Marine Environment of the North-East Atlantic (adopted 22 September
1992, entered into force 25 March 1998) (1992) 32 ILM 1069 (“OSPAR Convention”).
36 Convention for the Protection of the Marine Environment and Coastal Region of the Mediterranean (adopted 16
February 1976, amended 10 June 1995, entered in force 9 July 2004) 1102 UNTS 27 (“Barcelona Convention”);
Protocol concerning Mediterranean Specially Protected Areas and Biodiversity (adopted 10 June 1995, entered into
force 12 Dec 1999) 2102 UNTS 203.
37 Commission for the Conservation of Antarctic Marine Living Resources (“CCAMLR”), Conservation Measure
91-03 (2009) “Protection of the South Orkney Islands southern shelf” and Conservation Measure 91-04 (2011)
“General framework for the establishment of CCAMLR Marine Protected Areas”. Both texts are available on the
CCAMLR website at: http://www.ccamlr.org/en/conservation-and-management/conservation-measures
38 Scott (n 33) 852 (footnotes omitted).
39 Report of the 2007 Workshop on Bioregionalisation of the Southern Ocean (Brussels, Belgium, 13 to 17 August
2007), available at http://www.ccamlr.org/en/system/files/e-sc-xxvi-a9.pdf; Report of the Workshop on Marine
Protected Areas (Brest, France, 29 August to September 2011) para 2.2, available at
https://www.ccamlr.org/en/system/files/e-sc-xxx-a06.pdf
33
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conservation and sustainable use of marine biological diversity beyond areas of national
jurisdiction.40
Several important proposals have been discussed at these meetings including a European
Union proposal for a new implementing agreement to develop a more specific framework to
address conservation and sustainable use of marine biodiversity beyond national jurisdiction
within the Convention framework.41 Issues highlighted in the discussions have included the
absence of a global instrument regulating the establishment and monitoring of MPAs in ABNJ
(even though protected areas have proven to be extremely effective in maintaining biodiversity in
coastal contexts), the absence of comprehensive environmental impact assessments (“EIAs”) for
new activities in ABNJ, as well as the lack of co-ordination between those international
organizations that are charged with regulating specific sectoral activities.42
Other States have indicated that improved implementation should be the first priority,
but not all have provided their views on what might be done to enhance implementation with
respect to biodiversity conservation in general. Unfortunately, the lively debates on improved
governance have been overshadowed by controversy over the future regime for exploitation of
marine genetic resources beyond national jurisdiction.43 The G77 and China have argued that the
common heritage of mankind concept that the Convention applies to deep seabed minerals,44
should also apply to the living resources of the deep ocean floor, many of which may have
important industrial and pharmaceutical potential. They argue that, rather than being subject to
the open access regime of the high seas as advocated by some States, if the drafters of the
Convention had been aware of these resources – rather than simply being aware of the famous
‘manganese nodules’ – they would doubtless have specifically included these living resources
within the deep sea bed regime.45
These polarised positions produced stalemate in the discussions at the BBNJ Working
Group. However, at the May 2011 Meeting there was something of a breakthrough. It was
agreed that the issues of protection of biodiversity through conservation and management tools
such as EIAs and MPAs should be linked with issues relating to access and benefit sharing of
This Working Group held its first meeting in 2006, with further meetings held in 2008, 2010, 2011, 2012, 2013
and 2014. A final meeting was held in January 2015. For details of the meetings see the UN website at:
http://www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm
41
See
reports
of
meetings
at
http://www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm
42 It has also been suggested that the international community should reaffirm some of the basic principles that have
been agreed in a wide range of existing instruments, including the Convention, in relation to national activities in
ABNJ. At the IUCN 4th World Conservation Congress, in Barcelona on 7 October 2008, IUCN President Valli
Moosa of South Africa chaired a plenary session presenting the IUCN ‘Ten Principles of High Seas Governance.’
For a more detailed exposition of these principles and their legal basis see D Freestone, ‘Principles Applicable to
Modern Oceans Governance’ (2008) 23 IJMCL 385; and D Freestone, ‘Modern Principles of High Seas
Governance: The Legal Underpinnings’ (2009) 39 International Environmental Policy and Law 44.
43 For an excellent assessment of the issues and potential of bio-prospecting, see: D Leary et al, ‘Marine Genetic
Resources: A Review of the Scientific and Commercial Interest’ (2009) 33 Marine Policy 183.
44 See Art 138 UNCLOS: “The Area and its resources are the common heritage of mankind”. Art 133 UNCLOS
further provides that resources means “all solid liquid or gaseous mineral resources in situ in the Area at or beneath
the seabed, including polymetallic nodules.”
45
For
records
of
these
discussions
see:
http://www.un.org/depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm
For a general flavor of various concerns, see particularly the Co-Chairpersons’ summary of discussion, appended to
Letter dated 16 March 2010 from the Co-Chairpersons of the Ad Hoc Open-ended Informal Working Group to the
President of the General Assembly, UN Doc A/65/68 (17 March 2010). Available at: http://daccess-ddsny.un.org/doc/UNDOC/GEN/N10/277/20/PDF/N1027720.pdf?OpenElement
40
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marine genetic resources.46 This was discussed further at the 2012 BBNJ Working Group
meeting,47 and at the UN Conference on Sustainable Development (Rio + 20) in June 2012. The
Outcome Document of the Rio Conference, entitled ‘The Future We Want’48 contained the
following commitment:
We recognize the importance of the conservation and sustainable use of marine
biodiversity beyond areas of national jurisdiction. We note the ongoing work under the
General Assembly of an ad hoc open-ended informal working group to study issues
relating to the conservation and sustainable use of marine biological diversity beyond
areas of national jurisdiction. Building on the work of the ad hoc working group and
before the end of the sixty-ninth session of the General Assembly we commit to address,
on an urgent basis, the issue of the conservation and sustainable use of marine biological
diversity of areas beyond national jurisdiction, including by taking a decision on the
development of an international instrument under the United Nations Convention on
the Law of the Sea.49
Acting on this undertaking, the UNGA in Resolution 68/70 requested the Secretary-General to
convene three more meetings of the BBNJ Working Group.50 These took place between 1-5
April and 16-19 June 2014 and 20-23 January 2015. At that last meeting the Working Group
decided, after protracted debate, to recommend to the UNGA that it: “Decide to develop an
international legally binding instrument under the Convention on the conservation and
sustainable use of marine biological diversity of areas beyond national jurisdiction…”.51 The
recommendations of the Working Group also envisage the establishment of a preparatory
committee, to begin work in 2016 and to report to the UNGA in 2017 with recommendations
on a text. The proposed negotiations will address the topics identified in the package agreed by
the BBNJ Working Group in 2011, namely the conservation and sustainable use of marine
biodiversity in areas beyond national jurisdiction, in particular, together and as a whole, marine
genetic resources, including questions on the sharing of benefits, measures such as area-based
management tools, including marine protected areas, environmental impact assessments and
capacity building and the transfer of marine technology.52
As indicated above, the Working Group has been discussing this possible new multilateral
instrument for more than a decade. In 2010, the Sargasso Sea project evolved out of some
frustration at the slow rate of progress and a desire to see what can or cannot be done to protect
an iconic high seas ecosystem using the existing international legal mechanisms. The Sargasso
Sea project therefore is intended to be an important case study of both the strengths and
limitations of the existing system of high seas governance.
Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues relating to the
conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction and Co-Chairs’
summary of discussions, UN Doc A/66/119 (30 June 2011). Available on the UN website at: http://daccess-ddsny.un.org/doc/UNDOC/GEN/N11/397/64/PDF/N1139764.pdf?OpenElement
47 Held in New York, 7-11 May 2012; see: Agenda UN Doc A/AC.276/5 (7 May 2012). http://daccess-ddsny.un.org/doc/UNDOC/GEN/N12/332/60/PDF/N1233260.pdf?OpenElement
46
Para 162 of the Annex to UNGA Res 66/288 (27 July 2012), UN Doc A/RES/66/288 (11 September 2012).
Para 200 of UNGA Res 68/70 Oceans and law of the sea (9 December 2013) UN Doc A/RES/68/70 (27
February 2012).
51 Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues relating to the
conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. See UN Doc
A/69/780* 1(3 February 2015)
52 Ibid, para 6.
49
50
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IV. THE SARGASSO SEA PROJECT
The Sargasso Sea is a two million square nautical mile ecosystem in the North Atlantic. It is
named for the two species of holopelagic algae which reproduce solely by fragmentation without
contact with land (Sargassum natans and Sargassum fluitans) and accumulate in the North Atlantic
Subtropical Gyre where they form into large mats or windrows. The Sargasso Sea is thus the
world’s only sea without coasts; only the tiny islands of Bermuda have direct coastal frontage.
The Sargasso Sea is bounded on all sides by the clockwise flow of major ocean currents: the Gulf
Stream and North Atlantic Drift form the western and northern boundaries, the Canary Current
forms a more diffuse eastern boundary, and the North Equatorial Current and Antilles Current
form the southern boundary. Just as the currents vary, so too do the boundaries of the Sargasso
Sea.
The Sargasso Sea was first written about by Christopher Columbus. In September 1492
on his first voyage he recorded “much weed …in some place so thick that it actually held back
the ships.”53 Nowadays mats as big as those Columbus saw are rare, possibly as a result of
increased maritime traffic through the area once the change from sail to motorised propulsion of
vessels overcame mariners’ fear of their vessels becoming becalmed in the gyre. Despite the
increasingly rare occurrence of such large algal mats, the Sargasso Sea is still a unique ecosystem.
The Sargassum is home to a range of endemic species and the Sargasso Sea is a major feeding and
migration route for a number of vulnerable, threatened and endangered species, including sea
turtles, and humpback and sperm whales. The Sea is also vital for commercially important
species of tuna and billfish. It is the only place in the world where the catadromous anguillid eels
spawn - the American eel (Anguilla rostrata) and the critically endangered European eel (Anguilla
anguilla).54
Bermuda, at the centre of the Sargasso Sea, is an overseas territory of the United Kingdom. It
claims a 200 nm EEZ of some 180,000 square nm.55 Beyond the Bermudian EEZ, however, the
remainder of the Sargasso Sea is largely beyond national jurisdiction.56 There is no regional
marine environmental treaty framework (like OSPAR), or regional fisheries agreement (like the
North East Atlantic Fisheries Commission) in place for this part of the Atlantic. There are
Thursday, 20 September 1492 he recorded in his log that: “Today I changed course for the first time since
departing Gomera because the wind was variable and sometimes calm. I first sailed west by north and then WNW,
making 21 or 24 miles… The sailors caught a little fish, and we saw much weed of the kind I have already
mentioned, even more than before, stretching to the north as far as you can see. In a way this weed comforted the
men, since they have concluded that it must come from some nearby land. But at the same time, it caused some of
them great apprehension because in some places it was so thick that it actually held back the ships.” The following
day, Friday, 21 September 1492 he reported “At sunrise we saw so much weed that the sea seemed to be a solid mat,
coming from the west.” My thanks to Dr William Curry and Professor Brian Lapointe for this reference. C
Columbus (trans CR Markham) Journal of Christopher Columbus (during his first voyage 1492-93): and documents relating to the
voyages of John Cabot and Gaspar Corte Real (Ashgate 2010) 26-7.
54 The European eel is protected by EC Regulations. Council Regulation (EC) No. 1100/2007 of 18 September
2007 establishes measures for the recovery of the stock of European eel. OJ 2007 L248/17.
55 In June 1996, the Governor of Bermuda published a Proclamation declaring a 200 nm EEZ around Bermuda,
measured from the territorial sea coastal baselines (set out in the Bermuda (Territorial Sea) Order in Council of
1988), to come into force at the same time as the 1996 Bermuda Fisheries Amendment Act (1996/10). Bermuda
declared a 200 nm fishing zone in May 1977 (Proclamation No 202) and a 200 nm EEZ in June 1996 (Fisheries
Amendment Act 1996:10)
56 Depending on what is defined to be the geographical extent of the Sargasso Sea, it can be taken to extend into the
EEZs of the United States to the East and the Northern Antillean islands to the south. The Alliance commissioned
a new map based on criteria such as ocean current and eddy occurrence, remote sensing of Sargassum weed, and
historical mapping, which excludes national EEZs. It calls this area the Sargasso Sea Study Area. The map can be
viewed at http://www.sargassoalliance.org/where-is-the-sargasso-sea.
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however a number of wider sectoral treaty regimes governing a wide range of activities in the
Sargasso Sea, which are discussed in detail below. In March 2014, Bermuda hosted an
international meeting of government representatives to sign the Hamilton Declaration on
Collaboration for the Conservation of the Sargasso Sea.57 The Hamilton Declaration – also
discussed further below - established a regular Meeting of Signatories and envisaged the
establishment of a Sargasso Sea Commission to “exercise a stewardship role for the Sargasso Sea
and keep its health, productivity and resilience under continual review”.58 This is designed to be a
new paradigm for high seas conservation, based on voluntary intergovernmental collaboration.59
A. The Sargasso Sea Alliance
The Sargasso Sea Commission essentially replaced the Sargasso Sea Alliance (“the Alliance”) that
was formed in 2010 under the leadership of the Government of Bermuda to bring together
governments and non-government actors with a commitment to environmental protection in the
Sargasso Sea. Other members of the Alliance were the International Union for Conservation of
Nature (IUCN), Woods Hole Oceanographic Institution, the WWF International, the Marine
Conservation Institute, the Mission Blue/Sylvia Earl Foundation, together with the Bermuda
Underwater Exploration Institute, the Bermuda-based Atlantic Conservation Partnership and the
famous Bermuda Institute for Ocean Sciences. The small secretariat, headed by an Executive
Director, was established in 2010 in the IUCN office in Washington DC. The Bermuda Ministry
of Environment has the Government lead on the project.60
The Alliance had three key objectives: to build a partnership to secure international
recognition of the ecological significance of the Sargasso Sea and the threats that it faces; to use
existing regional, sectoral and international organizations to secure a range of protective
measures for all or parts of the Sargasso Sea to address key threats; and to use the process as an
example of what can and cannot be delivered through existing institutions in ABNJ.61
The general strategy of the Alliance was therefore to identify the most important threats
to the Sargasso Sea ecosystem and to address these by seeking appropriate protection measures
within the relevant existing international or regional sectoral organization. Possible threats from
shipping or vessel source pollution would be addressed through the IMO; threats from fishing
through the only two relevant fishing organisations – the International Commission for the
Conservation of Atlantic Tunas (“ICCAT”) and (for the small area of the Sargasso Sea above
35°N) the North-west Atlantic Fisheries Organisation (“NAFO”); Seabed mining issues through
the ISA. No one appears to have attempted to do this before: to use the range of existing bodies
to attempt to put complementary sectoral measures in place for an important area beyond
national jurisdiction. Hence, the project has attracted a lot of international attention.
The leadership of the Government of Bermuda is crucial to this project because the
project involves engaging primarily with intergovernmental bodies. Bermuda is an overseas
Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea, adopted 11 March 2014,
reproduced in D Freestone and KK Morrison, ‘The Signing of the Hamilton Declaration on Collaboration for the
Conservation of the Sargasso Sea: A new paradigm for high seas conservation?’ (2014) 28 IJMCL 345 at 354.
58 Annex II, para (a), Hamilton Declaration, ibid at 361.
59 Freestone and Morrison, (n 57) 345-6.
60 In 2010 this was the Ministry of Environment and Strategic Planning. In 2014, after a reshuffle, it was combined
with Health and Seniors – currently it is the Ministry of Health, Seniors and the Environment.
61 See generally, D Freestone and KK Morrison, ‘The Sargasso Sea Alliance: Seeking to Protect the Sargasso Sea’
(2012) 27 IJMCL 647; D Freestone, ‘The Sargasso Sea Alliance: Working to Protect the “Golden Floating Rain
Forest of the Ocean.”’ (2014) 44 Environmental Policy and Law 151.
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territory of the United Kingdom. It is internally self-governing, but its head of state is Queen
Elizabeth II, whose representative is the Governor. Under a general letter of entrustment signed
by the UK Foreign Secretary, Bermuda has limited rights to negotiate and conclude bilateral and
multilateral agreements in certain areas of external affairs, in relation to specific subject areas.62
International treaties to which the UK is party may, depending on their terms, be extended by
the UK to Bermuda at its request.63 This can result in some interesting situations, for example, in
relation to ICCAT. The UK is no longer a party to ICCAT in respect of its metropolitan
territory; the EU has exclusive fishery competence for its Member States and has been a member
of ICCAT since 1997.64 The UK retains membership only in relation to its overseas territories,
including Bermuda, which may be allocated separate allowable catch quotas under ICCAT. The
UK is a party to the Convention on Biological Diversity (CBD), but its ratification has not been
extended to Bermuda. Bermuda is not a separate member of the IMO. Since 2003, Bermuda has
been an Associate Member of CARICOM – the Caribbean Economic Community.65
Support from the UK was therefore crucial to Bermuda being able to make
representations to international organisations with competence to regulate sectoral activities. The
UK Foreign and Commonwealth Office requested a high quality peer-reviewed scientific study
justifying the importance of the Sargasso Sea before lending its support. This report was
published in late 2011, after review by the Bermudian Cabinet and the UK government.66 In July
2012, in response to a Parliamentary Question from Mr Zac Goldsmith MP, the UK Minister for
Overseas Territories, Mr Henry Bellingham stated that the Government of Bermuda supported
the proposal to provide appropriate protection for the Sargasso Sea and that the British
Government, the Sargasso Sea Alliance and the Government of Bermuda are working together
to this end through the appropriate forums.67 So what are those “appropriate forums”? The
following section looks at the progress that has been made to date using existing international
legal frameworks.
B. Relevant International Organizations
1. United Nations
The Alliance has hosted or co-hosted a number of side events at UN Law of the Sea meetings,
including the BBNJ Working Group and UNICPOLOS, discussed above. In December 2012,
the work of the Alliance was recognised in the annual UNGA Resolution on the law of the sea,
which noted “the efforts of the Sargasso Sea Alliance, led by the Government of Bermuda, to
Letter from Secretary of State to Governor of Bermuda, 30 September 2009. See I Hendry and S Dickson, British
Overseas Territories Law (Hart 2011) 237-239. See also the text of the letter at 243-245.
63 Hendry and Dickson, ibid, 253-257.
64 Since 14 November 1997. See http://www.iccat.int/en/contracting.htm
65 Since 2 July 2003.
66 Published as D Laffoley et al, The Protection and Management of the Sargasso Sea: The Golden Floating Rainforest of the
Atlantic Ocean. Summary Science and Supporting Evidence Case (Sargasso Sea Alliance 2011). Available at
http://www.sargassoalliance.org/storage/documents/Sargasso.Report.9.12.pdf
67
Bermuda Royal Gazette, ‘UK supporting efforts to create marine reserve.’ 13 July 2013,
http://www.royalgazette.com/article/20120713/NEWS07/707139917 See also House of Commons
Environmental Audit Committee's enquiry into MPAs, especially its focus on the UK OTs. See EAC's 1st report:
http://www.publications.parliament.uk/pa/cm201415/cmselect/cmenvaud/221/22102.htm;
and
the
Government's
response
Sept
2014:http://www.publications.parliament.uk/pa/cm201415/cmselect/cmenvaud/651/65102.htm; and the EAC
report on Sustainability in the UKOTs, Jan 2014, which has a section on MPAs:
http://www.publications.parliament.uk/pa/cm201314/cmselect/cmenvaud/332/332.pdf
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raise awareness of the ecological significance of the Sargasso Sea.”68 This language was the result
of a joint proposal from South Africa, the UK and the USA. In 2013 the same language was
included in the annual UNGA Resolution, with the support of the UK, US and Bahamas.69 In
2014 South Africa and Bahamas, with the support of the UK, US and Monaco, proposed more
extensive language, but encountered opposition; however the same wording as in previous years
was included in the 2014 Resolution.70
2. Convention on Biological Diversity
At the tenth session of the Conference of Parties (COP 10) to the CBD in Nagoya, Japan, the
parties decided to initiate a science-driven process to identify EBSAs.71 To that end a series of
workshops have been organised by the CBD Secretariat in association with other organisations
to identify such areas.72 At the Wider Caribbean and Western Mid-Atlantic Regional Workshop
on EBSAs held in Recife, Brazil in February/March of 2012, the Government of Bermuda, on
behalf of the Alliance, put forward a proposal for the ‘description’ of the Sargasso Sea as an
EBSA. The case for the Sargasso Sea as an EBSA was discussed and adopted by the scientists at
the workshop, then forwarded as part of the Workshop Report to the CBD’s Subsidiary Body on
Scientific, Technical and Technological Advice (SBSTTA) meeting in April 2012, and, ultimately,
the Eleventh Session of the Conference of Parties (COP 11) in Hyderabad in October 2012,
where it was officially described as an EBSA.73
The COP decision makes it clear that application of the scientific criteria for ecologically
or biologically significant marine areas is a scientific and technical exercise. It emphasizes that the
selection of appropriate conservation and management measures is a matter for States and
competent intergovernmental organizations, in accordance with international law.74 But it does
request the Executive Secretary to include the summary reports on the description of areas that
meet the criteria for ecologically or biologically significant marine areas, in the Repository
maintained by the CBD Secretariat,75 and to submit them to the UNGA and particularly its
BBNJ Working Group, as well as to submit them to Parties, other Governments and relevant
international organizations.76
It is clear from this that a ‘description’ of an area as an EBSA has in itself no legal
significance, but it is intended that the CBD process will be taken into account by other
UNGA Res 67/78 (11 December 2012), UN Doc A/67/78*, para 199.
UNGA Res 68/70 (9 December 2013), UN Doc A/68/70, para 215
70 UNGA Res 69/245 (1 December 2014) UN Doc A/69/245, para 231.
71 “[The] primary objective [is] to facilitate the description of ecologically or biologically significant marine areas
through application of scientific criteria in annex I of decision IX/20 as well as other relevant compatible and
complementary nationally and intergovernmentally agreed scientific criteria, as well as the scientific guidance on the
identification of marine areas beyond national jurisdiction, which meet the scientific criteria in annex I to decision
IX/20”.” CBD Decision X/29, para 36. Available at: http://www.cbd.int/decision/cop/?id=12295
72 Workshops have been held in virtually all maritime regions. For a full list see http://www.cbd.int/meetings/
73
UNEP/CBD/COP/DEC/XI/17
(5
December
2012)
23,
item
13;
http://www.sargassoalliance.org/storage/documents/cop-11-dec-17-en.pdf.
74 As stated in para 26 of Decision X/29 (n 71).
75 Ibid, para 36. See the EBSA Repository at http://www.cbd.int/ebsa/
76 This is reiterated in Decision X/17 Marine and coastal biodiversity: ecologically or biologically significant marine
areas.
Doc
UNEP/CBD/COP/DEC/XI/17
of
5
December
2012,
para
6.
See
http://www.cbd.int/doc/decisions/cop-11/cop-11-dec-17-en.pdf. It further requested the Executive Secretary to
submit them to the Ad Hoc Working Group of the Whole on the Regular Process for Global Reporting and
Assessment of the State of the Marine Environment, including Socio-economic Aspects, as well as to provide them
as a source of information to United Nations specialized agencies.
68
69
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international processes charged with managing and conserving ocean resources. For example,
while the COP to the CBD does not have competence to designate MPAs, information shared
through the EBSA identification process may help strengthen the scientific basis for protective
measures through other regional or sectoral entities. The Alliance has therefore taken the
“description” of the Sargasso Sea as an EBSA as a significant success in its aim of achieving
international recognition of the ecological significance of the Sargasso Sea. It has used this EBSA
description in making approaches to other international organizations – as the CBD process
envisages.77
3. North West Atlantic Fisheries Organisation
The first opportunity to utilise the Sargasso Sea EBSA classification arose in the context of the
34th Annual Meeting of the Fisheries Commission of the North West Atlantic Fisheries
Organisation (“NAFO”), meeting in St Petersburg, Russian Federation, 17-21 September 2012.
The northern edges of the Sargasso Sea classified as an EBSA and of the Bermudian EEZ
extend beyond the 35°N latitude demarking the geographical scope of the NAFO Convention.78
In that small area two seamount areas are already temporarily closed to bottom trawling.
On the basis of an Alliance proposal through the UK, the EU brought forward a
proposal to the September NAFO Commission for a resolution on the Sargasso Sea. It resolved
to take into account the available information about the Sargasso Sea, including its designation as
an EBSA, and consider management measures to protect that ecosystem. However, some
Contracting Parties indicated they regarded it as premature considering that the COP to the
CBD was not due to consider the proposal describing the Sargasso Sea as an EBSA until its
meeting in October 2012. The proposed resolution was therefore not adopted at that meeting.
Nevertheless, the issue was referred to NAFO’s Scientific Council. The Fisheries Commission
requested the Scientific Council
to comment and advise on whether the Sargasso Sea provides forage area or habitat for
living marine resources that could be impacted by different types of fishing; and on
whether there is a need for any management measure including a closure to protect this
ecosystem.79
The Science Council met in June 2013 in Dartmouth, Nova Scotia, Canada, but the issue was
deferred to the Fisheries Commission meeting in July 2013, at which point the proposals were
sent for consideration by the joint Fishery Commission/Science Council Working Group on
D Freestone and KK Morrison, “Sargasso Sea Alliance: Leveraging an EBSA definition for High Seas Protection”
Global Ocean Biodiversity Initiative Newsletter (October 2013) at p 5.
78 The NAFO Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries applies to most
fishery resources of the Northwest Atlantic except salmon, tunas/marlins, whales, and sedentary species (e.g.
shellfish). In 2009, NAFO has 12 Members from North America, Europe, Asia and the Caribbean. Among them are
four coastal members bordering the Convention Area: USA, Canada, France (in respect of St. Pierre et Miquelon),
and Denmark (in respect of Faroe Islands and Greenland).
79 Northwest Atlantic Fisheries Organization (NAFO), NAFO/FC DOC. 12/24, Fisheries Commission’s Request
for Scientific Advice on Management in 2014 and Beyond of Certain Stocks in Subareas 2, 3 and 4 and Other
Matters (September 2012), para 15. Reproduced in NAFO Report of the Fisheries Commission 2012 NAFO/FC
Doc
12/31,
Annex
6,
p
38.
Available
at:
http://www.sargassoalliance.org/storage/documents/NAFO_Report_of_the_Fisheries_Commission_St_Petersbur
g_Sept_2012.pdf
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Ecosystem Approach Framework to Fisheries Management.80 A number of further discussions
have been held within the Commission and the issue is still under consideration.
4. International Commission for the Conservation of Atlantic Tunas
The International Commission for the Conservation of Atlantic Tunas (ICCAT) is responsible
for the conservation of tuna and tuna-like species in the Atlantic Ocean and its adjacent seas.81
Sargassum had already been the subject of a 2005 ICCAT Resolution 05-11 on Pelagic Sargassum
initiated by the US.82 The origin of this 2005 resolution appears to be a decision of the US South
Atlantic Fishery Management Council, the federal body responsible for protecting ocean fish and
their habitat from North Carolina to part of Florida.83 The US decision declared Sargassum as
‘essential fish habitat’ under the US Magnuson-Stevens Fishery Conservation and Management
Act, that charges the Council with minimizing the ‘adverse effects on such habitat caused by
fishing.’84
ICCAT Resolution (05-11) on Pelagic Sargassum requested Contracting Parties and others
to provide to the Standing Committee on Research and Statistics (SCRS – the ICCAT Science
body) information and data on activities that impact pelagic Sargassum in the convention area on
the high seas, directly or indirectly, with particular emphasis on the Sargasso Sea. As a result, the
SCRS was asked to examine available and accessible information and data on the status of
pelagic Sargassum and its ecological importance to tuna and tuna-like species. The following year,
in 2006, the SCRS Sub-Committee on Ecosystems noted that there was no information on this
matter and therefore recommended that scientists from the Contracting Parties provide available
information to the Sub-Committee, which would facilitate giving a response to the
Commission.85 It appears however that no further information was forthcoming.
Nevertheless building on these previous actions, Bermuda was represented at the 2011
Meeting of the ICCAT Sub-Committee on Ecosystems held in Miami, and, on behalf of the
Sargasso Sea Alliance, made a presentation on the importance of the Sargasso Sea ecosystem.86
In the light of the 2005 ICCAT resolution, the 2006 recommendation from the Sub-Committee
on Ecosystems, and the information provided by the Sargasso Sea Alliance, the Sub-Committee
Northwest
Atlantic
Fisheries
Organization
(NAFO).
Sargasso
Alliance,
http://www.sargassoalliance.org/management-and-enforcement/competent-authorities-and-collaboratinginstitutions/nafo (last visited Jan. 25, 2014).
81 The International Convention for the Conservation of Atlantic Tunas was signed in Rio de Janeiro, Brazil, in
1966. It entered into force in 1969 and currently has 48 parties. Further details at:
http://www.iccat.int/en/contracting.htm. For geographical scope see Article 1, ICCAT Convention – text at
http://www.iccat.int/Documents/Commission/BasicTexts.pdf
82 ICCAT Resolution 05-11 on Pelagic Sargassum, at
https://www.iccat.int/Documents/Recs/compendiopdfe/2005-11-e.pdf
83 See South Atlantic Fisheries Management Council, Fisheries management Plan for Pelagic Sargassum Habitat of
the South Atlantic Region (SAFMC 2002). Available : http://safmc.net/Library/pdf/SargFMP.pdf
84 Current version is 109th Congress Public Law 479; An Act to amend the Magnuson-Stevens Fishery Conservation
and Management Act to authorize activities to promote improved monitoring and compliance for high seas
fisheries, or fisheries governed by international fishery management agreements, and for other purposes. Jan. 12,
2007 - [H.R. 5946] Text at: http://www.gpo.gov/fdsys/pkg/PLAW-109publ479/html/PLAW-109publ479.htm.
The US South Atlantic Fishery Management Council prepared a Fishery Management Plan that limits commercial
harvest of Sargassum in US waters to 5,000 lbs per year. The long-term objective is to give Sargassum full protection
and ensure that there is no net loss of this important fish habitat off US shores.
85 ICCAT Report 2006-2007, Appendix 10, item 6.
86
The presentation is summarized in Appendix 8 of the 2011 Report. Available at
http://www.iccat.es/Documents/Meetings/Docs/2011_SC_ECO_REP_ENG.pdf
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encouraged scientists from Contracting Parties to examine the available data to assess better the
importance of pelagic Sargassum to tuna and tuna-like species.87 In 2011, the Government of
Bermuda formally introduced the Alliance objectives to the full ICCAT Commission through an
intervention at the Commission meeting.
The following year, in November 2012, at the Annual ICCAT Commission meeting in
Agadir, Bermuda proposed a recommendation that the SCRS examine the data compiled on the
Sargasso Sea and the impacts of fishing activity on tuna and tuna-like species and on the area’s
ecosystems, and that it consider the viability of establishing special conservation and
management measures within the Sargasso Sea.88 The proposed recommendation noted that the
Convention requires Parties to protect and preserve rare or fragile ecosystems, as well as the
habitat of depleted, threatened or endangered species; that the UN Fish Stocks Agreement calls
for the protection of biodiversity in the marine environment, and refers to the need to take
ecosystem considerations into account, as well as to ensure compatibility between conservation
and management measures adopted on the high seas and those adopted in areas under national
jurisdiction;89 and noted also that many countries, including Contracting Parties, are moving to
incorporate ecosystem considerations into their fisheries management measures. 90
The proposed recommendation was strongly supported by the EU, the US and a number
of other delegations, but encountered opposition from countries that appeared not to accept the
significance of the 2012 CBD COP decision on EBSAs discussed above.91 Nevertheless the
Commission did resolve to request the SCRS to examine the available data and information
concerning the Sargasso Sea and its ecological importance to tuna and tuna-like species and
ecologically associated species;92 and to provide an update on the progress of this work in 2014
and report back to the Commission with its findings in 2015.93 The long time frame is the result
of the fact that the main brunt of the work will be undertaken by the Sub-Committee on
Ecosystems, which is currently involved in a major assessment of turtle by-catch but which has
not to date had to assess the ecological importance of a complete ecosystem like the Sargasso
Sea.
At the 2013 Meeting of the Subcommittee, Bermuda and the Alliance put forward a
major inventory of the ‘tuna and tuna-like species’ found within the Sargasso Sea.94 The ICCAT
Ecosystem Subcommittee report states that:
Above n 85.
Which was narrowly defined to include those ICCAT squares outside the EEZs of coastal States (except
Bermuda) and west of the mid-Atlantic and delineated by a polygon with the following co-ordinates: (-65.0 25.0,70.0 25.0,-70.0 30.0,-70.0 35.0,-65.0 35.0,-65.0 40.0,-60.0 40.0,-55 40,-50.0 40.0,-50.0 35.0,-50.0 30.0,-50.0 25.0,-55.0
25.0,-60.0 25.0,-65.0 25.0).
89 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of
10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks (adopted 4 August 1995, entered into force 11 December
2001) 2167 UNTS 88, Arts 5(d), 5(e), and
7(1).
90 The draft is not in the record of the meeting, but see further D Freestone et al, “Place-based Dynamic
Management of Large Scale Ocean Places: Papahānaumokuākea and the Sargasso Sea” (2014) 33 Stanford
Environmental Law Journal 191, 215.
91 See n 73, and the accompanying text.
92 Resolution by ICATT on the Sargasso Sea, Res 12-12 (2102). Reproduced in ICATT, Report for biennial period 201213 Part I, (ICAAT 2012) vol 1 at 215. Available at http://www.iccat.es/Documents/BienRep/REP_EN_1213_I_1.pdf, para 1.
93 ibid, para 2.
94 BE Luckhurst, ‘Inventory and Ecology of Fish Species of Interest to ICCAT in the Sargasso Sea’
(SCRS/2013/132). Noted in ICCAT Secretariat, Sub-Committee on Ecosystems, Report from the 2013 Inter87
88
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The Group recommends continuing the contact with Sargasso Sea research teams and
the U.K.-Bermuda scientists to develop a scientific collaborative plan to accomplish
objective 2 of Res [12-12]. Additionally, the Group recognized that the above work is
providing a useful foundation for adopting this region as a basis for a case study in
implementing the Ecosystem Based Fisheries Management (EBFM) approach within
ICCAT and this collaboration should continue to be supported.95
This conclusion was reported at the 2013 SCRS Meeting, and at the ICCAT Commission
Meeting in Cape Town, South Africa in November 2013, the chair of the SCRS reported that the
ecosystem group “recognized that basic biological and ecological data provided for the Sargasso
Sea offers a useful foundation for adopting the region as a basis for a case study…’96 Bermuda
submitted two further papers to the Subcommittee meeting in Portugal in September 2014.97
Under ICCAT Res [12-12], the SCRS is due to report to the full Commission at its meeting in
Malta in November 2015. The Sargasso Sea Commission Secretariat is commissioning further
research work in support of this process.
5. International Maritime Organization
The IMO has sponsored a complex web of international conventions regulating international
maritime shipping and vessel-source pollution issues. Its Marine Environmental Protection
Committee (“MEPC”) meets every eight months or so. Its primary environmental instrument is
the 1973/1978 MARPOL Convention. The IMO issues guidelines on a range of issue including
the establishment of Particularly Sensitive Sea Areas (PSSAs).98 To date, however, PSSAs, which
need to be linked with an Associated Protection Measure (APM), such as ship routing
requirements or discharge restrictions, have not been declared in the high seas.99 In 2011, the
Alliance commissioned a major study on maritime traffic through the Sargasso Sea, which
demonstrates the extent of heavy traffic which passes regularly through that part of the North
Atlantic.100 In 2011 and 2012, the Alliance organised a well-attended side events at the MEPC,
highlighting the importance of the ecosystem and the need for some forms of protection.
Bermuda has its own shipping registry with some two hundred vessels, but it is not a separate
member of the IMO. Any Bermudian proposal for new shipping measures in the Sargasso Sea to
be adopted by the IMO would therefore need to be presented through the UK. Discussions with
the UK as to what might be appropriate protection measures are still ongoing.
6. International Seabed Authority
sessional Meeting of the Sub-Committee on Ecosystems (Madrid, Spain – July 1 to 5, 2013) 2, available at
http://www.iccat.int/Documents/Meetings/Docs/2013_SC-ECO_REPORT_ENG.pdf.
95 ibid.
96 Summary of the Report of the Inter-Sessional Meeting of the Sub-Committee on Ecosystems, in ICAAT, ICCAT
Report for the biennial period, 2012-2013 Part II - vol 2. (ICAAT 2014) Appendix 9: 334, 336. Available at:
http://www.iccat.es/Documents/BienRep/REP_EN_12-13_II_2.pdf
97 BE Luckhurst, Analysis of ICCAT reported catches of tunas and swordfish in the Sargasso Sea (1992-2011)
(SCRS/2014/119),
available
at
http://www.sargassoalliance.org/storage/documents/Luckhurst_2014__SCRS_2014_119.pdf and BE Luckhurst, A preliminary food web of the pelagic environment of the Sargasso Sea with a focus on
the
fish
species
of
interest
to
ICCAT
(SCRS/2014/120),
available
at
http://www.sargassoalliance.org/storage/documents/Luckhurst_2014_-SCRS_2014_120.pdf
98 On the evolution of this concept see Gjerde and Freestone (n 24).
99 See Roberts (n 25).
100 J Roberts, Maritime Traffic in the Sargasso Sea: an Analysis of International Shipping Activities and their Potential
Environmental Impacts. Sargasso Sea Alliance Science Report Series, No 9 (2011). Available only on line at
http://www.sargassoalliance.org/storage/documents/No.9.MaritimeTraffic_LO.pdf
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The ISA has jurisdiction over seabed mineral resource exploration and exploitation in the Area
including beneath the Sargassum habitat of the Sargasso Sea.101 According to a recent study
conducted by the Alliance, the geological context of the region suggests that mineral resources
may be found in the Sargasso Sea Study Area.102 While some resources like aggregates or
phosphates are likely not viable for exploitation, hydrocarbons, gas hydrates, manganese nodules
and polymetallic sulphides might be of potential commercial interest.103 Manganese nodules and
cobalt-rich manganese crusts are likely to be the most commonly occurring mineral resource in
the Sargasso Sea Study Area. Despite their relatively low value, the high local abundance and
grade of these resources means that in the long run they might be extracted. As yet there seems
to be little interest, although in 2010, the Russian Federation requested an exploration license in
the Mid-Atlantic Ridge, adjacent to the Study Area, signalling a growing interest in polymetallic
sulphides as an economically viable ore deposit likely for rare earth and trace metal deposits used
in computers and mobile phones. The French institution IFREMER also has an exploration
license for an area north of the Russian area also on the Mid-Atlantic Ridge.104
While it seems unlikely in the near future, it is possible that deep seabed mining,
particularly for polymetallic sulphides could be contemplated in the eastern part of the Sargasso
Sea Study Area. However, no action has yet seemed appropriate in relation to seabed mining in
the Sargasso Sea, which is currently a remote possibility. The ISA Secretariat has participated in
Alliance scientific and other meetings and was represented at the Hamilton Meeting in March
2014. The Secretariats of the ISA and the new Sargasso Sea Commission are also developing a
form of collaboration to promote further discussion and information sharing between the two
entities.
7. Convention on the Conservation of Migratory Species of Wild Animals
The 1979 Convention on the Conservation of Migratory Species (“CMS”) aims to protect
migratory species throughout their ranges. Under the CMS, States can enter into Range State
Agreements and/or Memoranda of Understanding to protect species (which are listed in the
Appendices) within their full habitat range and can serve as a strong example of how
international collaboration can improve marine protection for a species present across
jurisdictions, and even in ABNJ.105 Well-known examples include the Agreement on the
Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area
(ACCOBAMS),106 and the Memorandum of Understanding on the Conservation of Migratory
Sharks,107 the latter of which is open to a broader range of governments which may not be party
to the CMS, such as the US.
The ISA was established under UNCLOS, Arts 156–158.
This is partially due to the availability of plentiful non-marine sources for phosphates. See L Parson and R
Edwards, The Geology of the Sargasso Sea Alliance Study Area: Potential Non-Living Marine Resources and an Overview of the
Current Territorial Claims and Coastal State Interests. Sargasso Sea Alliance Science Report Series No. 8 (2011). Available
at http://www.sargassoalliance.org/storage/documents/No8_Geology_LO.pdf.
103 ibid.
104 The Russian Federation proposal is specifically on the Mid-Atlantic Ridge itself, south of 10°S. Ibid.
105 Signed 23 June 1979, entered into force 1 November 1983; text at (1980) 19 ILM 11. Migratory species may be
listed under Appendix I and/or II. Appendix II species may be the subject of Range State AGREEMENTS (sic, per
text of Article V) between Parties.
106 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area
1996, (1997) 36 ILM 777.
107
Available
at
http://www.cms.int/sharks/sites/default/files/uploads/_Migratory_Shark_MoU_minus_CP_Eng.pdf
101
102
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The CMS is potentially a significant tool for Sargasso Sea conservation because many
animal species migrate through the Sargasso Sea, including the commercially important American
and European eels, and several cetacean species. The UK has extended its ratification of the
CMS to Bermuda. Early in 2014, conscious of the fact that the CMS COP was to take place in
November 2014, the Alliance commissioned a draft science proposal for the listing of the
European eel (Anguilla anguilla) on Appendix II of the Convention.108 Species can be listed under
Appendix II if they have an “unfavourable conservation status” and if, inter alia, their
conservation status “would significantly benefit from the international cooperation that could be
achieved by an international agreement.”’109 Although listing a species under Appendix II does
not prohibit harvesting or trade, parties to the CMS must ‘endeavour to conclude Agreements
covering the conservation and management’ of listed species.110 However, Anguilla anguilla is
already listed under CITES Appendix II (requiring certification of exports) and the EU has
banned trade with third countries. 111 After the Hamilton meeting in March 2014, in furtherance
of the agreement to collaborate contained in the Hamilton Declaration, the Government of
Monaco took up the case for the listing of Anguilla anguilla and submitted a proposal to the CMS
Science Council in July 2014.112 The Science Council recommended listing under Appendix II,
and at the CMS COP in Quito, Ecuador in November 2014 the Parties agreed to include Anguilla
anguilla in Appendix II.113 The next step will be the facilitation of a Range State workshop to
discuss appropriate collaborative conservation measures.
8. Inter-American Convention for the Protection and Conservation of Sea Turtles
The 1996 Inter-American Convention for the Protection and Conservation of Sea Turtles came
into force in 2001 and now has 15 parties.114 The Convention promotes the protection,
conservation and recovery of the populations of sea turtles and those habitats on which they
depend, on the basis of the best available data and taking into consideration the environmental,
socioeconomic and cultural characteristics of the Parties. 115 Several endangered or critically
endangered species of turtle, including green turtles (Chelonia mydas), hawksbill turtles
(Eretmochelys imbricate), loggerhead turtles (Caretta caretta), and Kemp’s Ridley turtles (Lepidochelys
kempii), use Sargassum weed for cover, feeding and nursery habitat. The UK (and hence Bermuda)
is not a party to the Convention.
After preliminary discussion about a collaboration arrangement between the Sargasso Sea
Commission and the Convention’s Secretariat, the secretariats have agreed informally to
collaborate on a joint paper on the importance of Sargassum and the Sargasso Sea for Atlantic sea
turtles. This paper will demonstrate the important migration links between turtles in Bermuda
and many of the Central American countries.
Proposal for inclusion of the European eel (Anguilla anguilla) on Appendix II of the Convention on the Conservation of Migratory
Species of Wild Animals, prepared for the SSA by Dr M Gollock and Dr D Jacoby of the Zoological Society of
London, June 2014. (On file with author)
109 CMS, Art IV(1).
110 CMS, Art IV(3)(c).
111 Council Regulation (EC) No. 1100/2007 of 18 September 2007 establishes measures for the recovery of the
stock of European eel. OJ 2007 L248/17.
112 UNEP/CMS/ScC18/Doc.7.2.18. Proposal II/12
http://www.cms.int/sites/default/files/document/Doc_7_2_18_Prop_II_12_Anguilla_anguilla_MCO.pdf
113 UNEP/CMS/COP11/Doc.24.1.18.Rev.1.
114 For text see: http://www.iacseaturtle.org/eng-docs/Texto-CIT-ENG.pdf. Parties are: Argentina, Belize, Brazil,
Chile, Costa Rica, Ecuador, Guatemala, Honduras, Panama, Mexico, Peru, the Netherlands, United States of
America, Uruguay and Venezuela. Nicaragua has signed but not ratified.
115 Art II.
108
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9. The World Heritage Convention
The 1972 World Heritage Convention (“WHC”) envisages the inscription, in the World Heritage
List, of sites of “outstanding universal value” that are part of the world’s “natural” and “cultural”
heritage, defined in Articles 1 and 2 respectively.116 As at 10 March 2015, 1007 sites are inscribed
on the World Heritage List of which about twenty per cent are “natural” sites. Of these, forty-six
sites in thirty-five countries are inscribed specifically for their marine values.117
Nothing in the texts of Articles 1 and 2 of the WHC suggests that sites proposed for
inscription could not be in areas beyond national jurisdiction. However, the procedures
established seem to restrict nomination to sites which are “situated on the territory” of any of its
Parties (Articles 3 and 4) or “in its territory” (Article 11). It has consequently been remarked that
a World Heritage List that excludes sites in ABNJ (which consists of nearly half the globe)
should perhaps be called “Half the World Heritage.”118 The issue was raised in 2011 after an
audit of the “Global Strategy for a credible, balanced and representative World Heritage List.”119
Consequent to this, the Convention Secretariat began, in collaboration with the IUCN, to look at
a scientifically sound method through which the concept of outstanding universal value in the
Convention might be applied to the high seas. The Alliance, and now the Sargasso Sea
Commission, is in correspondence with the Secretariat of the UNESCO World Heritage
Committee, and the Sargasso Sea would clearly be a prime candidate for such a development.
10. Other conventional regimes
a) Western Central Atlantic Fishery Commission
Although there is no regional fisheries management regime governing the entire Sargasso Sea,
there is an FAO fisheries advisory body that includes the geographic area of which the Sargasso
Sea is part: the Western Central Atlantic Fishery Commission (WECAFC),120 to which the UK is
a party. WECAFC practice has recently shown potential for the adoption of conservationminded approaches. The February 2012 WECAFC meeting included a resolution on
strengthening the implementation of international fisheries instruments.121 WECAFC noted the
Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 23 November 1972,
entered into force 15 December 1975); 1037 UNTS 151.
117 For an official list of sites see: UNESCO World Heritage List. Available http://whc.unesco.org/en/list/
118 Attributed to Professor Dan Laffoley, Marine Vice Chair of the IUCN World Commission on Protected Areas.
See Freestone and Morrison (n 61) 654.
119 Available at http://whc.unesco.org/en/globalstrategy/
120 The WECAFC was established under FAO Resolution 4/61 (1973), as amended by Resolution 3/74 (1978). IN
2006,
it
was
revised
by
Resolution
1/131
(2006).
Available
at:
ftp://ftp.fao.org/FI/DOCUMENT/wecafc/statutes.pdf. The general objective of the Commission is to promote
the effective conservation, management and development of the living marine resources of the area of competence
of the Commission, in accordance with the FAO Code of Conduct for Responsible Fisheries, and address common
problems of fisheries management and development faced by members of the Commission. The work of the
Commission is guided by the following three principles: promote the application of the provisions of the FAO Code
of Conduct on Responsible Fisheries and its related instruments, including the precautionary approach and the
ecosystem approach to fisheries management; ensure adequate attention to small-scale, artisanal and subsistence
fisheries; and coordinate and cooperate closely with other relevant international organizations on matters of
common interest.
121 Resolution on Strengthening the Implementation of International Fisheries Instruments-WECAFC 14 Session,
Panama
City,
6–9
February
2012
(WECAFC/XIV/2012/7.
Available
at:
http://www.fao.org/docrep/meeting/024/am121e.pdf.
116
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need to preserve biodiversity, minimize the risks of long-term or irreversible effects of
fishing operations, avoid adverse impacts on the marine environment, maintain the
integrity of marine ecosystems including deep-sea vulnerable marine ecosystems and
effectively apply the precautionary and ecosystem approaches to fisheries management.122
Furthermore, WECAFC “agree(d) to take actions and measures to strengthen implementation of
existing international fisheries instruments and those that may be developed in the future .…”. 123
The Alliance is in communication with the WECAFC Secretariat and representatives of the
Alliance Secretariat as well as of Bermuda have participated in WECAFC meetings, including a
workshop financed by the Global Environment Facility to prepare a billfish management and
conservation plan for the western Central Atlantic.124
b) Related regional sea treaties
Although there is no regional sea agreement covering the waters of the Sargasso Sea, there are a
number of regional seas agreements which cover adjacent, if not necessarily abutting, regional
sea areas. The OSPAR Convention, discussed above,125 whose geographical area of application
includes the ABNJ areas of the North East Atlantic, has already developed a network of MPAs
in ABNJ. In 2012 the Alliance and the OSPAR Secretariat signed a Collaboration
Arrangement.126 Two UNEP Regional Seas Agreements cover areas to the east and south
respectively: the Abidjan Convention for Co-operation in the Protection and Development of
the Marine and Coastal Environment of the West and Central African Region,127 and the 1983
Cartagena Convention for the Protection and Development of the Marine Environment of the
Wider Caribbean Region (the Cartagena Convention).128 Both Secretariats attended the Pocantico
meeting discussed below and are interested in on-going collaboration.
V. THE HAMILTON DECLARATION
CONSERVATION OF THE SARGASSO SEA
ON
COLLABORATION
FOR
THE
On 11 March 2014, the Government of Bermuda, with the support of the Alliance, convened an
historic inter-governmental meeting in Hamilton, Bermuda to adopt the Hamilton Declaration
on Collaboration for the Conservation of the Sargasso Sea.129
Ibid, preambular para 9.
Ibid, para 2.
124 A meeting, attended by Bermuda and the Alliance, was held in Fort Lauderdale, Florida 19020 March 2013.
125 At n 35.
126 Because the Sargasso Sea Alliance does not have international legal personality, the OSPAR Linguists and Jurists
Committee recommended the use of the term “Arrangement” rather than agreement. Text is at
http://www.sargassoalliance.org/management-and-enforcement/competent-authorities-and-collaboratinginstitutions/ospar
127 The 1981 Convention for the Co-operation in the Protection and Development of the Marine and Coastal
Environment of the West and Central African Region (Abidjan Convention) entered into force in 5 August 1984,
(1981) 20 ILM 746. The Abidjan Convention has 16 African States Parties who cooperate to protect and develop
the marine and coastal environment of the West and Central African Region (within their 200 nm EEZs).
http://abidjanconvention.org/
128 The 1983 Convention for the Protection and Development of the Marine Environment in the Wider Caribbean
Region (Cartagena Convention) entered in force 11 October 1986, (1983) 22 ILM 221. The Convention has some 28
countries that border the Gulf of Mexico, the Straits of Florida and the Caribbean Sea, it applies out to a distance of
200 nm. See http://www.cep.unep.org/cartagena-convention
129 The full text of the Hamilton Declaration is appended to Freestone and Morrison (n 57), 354-361.
122
123
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The Hamilton Declaration is the result of a two-year negotiation between interested
governments that are either located in the broader Sargasso Sea area, have an interest in species
within it, or are interested in high seas conservation more generally. It is historic in that is the
first non-binding instrument designed to provide a framework for voluntary intergovernmental
collaboration to promote measures, through existing international organizations, to minimize the
adverse effects of human activities in an ecosystem that is primarily in ABNJ. The Declaration
also envisages the establishment of a Sargasso Sea Commission, to ‘exercise a stewardship role
for the Sargasso Sea and keep its health, productivity and resilience under continual review.’130
A. The Pocantico Meetings
A preliminary meeting was held in early December 2012, at the Pocantico Center in New York131
to discuss the first draft of the Declaration. Invitations were issued to a large number of
countries in the Atlantic rim around the Sargasso Sea as well as in Europe (primarily the North
Sea States concerned about the fate of the European eel (Anguilla anguilla)), and a range of
relevant international organisations. Official representatives attended from the governments of
Bermuda, Belgium, Dominican Republic, Portugal, South Africa, Sweden, Trinidad & Tobago,
the United States and the United Kingdom, as did a representative from the European
Commission.132 In addition, representatives from international and regional organizations
participated as observers, including the UN Division of Ocean Affairs and Law of the Sea
(“DOALOS”), the Regional Coordinators from the UN Environment Programmes for the
Wider Caribbean (the Cartagena Convention) and West Africa (the Abidjan Convention), the
Secretariat of the CBD, and the Caribbean Community (“CARICOM”). At this first Pocantico
Meeting, participants developed a negotiated text for review and consideration by the
governments interested in signing it. The text was later presented to the EU Council of Minsters
Committee on Law of the Sea issues (“COMAR”) in Brussels in March 2013 and reviewed by
COMAR on a number of occasions thereafter.133
A second meeting was held in Pocantico in November 2013 to finalize the text for
signature. Together with a representative from the European Commission, official
representatives attended from the governments of Portugal, the Azores, the Bahamas, Belgium,
Dominican Republic, the Netherlands and Monaco, the US and the UK. The International
Seabed Authority and the Canadian Senate participated as observers. 134
B. The Hamilton Meeting
Representatives from eleven governments and five international organizations were represented
at the Hamilton Meeting.135 Although, the Declaration is not a legally binding instrument,136 in
the final days before the meeting the EU apparently had reservations about the competence of
individual member States to sign without a decision of the EU Council of Ministers. The result
Hamilton Declaration, ibid, Annex II, paragraph a.
The Pocantico Center of the Rockefeller Brothers Fund in Tarrytown, New York.
132 Freestone and Morrison, (n 57) 350.
133 Available at http://archive.constantcontact.com/fs169/1109154724045/archive/1112961582336.html
134 Ibid.
135 Representatives from the Oslo and Paris Commission (OSPAR), the ISA, the Inter-American Convention for the
Conservation of Atlantic Sea Turtles, the CMS and the International Union for the Conservation of Nature (IUCN)
attended and spoke.
136 As its text explicitly states in the ninth paragraph of the preamble, Hamilton Declaration (n 57).
130
131
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was that a number of EU governments did not attend or attended but did not sign the
Declaration. There was also a last minute change to the definition of the ‘area of collaboration’ as
set out in Annex I of the Declaration.137 In the initial negotiations of the Declaration it was
envisaged that the area covered by the CBD EBSA (which includes the EEZ of Bermuda) would
be the area of collaboration, but at the request of the Bermuda Government, the Bermuda EEZ
was excluded from the definition and thus from the competence of the Commission.
In the event, the Declaration was signed by five governments: Azores, Bermuda,
Monaco, UK and the US. Representatives from Bahamas, British Virgin Islands, Netherlands,
South Africa, Sweden and the Turks and Caicos Islands attended and spoke in support, and
messages of support were also received from the governments of Puerto Rico and the
Dominican Republic.
C. Text of the Hamilton Declaration
The Declaration recognizes the Government of Bermuda for its important leadership role in
bringing to international attention the global significance of the Sargasso Sea and for initiating
and continuing the process leading to the convening of the Hamilton meeting. The Preamble
reinforces the point that the 1982 Convention is the framework for this collaboration, recognizes
the important scientific work of the Sargasso Sea Alliance, and recognizes explicitly that the
Declaration “is not legally binding and is without prejudice to the existing legal rights and
obligations of the Signatories under international law or to the competences of regional and
international organizations.”138
The guiding principle of the Declaration is to conserve the Sargasso Sea ecosystem for
the benefit of present and future generations, and Paragraph 3 states that the basic objective is
for the Signatory States to agree to collaborate in pursuing conservation measures for the
Sargasso Sea ecosystem through existing regional and international organizations with relevant
competences. Paragraph 8 further develops this concept, entrusting the Sargasso Sea
Commission (discussed below) with the role of developing proposals for such measures for
consideration by the Signatories to the Declaration; the Signatories may then decide whether to
submit these or support them at relevant regional or international organizations. It envisages
that the Commission may develop the same type of measures as the type already developed by
the Alliance, as discussed above.139 Such measures would seek to address the adverse effects of
the full range of human activities, itemized in Paragraph 8 of the Declaration.
The Declaration sets up a light intergovernmental process (loosely modelled on the
Migratory Sharks MOU negotiated under the CMS).140 It envisages a ‘Meeting of Signatories’ and
endorses the establishment of a Sargasso Sea Commission with a Secretariat and supporting
financial mechanism. The small permanent Secretariat will assist both bodies, and a financial
mechanism to receive voluntary contributions from both public and private sources has been
established, including a dedicated fund in Bermuda. There are no mandatory financial
Hamilton Declaration (n 57) at 359.
ibid, preamble, para 9.
139 See section IV.A, above.
140 The structure is very loosely modelled on the structure of The Memorandum of Understanding on the
Conservation of Migratory Sharks is an instrument developed under the auspices of the Convention on Migratory
Species. Text is at: http://sharksmou.org/sites/default/files/Migratory_Shark_MoU_English.pdf. As of February
2014, the MOU has 36 Signatories: 35 national governments and the European Union. http://sharksmou.org/listof-signatories.
137
138
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obligations but Signatories are invited on a voluntary basis, to support the work of the
Commission.
D. The Sargasso Sea Commission
The Sargasso Sea Commission is a unique body, derived from a voluntary instrument to exercise
a stewardship role for a unique ecosystem in ABNJ. It is to be composed of ‘distinguished
scientists and other persons of international repute committed to the conservation of high seas
ecosystems’ serving in their personal capacity.141 In August 2014, after a nomination and
consultation process involving the Signatory governments, the Government of Bermuda
appointed the first Sargasso Sea Commission.142 The Commission has taken over the role of the
Alliance and is charged with developing further proposals for conservation measures for
consideration by existing sectoral organisations (IMO, ICCAT etc.), and which Participating
Governments would consider supporting through those organisations. Through the Secretariat,
the Commission would also have the usual liaison, co-operation, monitoring, outreach and
information clearing house roles.143
VI. CONCLUSIONS
The work of the Sargasso Sea Alliance and the signature of the Hamilton Declaration may
indeed represent a new paradigm for high seas conservation. Regional treaty regimes, while still
important, take a long time to negotiate, move slowly and cannot bind third parties. 144 The
Alliance was funded by a group of forward thinking private donors; it worked with the
Government of Bermuda, and ultimately the UK, in a novel form of public-private partnership.
The Hamilton Declaration is not a legally binding instrument, but the Signatories have agreed to
work together through the international legal mechanisms that already exist. The Sargasso Sea
Commission will not have international legal personality, nor will it have management authority
per se. But its ‘stewardship’ role does have the potential for it to be an important voice, to provide
the scientific and policy underpinnings for monitoring and management by others, and to be the
conscience of the Signatories.
The Sargasso Sea project provides an interesting insight into the way in which the current
system of high seas governance operates within the framework of the law of the sea. As
discussed above, Article 197 can be taken perhaps as a benchmark for what the participants in
the Third Conference on the Law of the Sea had in mind for the way that the international
community would co-operate to achieve the strong requirements of marine environment
protection set out by Part XII, and particularly Article 192. Article 197 requires States Parties to
Hamilton Declaration (n 57) para 6.
The First Commissioners are: Dr Billy Causey (US), Professor Howard Roe (UK), Professor Ricardo Serrão
Santos (Azores), Professor Dire Tlade (South Africa) and Dr Tammy Trott (Bermuda). See further
http://www.sargassoalliance.org/about-the-alliance
and
http://mobile.royalgazette.com/article/20140806/NEWS/140809882
143 The initial mandate of the Commission is set out in Annex II to the Hamilton Declaration (n 57).
144 For a comparison of the OSPAR experience and the SSA see David Freestone et al, ‘Can existing institutions
protect biodiversity in areas beyond national jurisdiction? Experiences from two on-going processes’ (2014) 49
Marine Policy 167-275. http://dx.doi.org/10.1016/j.marpol.2013.12.007. For a comparison with a large marine area
within national jurisdiction see D Freestone et al, ‘Place Based Dynamic Management of Large Scale Ocean Places:
Papahānaumokuākea and the Sargasso Sea’ (2014) 33 Stanford Environmental Law Journal 191-248.
141
142
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… co-operate on a global basis and, as appropriate, on a regional basis, directly or
through competent international organizations, in formulating and elaborating
international rules, standards and recommended practices and procedures consistent with
this Convention, for the protection and preservation of the marine environment, taking
into account characteristic regional features.
There is obviously a great deal of evidence of State co-operation through some existing
organisations. The IMO has a network of nearly 100 treaties and instruments covering a wide
spectrum of navigation and vessel source pollution rules and standards. A similarly sophisticated
regime is developing through the work of the ISA in developing the ‘Mining Code’ for seabed
exploration and exploitation. The performance of Regional Fisheries Management Organisations
in “formulating and elaborating international rules, standards and recommended practices and
procedures consistent with this Convention”145 is unfortunately not as impressive; even the
criteria and requirements developed by the Fish Stocks Agreement146 have been poorly
implemented.147 However the real weakness is in the lack of any co-ordination between these
separate sectors.
As indicated earlier, each sectoral regime has its own distinctive protection mechanisms
and assesses differently the factors that need to be taken into account, resulting in a plethora of
distinct sectoral regimes designed to protect specific areas of the ocean from individual sectorally
specific risks. The IMO uses MARPOL Special Areas and PSSAs, RFMOs use VMEs and
‘closed areas,’ and the ISA is talking of ‘reference areas’ and ‘Areas of Particular Environmental
Interest.’ Each of these approaches has value but each is developed and assessed by its own
epistemic community; it is not developed with any reference to the work of other sectoral
bodies. Hence the only relevant threats arise from within the sector – it is rare to see
consideration of cumulative impacts from different sectors.
The concept, developed by the CBD, of the science-driven description of certain marine
areas as ‘ecologically or biologically significant’ does in theory have the potential to act as a
unifying concept, that each sectoral regime could recognise and utilise. Unfortunately, it seems
for a number of reasons, EBSAs have not as yet seemed to have garnered credibility or broad
acceptance within the various sectoral organisations.148 This reality may change, but at least this
has been the early experience in relation to the Sargasso Sea.
The Sargasso Sea project has to date shown some signs indicating that sector-by-sector
approaches to high seas protection utilising existing institutions may indeed be possible.
However, it has also already shown that making the necessary linkages between sectors is
difficult and that multi-sectoral protection is likely to involve a long, drawn out process. The
international governance arena is, in this respect, similar to national government, where different
ministries with different personnel have different perspectives on similar issues and do not
always liaise effectively – the so-called “silo effect”. Some national governments have worked out
ways to address this, possibly endemic problem, but at the international level the only body with
overarching responsibility is the UNGA. The UNGA has taken an active and informed interest
UNCLOS Art 197.
Fish Stocks Agreement (n 89). Most notably the requirements for the ecosystem approach and the precautionary
approach, see D Freestone, ‘Implementing Precaution Cautiously: The Precautionary Approach in the 1995
Agreement’ in E Hey (ed), Developments in International Fisheries Law (Kluwer Law International 1999); D Freestone
and Z Makuch, ‘The New International Environmental Law of Fisheries: The 1995 UN Straddling Stocks
Agreement,’ (1996) 7 Yearbook of International Environmental Law 3.
147 This is borne out by the series of Performance Reviews conducted on RFMOS, conveniently collected for the
Tuna Conventions at http://www.tuna-org.org/
148 See Freestone and Morrison (n 77) 5.
145
146
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in ocean affairs, but it has a busy agenda and experience suggests that in the long term it is
probably not the most effective forum for overseeing ocean governance issues. The findings of
the Sargasso Sea project are that a more holistic approach to ocean governance in ABNJ seems
to need a more fundamental review. In this regard the January 2015 recommendation to the
UNGA from the BBNJ working Group, discussed above,149 that it decide to initiate a process to
negotiate a new implementation agreement for ABNJ under the 1982 Convention is to be
warmly welcomed.
149
Section III, above.
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Chapter 15
Regional governance for fisheries
and biodiversity
R. Warner1, K.M. Gjerde2 and D. Freestone3
Australian National Centre for Ocean Resources and Security, University of Wollongong, Australia
Global Marine and Polar Programme and World Commission on Protected Areas, IUCN, Gland, Switzerland
3 The George Washington University Law School, Washington, DC, USA
1 2 Abstract: Strong and coherent regional governance is critical for tackling the increasing number and variety of threats to fisheries and
biodiversity within and beyond national jurisdiction including overfishing, destructive fishing practices, marine pollution and climate
change impacts. This chapter examines the existing legal and institutional framework for fisheries and biodiversity governance at the
regional level including key regional organizations such as regional fisheries management organizations, regional seas organizations
and non-binding regional initiatives. As well as highlighting the fragmentary nature of regional oceans governance, this analysis
­discloses the wide variety of approaches to and differing rates of progress in harmonizing fisheries and biodiversity conservation
­objectives across major oceanic regions.
Keywords: regional; fisheries; biodiversity; conservation; governance; harmonization; transboundary; threats
Introduction
The regional level of governance is critical to the effective
implementation of international legal obligations and
conservation and management measures for both fisheries
and marine biodiversity: fish stocks and marine ecosystems
straddle national boundaries and areas within and beyond
national jurisdiction. Strong and coherent regional governance is a vital component in combating the rising
catalogue of transboundary threats to fisheries and biodiversity including overfishing, destructive fishing practices,
pollution and climate change impacts.
This chapter first describes the legal and institutional
framework for fisheries and biodiversity governance at the
regional level, focusing on some key features of regional
fisheries management organizations (RFMOs) and regional
seas arrangements (RSAs), and looking also at other more
informal arrangements such as the Large Marine
Ecosystem (LME) projects. The analysis reveals the fragmentary nature of the regional oceans governance
­network for fisheries and biodiversity both in terms of its
geographic scope and its functional responsibilities.
Examples from different regions underscore the wide
diversity and varying rates of progress in aligning and harmonizing fisheries and b
­ iodiversity conservation objectives. We then examine the efforts of RFMOs and RSAs to
collaborate between themselves and with other global and
extra-regional organizations and analyse some of the catalysts for such collaboration. We discuss selected initiatives
towards comprehensive strategies for alignment and harmonization of fisheries and biodiversity conservation and
management. Finally, gaps in regional oceans governance
Governance of Marine Fisheries and Biodiversity Conservation: Interaction and Coevolution, First Edition.
Edited by Serge M. Garcia, Jake Rice and Anthony Charles.
© 2014 John Wiley & Sons, Ltd. Published 2014 by John Wiley & Sons, Ltd.
211
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212
Governance of Marine Fisheries and Biodiversity Conservation
for fisheries and biodiversity conservation and potential
pathways to improved ­collaboration are identified.
Legal and institutional framework
for regional fisheries governance
There are 20 existing and prospective RFMOs with mandates to establish fisheries conservation and management
measures. There are still significant gaps, for example in the
coverage of non-tuna fisheries on highly migratory species
in the Arctic and in the Atlantic south of the NEAFC/NAFO
areas of responsibility. Until the end of 2009, there were
no general fisheries commissions in the Pacific at all to
manage non-highly migratory species. The treaty establishing the South Pacific Regional Fisheries Management
Organization (SPRFMO) was concluded in November 2009
and entered into force in 2012. Negotiations are still
ongoing for a North Pacific RFMO. In the Indian Ocean, the
Regional Commission for Fisheries (RECOFI) covers the Gulf
area and the Southern Indian Ocean Fisheries Agreement
(SIOFA), concluded in July 2006, entered into force in June
2012 (Freestone, 2008).
Fisheries governance arrangements exhibit considerable
diversity and varying rates of progress in their approaches
to incorporating environmental protection principles and
biodiversity conservation objectives into their management
regimes. Recent reviews of RFMO practice at the global
level reveal several factors that have limited the effectiveness of RFMOs in implementing fisheries conservation and
management measures in an ecologically sustainable
manner (HSTF, 2006) including the following.
●●
●●
Absence of environmental protection principles in the
RFMO conventions. The absence of modern environmental protection principles or guidelines such as the
precautionary approach and ecosystem-based manage­
ment in some RFMO conventions concluded prior to the
UN Fish Stocks Agreement means that unless all RFMO
members agree, they are not obliged to consider the
consequences of uncertainty when adopting
conservation and management measures.
Ineffective decision-making frameworks. It is the
established practice of RFMOs to take decisions on their
conservation and management measures by consensus,
even when their instruments may not require it, and to
allow for individual objections to conservation and
management measures agreed by the majority of
member States (McDorman, 2005). This allows objecting
●●
●●
●●
RFMO members to take advantage of uncertainties in
scientific advice and can lead to a dilution of conservation
and management measures even where the precautionary approach and ecosystem-based management
requirements exist. Many of the RFMOs that were
established prior to the conclusion of the UN Fish Stocks
Agreement allow for States to opt out or object to implementing conservation and management measures that
have been agreed within the RFMO.
Lack of a formal global coordination mechanism. There
is no overarching global coordination mechanism to
oversee the conservation and management activities of
RFMOs in marine areas beyond national jurisdiction
and monitor their performance against best-practice
standards and ensure cross-sectoral exchange of
information. This makes it difficult to address global
problems such as the conservation of highly migratory
marine species or illegal, unregulated and unreported
(IUU) fishing as fishing vessels may move between
regions concentrating their fishing effort in areas where
conservation and management measures are lax or
non-existent. At the regional level there has been very
little consultation and collaboration between RFMOs.
The first meeting between the tuna RFMOs, referred to
as the ‘Kobe Process’ after the first location of the first
meeting in Japan, occurred in 2007.
Participation levels. In many regions developing States
lack the resources and capacity to participate fully in
RFMOs and implement their obligations effectively.
Failure to deal effectively with non-Parties. Few RFMOs
include all the participants in a regional fishery among
their members. An RFMO may have agreed on environmentally sound conservation and management measures for fisheries in high-seas areas but only those
States which have agreed to be bound by its agreement
are obliged to apply its measures. The failure to deal
effectively with non-Parties or ‘free riders’ undermines
the incentives for fishing vessels of RFMO members to
adopt restrictive conservation and management measures (McDorman, 2005).
It is beyond the scope of this chapter to review all RFMOs
to determine in detail the extent to which environmental
protection principles and biodiversity conservation objectives are reflected specifically in their agreements and practice. What is clear however is the importance of an explicit
mandate for addressing both issues in the overarching
agreement. This is revealed through the performance of
two RFMOs highlighted here that are also directly charged
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Regional governance for fisheries and biodiversity
with precaution and conservation of associated species
and ecosystems: the Commission for the Conservation of
Antarctic Marine Living Resources (CCAMLR) and the
Western Central Pacific Fisheries Commission (WCPFC).
CCAMLR was established under the 1980 Convention on
the Conservation of Antarctic Marine Living Resources as an
integral element of the Antarctic Treaty system. It has a
specific mandate to conserve and manage all marine living
resources (except whales and seals) in the area south of
60 degrees latitude south and in the area between
60 degrees latitude south and the Antarctic Convergence.
CCAMLR’s conservation and management responsibilities
extend beyond fish species to molluscs, crustaceans and
birds found south of the Antarctic Convergence. The Con­
vention explicitly adopts a precautionary and ecosystembased approach to marine living resource management
which recognizes the complex interconnections between all
parts of the Antarctic ecosystem (Miller et al., 2004). Article
II(3) of the Convention sets out the various elements of
CCAMLR’s conservation and management approach which
allows for rational use of marine living resources in accordance with strict conservation principles. The three key
conservation principles which apply to harvesting of marine
living resources and associated activities are as follows.
(1) Prevention of decrease in the size of any harvested
population to levels below those which ensure its
stable recruitment. For this purpose its size should not
be allowed to fall below a level close to that which
ensures the greatest net annual increment.
(2) Maintenance of the ecological relationships between
harvested, dependent and related populations of
Antarctic marine living resources and the restoration of
depleted populations to the levels defined in sub-paragraph (1) above.
(3) Prevention of changes or minimization of the risk of
changes in the marine ecosystem which are not potentially reversible over two or three decades, taking into
account the state of available knowledge of the direct
and indirect impact of harvesting, the effect of the
introduction of alien species, the effects of associated
activities on the marine ecosystem and the effects of
environmental changes, with the aim of making possible the sustained conservation of Antarctic marine
living resources.
Since its inception in 1982, CCAMLR has adopted a
variety of innovative measures to implement its ecosystembased approach to conservation. These include banning
213
destructive fisheries practices such as bottom trawling for
particular fish species in the CCAMLR area, mandating
­measures to reduce incidental seabird mortality caused by
baited hooks in long-line fishing, monitoring the effects of
fishing on non-target species by collection of data on
CCAMLR member state fishing vessels and prohibiting
fishing for certain species by CCAMLR member State fishing
vessels where the risk to bycatch species is thought to be
too great. In 2011, they also adopted a conservation
­measure for rolling out a comprehensive system of marine
protected areas.
A potential weakness in the implementation of CCAMLR
conservation measures is the requirement for consensus in
decisions on matters of substance such as conservation
measures, and the availability of the objection procedure
for members to object later to measures for which they
may have voted. Despite consensus requirements and
­contentious meetings, CCAMLR has had some success in
implementing the most advanced interpretation of an
ecosystem-based approach to marine living resource
management in its Convention area (Kaye, 2000). However,
the effectiveness of CCAMLR’s management was almost
undone by its inability to regulate the activities of fishing
vessels of non-member States (Rayfuse, 2004). CCAMLR
adopted a standard suite of fisheries management measures until the mid-1990s, relying on: flag State implementation of conservation and management measures
supplemented by fisheries data reporting; at-sea and inport inspections by member States of fishing vessels and
their catch; and tracking the movement of member States’
fishing vessels through vessel monitoring systems and
notification of vessel movements. These measures proved
to be insufficient to stem increases in IUU fishing in the
CCAMLR Convention Area, particularly for Patagonian
toothfish, from the mid-1990s.
To address the problem of non-members and IUU
fishing, CCAMLR had to resort to trade-related sanctions on
a global basis. In 2000, CCAMLR introduced a Catch
Documentation Scheme (CDS) which prohibited entry into
world markets of Patagonian toothfish without verified
catch documents. The scheme has attracted the participation of non-member States and applies to toothfish fishing
by member States’ vessels and non-member States’ vessels.
In a relatively short period, the CDS has extended its
­coverage to more than 90% of the world’s toothfish trade
and reduced the profitability of this type of IUU fishing.
It requires flag State authorization for toothfish fishing
both within and outside the CCAMLR Convention area.
The scheme has had the side-benefit of refining global
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Governance of Marine Fisheries and Biodiversity Conservation
e­ stimates of toothfish catch to enable better management.
The importance of a strong mandate for biodiversity
conservation and precaution is also underscored in the
track record of the Convention on the Conservation
and Management of Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean (WCPFC Convention).
It was the first comprehensive conservation and manage­
ment regime for highly migratory fish stocks to reflect
the provisions of the 1995 UN Fish Stocks Agreement. The
WCPFC entered into force on 19 June 2004.
The objective of the Convention is to ensure, through
effective management, the long-term conservation and
sustainable use of highly migratory fish stocks in the
Western and Central Pacific Ocean in accordance with the
United Nations Convention on the Law of the Sea (UNCLOS)
and the UN Fish Stocks Agreement. The area of competence of the WCPFC includes a large area of high seas lying
outside and between the 200 nautical mile exclusive
economic zones of its Parties and its regulatory com­
petence extends to all fish stocks of the species listed in
Annex I of UNCLOS. The region covered by the WCPFC
Convention is estimated to have 60% of the world’s tuna
stocks (Aqorau, 2001). The WCPFC is empowered to adopt
principles and measures for conservation and management
of the highly migratory fish stocks in its area of competence
which reflect the key environmental protection principles
in the UN Fish Stocks Agreement. These include measures
based on the best scientific evidence available to ensure
sustainability and promote optimum utilization. The Com­
mission must apply the precautionary principle in accordance with the methodology set out in annex II of the UN
Fish Stocks Agreement, determine the impact of fishing
activities on non-target and associated or dependent
species and their environment and adopt plans, where
necessary, to ensure the conservation of species and protect habitats of special concern. The conservation measures to be taken by the Commission also include those
which protect biodiversity in the marine environment and
those which assess the impact of fishing activities on other
species belonging to the same ecosystem.
Since its inception, the WCPFC has introduced over 30
conservation and management measures ranging from
those addressing the level of fishing effort for highly migratory species such as big eye, albacore and yellow fin tuna,
sharks, marlin and sword fish and the impacts of fishing for
highly migratory species on seabirds, turtles and cetaceans
to the prohibition of drift net fishing and reciprocal boarding
and inspection procedures. Through an innovative measure to surmount the weaknesses of consensus-driven
decision-making, when consensus fails decisions on
­ atters of substance are to be taken by a three-quarters
m
majority of the members present. Decisions become
binding on parties 60 days after their notification but
­members voting against the decision or absent may, within
30 days of their adoption, seek a review of the decision. The
review process is another innovative element (Aqorau,
2001) as it can overcome the ‘opt out’ clauses common in
many RFMO conventions and which have the potential to
sabotage their conservation and management efforts. The
extensive list of conservation and management measures
of the WCPFC designed to mitigate the impact of fishing for
highly migratory species on associated and dependent
species in the Convention Area have the indicia of a precautionary approach and ecosystem-based considerations
being applied in the decision-making process within the
WCPFC.
Although somewhat slow and uneven, there has been
some progress in implementing these measures for promoting the conservation of vulnerable tuna stocks and
managing fishing capacity to mitigate its impacts on associated and dependent ecosystems (Parris, 2010). To address
the problem of non-members and IUU fishing, under
Article 24 of the WCPFC Convention flag States must ensure
that their fishing vessels do not engage in unauthorized
fishing for highly migratory fish stocks beyond national
jurisdiction and that as flag States they are able to effectively exercise their responsibilities for fishing vessels
operating under their flag. Flag States must maintain a
record of fishing vessels authorized to fish beyond national
jurisdiction and require such flag vessels to use real-time
satellite position-fixing transmitters so that they can participate in the vessel monitoring system established by the
Commission. The Commission has established measures
for Contracting Parties to board and inspect each other’s
fishing vessels on the high seas in accordance with the UN
Fish Stocks Agreement (UNFSA) model.
In contrast, the four other tuna RFMOs are still operating
under pre-UNFSA agreements. Attempts to update their
charters are not progressing rapidly, although such changes
have been called for by performance reviews undertaken by
the majority of these bodies as well as during the Kobe
Process. For example, the 2009 performance review of
the Indian Ocean Tuna Commission Agreement recommended that the IOTC Agreement be either amended or
replaced by a new instrument: ‘the absence of concepts
such as the precautionary approach and an ecosystem
based approach to fisheries management are considered to
be major weaknesses’ (Edeson, 2009). Similarly, in the review
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of the Commission on the Conservation of Southern Bluefin
Tuna (where the global population of bluefin tuna is ranked
on the IUCN Red List of threatened species as ­‘critically
endangered’, estimated to be 5% of the population size
before fishing began), the absence of agreed manage­
ment principles (e.g. the precautionary and ­ecosystems
approaches, efficient use, best scientific information, maintaining biodiversity and minimizing effects on the marine
environment) guiding management decisions was noted.
Similarly, an independent review of the Commission for the
Conservation of Atlantic Tunas in 2008 observed that its
management of bluefin tuna is ‘widely regarded as an international disgrace’ (Hurry et al., 2008).
Legal and institutional
frameworks for regional marine
environmental governance
Since the early 1970s, a diverse array of binding and nonbinding regional arrangements has been negotiated
around the globe to engage States in the collaborative protection of their offshore marine environments. Many of the
binding regional seas arrangements were initiated through
the United Nations Environment Programme (UNEP)
Regional Seas Programme while others are the result of
independent agreements between regional partners
(Vallega, 2002). They now cover 18 maritime regions which
differ markedly in their character and extent. The UNEP
regional seas arrangements, together with the non-UNEP
regional marine environmental protection arrangements,
involve 149 States, approximately 95.5% of the world’s
States. The areas of responsibility of many of these arrangements are currently limited to waters within national jurisdiction and very few of them make provision for consensual
­ igh-seas enclaves
environmental protection measures in h
and high-seas areas adjacent to waters within national
jurisdiction. The geographic scope of these arrangements
has been determined by political opportunity rather than
any systematic scheme to encompass all the oceanic
regions of the world (Boyle, 2000; Sand, 1999). No legally
binding conventions have yet been developed for the
regional arrangements in the East Asian Seas, South Asian
Seas, Northwest Pacific, Northeast Pacific or for the Arctic.
Moreover, these conventions are primarily groupings of
coastal states, and their jurisdiction is generally restricted
to their coastal zones or out to 200 nautical miles. The
­exceptions are: the OSPAR Convention area, which has
high-seas areas within its remit; the Mediterranean, where
215
most coastal states have for various reasons not yet claimed
EEZs; the South Pacific, which includes within its mandate
the ‘doughnut’ holes between the EEZs of its members; and
the Antarctic Treaty System, consisting of both the Antarctic
Treaty and its Protocol on Environmental Protection as well
as the CCAMLR Convention.
The spread of regional arrangements for marine environmental protection has paralleled the negotiation and
entry into force of UNCLOS and has both reflected and
advanced the development of modern environmental
protection principles (Treves, 2003). The early focus of
most regional arrangements such as the OSPAR
Convention and the Barcelona Convention in the
Mediterranean was the control of marine pollution, but
many have since adopted a more integrated approach to
the protection of the marine environment including
conservation of its biodiversity and the development of
systems of marine protected areas.
The broadening of their scope in relation to approaches
to conservation and targets for conservation intervention
has enabled many regional arrangements to assimilate
new developments in international environmental law
and policy through mechanisms such as protocols and
non-binding documents such as programmes for action
and strategic plans. The majority of regional agreements
are based on framework conventions which depend on
implementation by State Parties in waters within national
jurisdiction. These conventions have been supplemented
by Protocols, ministerial level agreements and strategy
documents which regulate different sources of marine
pollution, provide for the protection of threatened and
endangered species and the establishment of marine
protected areas to preserve rare or fragile ecosystems. In
most regions these binding legal instruments and softlaw accords are accompanied by planning documents
which define regional priorities for marine environmental
protection.
Key factors that have limited the effectiveness of RSAs in
implementing fisheries conservation and management
measures in an ecologically sustainable manner include
the following:
●●
●●
●●
the limiting of their areas of responsibility to waters
under national jurisdiction;
the lack of reference to sustainable development and
use of marine biodiversity in their mandates; and
the absence of specific collaboration provisions or
arrangements and mechanisms between RSAs and
RFMOs.
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Governance of Marine Fisheries and Biodiversity Conservation
Catalysts for collaboration on
fisheries and biodiversity
conservation objectives
Although much of the implementation of fisheries
conservation and management and biodiversity conserva­
tion measures in RFMOs and RSAs has occurred independently, there are some examples where better alignment or
even harmonization of fisheries and biodiversity conserva­
tion objectives has been triggered by a variety of catalysts.
These include: (1) recognition by global and regional organizations of the need to address transboundary threats to
marine living resources and marine biodiversity cooperatively; (2) resolutions and decisions of global bodies on
conservation of biodiversity in marine areas beyond
national jurisdiction; and (3) the incorporation of modern
conservation principles, reflecting those in the UNFSA, into
the mandates of RFMOs. This section examines some of
those examples and the catalysts which have led to varied
degrees of alignment and harmonization between fisheries
and biodiversity conservation objectives in different
regional settings.
Regional responses to
transboundary threats
The need to address the transboundary nature of threats
facing marine living resources and biodiversity in particular
regions both within and beyond national jurisdiction has
been a central catalyst for alignment or harmonization of
fisheries and biodiversity conservation objectives and collaboration between regional governance organizations
and alliances. Among the non-UNEP RSAs, the Northeast
Atlantic RSA has arguably demonstrated the capacity to
work with one of the relevant RFMOs to harmonize fisheries
and biodiversity conservation objectives. The Convention
for the Protection of the Marine Environment of the
Northeast Atlantic (OSPAR Convention) seeks to regulate a
wide spectrum of human activities which might have an
adverse effect on the protection and preservation of ecosystems and the biodiversity of the Northeast Atlantic,
while recognizing the competence of other organizations
for regulating fishing, shipping and seabed mining. Unlike
many other RSAs, there is an explicit provision in Annex V,
Article 4(1) of the Convention requiring consultation with
the responsible fisheries management organization where
fisheries issues arise. The OSPAR Convention applies in a
maritime area of the Northeast Atlantic defined in Article
1(a) of the Convention to include all the maritime zones
within the jurisdiction of the Contracting Parties and maritime areas beyond national jurisdiction. The Convention
has 16 Contracting Parties including the European Com­
munity. Most of its Parties are developed State members of
the European Union and its decisions are heavily influenced by European Union legislation and policy directives
on the environment (Lagoni, 2003).
The preamble of the OSPAR Convention reflects the
common objective of the Contracting Parties to provide
coordinated protection and sustainable management for
the whole maritime environment of the Northeast
Atlantic so that the marine ecosystems will continue to
sustain the legitimate uses of the sea and meet the needs
of present and future generations. To achieve this
objective the Contracting Parties must, under the two
limbs of Article 2(1)(a) of the Convention, take all possible
steps to prevent and eliminate pollution from the maritime area and to protect the maritime area against the
adverse effects of human activities in order to safeguard
human health and conserve marine ecosystems. In
implementing programmes and measures under the
­
Convention, the Contracting Parties must apply the precautionary principle, ‘the polluter pays’ principle and
ensure the application of best-available techniques and
best environmental practice. As a demonstration of its
evolutionary character, in 1998 OSPAR adopted Annex V
on the Protection and Conservation of the Ecosystem and
Biological Diversity of the Maritime Area, extending the
cooperation of the parties to cover ‘all human activities
that might adversely affect the marine environment of
the North East Atlantic’ other than fishing and shipping. In
2003 it adopted its Biological Diversity and Ecosystems
Strategy, setting forth its commitment to designate a representative network of MPAs by 2010.
OSPAR’s cooperation with the principal RFMO responsible for managing fisheries in the region, NEAFC, was
enabled in many ways by its parallel evolution, as described
in the next section.
The boundaries of the other regional seas program in
the Atlantic Ocean do not extend to areas beyond
national jurisdiction; there has therefore been to date little interaction with the RFMOs. The CBD-driven process to
describe Ecologically or Biologically Significant Areas
(EBSAs) both within and beyond national jurisdiction is
likely to create a new need, however. The limitations of
the current geographical ambits of both the regional
environmental and fisheries treaties is highlighted by the
initiative, led by the Government of Bermuda, to introduce
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Regional governance for fisheries and biodiversity
conservation and management measures for the Sargasso
Sea. The Sargasso Sea, named for the accumulations of
holopelagic algae contained within the North Atlantic
Subtropical Gyre, is a 2 million square nautical mile ecosystem that is primarily high seas. The OSPAR Secretariat
and the Sargasso Sea Alliance have established informal
research and information exchange systems and have
concluded a Collaboration Arrangement. The Alliance is
seeking to use existing sectoral organizations such as
ICCAT, IMO and ISA to put protection measures in place
and to convene an inter-governmental meeting to establish a collaborative but non-legally binding protection
regime for the Sargasso Sea (Freestone and Killerlain
Morrison, 2012).
The Global Environment Facility (GEF) has funded a
number of fisheries and biodiversity conservation projects
conducted on the scale of large marine ecosystem (LME).
LMEs are defined as ‘regions of ocean space encompassing
coastal areas from river basins and estuaries out to the seaward boundary of continental shelves and the seaward
boundary of coastal current systems’ (Alexander, 1993;
Sherman, 1994). Sixty-four LMEs around the globe,
including many of the world’s enclosed and semi-enclosed
seas, have been defined as areas of ocean space in which
ecosystem-based management can be applied to maintain
and restore ecosystem function while allowing sustainable
use (Fanning et al., 2007). The LME approach has formed
the basis for an array of GEF-funded projects to promote
integrated marine ecosystem governance of LMEs (Duda
and Sherman, 2002; Sherman, 2006).
One such GEF-initiated LME project, the Agulhas and
Somali Current Large Marine Ecosystem (ASCLME), combines the Agulhas Current Large Marine Ecosystem
(ACLME) which stretches from the northern end of the
Mozambique Channel to Cape Agulhas and the Somali
Current Large Marine Ecosystem (SCLME) which extends
from the Comoros Islands and the northern tip of
Madagascar to the Horn of Africa. The project covers the
countries of Comoros, Kenya, Madagascar, Mauritius,
Mozambique, Seychelles, Somalia, South Africa and
Tanzania. The objectives of the ASCLME include:
●●
●●
gathering new and important information about ocean
currents and how they interact with and influence climate, biodiversity and the economies of the western
Indian Ocean region;
documenting the environmental threats that are faced
by the countries of the region in a Transboundary
Diagnostic Analysis (TDA);
●●
●●
217
developing a Strategic Action Plan (SAP) which sets out
a strategy for the countries to collectively deal with
transboundary threats; and
strengthening scientific and management expertise,
with a view to introducing an ecosystem-based
approach to managing the living marine resources of
the western Indian Ocean region.
One of the key achievements of the ASCMLE project
has been to initiate the establishment of a regional
coordinating mechanism, the Western Indian Ocean
Sustainable Ecosystem Alliance (WIOSEA), to implement
the SAP for the region using the existing mandated regional
bodies which already have responsibility for the manage­
ment of marine living resources (e.g. the Nairobi Convention
and the South West Indian Ocean Fisheries Commission). In
September 2011 the ASCLME signed an Aide Memoire for
Cooperation and Collaboration with the South West Indian
Ocean Fisheries Project (SWIOFP), a GEF-supported project
­implemented by the World Bank which is also focused on
the western Indian Ocean region and covering the same
countries as the ASCMLE.
Through their Aide Memoire the ASCLME and SWIOF
projects have agreed to share data and information and
undertake joint research cruises which enhance understanding of the region’s ecosystems and help to set a baseline from which long-term ecosystem monitoring programs
can be derived. They will also cooperate in a policy and
governance assessment designed to produce agreed recommendations for implementing an ecosystem-based
approach to management of marine and coastal resources
in the region.
A similar example of a non-binding regional initiative
which forms the basis for biodiversity conservation objectives is the Coral Triangle Initiative (CTI) involving countries
in Southeast Asia and the Pacific. The Coral Triangle is a
region located along the equator at the confluence of the
Western Pacific and Indian Oceans which covers all or part
of the exclusive economic zones (EEZs) of six countries
(Indonesia, Malaysia, the Philippines, Papua New Guinea,
the Solomon Islands and Timor Leste). It is regarded by scientists as one of the richest repositories of marine biodiversity on earth, containing 76% of all known coral species,
37% of coral reef fish, 33% of the world’s coral reefs and the
most prolific location for mangrove forests and spawning
and juvenile growth areas for the world’s largest tuna
fishery. Threats to the Coral Triangle region include overfishing, destructive fisheries practices, land-based sources
of marine pollution and the ravages of climate change. The
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Governance of Marine Fisheries and Biodiversity Conservation
CTI was proposed by Indonesia in 2007 as a multilateral
partnership to protect the region’s coastal and marine
resources. The member States (Indonesia, the Philippines,
Malaysia, Timor Leste, Papua New Guinea and the Solomon
Islands) have committed to five overall goals over ten years:
●●
●●
●●
●●
●●
the designation of priority seascapes;
implementing an ecosystem-based approach to manag­
ing fisheries and other marine resources;
the establishment of marine protected areas;
developing strategies to adapt to climate change; and
the protection of threatened species.
The member States have also committed to guiding
principles including the recognition of the transboundary
nature of important marine resources and the need to align
their activities with existing international law instruments such
as UNCLOS, the Convention on Biological Diversity (CBD),
regional fisheries management agreements and the UN
Framework Convention on Climate Change (UNFCCC). The
first five years of this initiative have revealed the considerable challenges involved in managing the heterogeneous,
multiscale and interlinked nature of large-scale marine
­
systems, and prompted analysts to recommend dynamic
­
approaches to governance which link diverse institutional
arrangements at multiple scales and involve regular adjustments to ­governance arrangements (Fidelman, 2012).
Resolutions and decisions
of global bodies
Another driver for regional harmonization and integration
has been resolutions and decisions of global bodies such
as the United Nations General Assembly (UNGA), the
Convention on Biological Diversity (CBD) and the Food and
Agricultural Organization (FAO). On the basis of growing
concern about the adverse impacts of high-seas bottom
fishing on vulnerable marine ecosystems, in its 2006
Resolution 61/105 the UNGA called upon States
‘…to take action immediately, individually and through
regional fisheries organizations and arrangements, and
consistent with the precautionary approach and ecosystem approaches, to sustainably manage fish stocks
and protect vulnerable marine ecosystems (VMEs),
including seamounts, hydrothermal vents and cold water
corals, from destructive fishing practices, recognizing the
immense importance and value of deep sea ecosystems
and the biodiversity they contain (Fidelman, 2012)’.
Under the resolution, Member States and RFMOs were
required to manage fisheries to prevent significant adverse
impacts to VMEs (cf. Chapter 14). To assist States in
­implementing the resolution, the FAO produced a set of
International Guidelines for the Management of Deep
Sea Fisheries in the High Seas (The Deep Sea Fisheries
Guidelines). The principal objective of the Guidelines is to
ensure the long-term conservation and sustainable use of
deep-sea resources and to prevent significant adverse
impacts to VMEs from activities related to such exploitation.
This is achieved through a requirement to conduct assessments to establish if deep-sea fishing activities are likely
to cause significant adverse impacts in a given area, and
to adopt management measures to prevent such impacts
such as fisheries closures in areas around VMEs. As a last
resort, encounter protocols require fishing vessels to move
a minimum distance from a location where species
­indicating the presence of a VME are captured by their gear.
Although there are still significant problems with implementing the Deep Sea Fisheries Guidelines in a sufficiently
precautionary manner, the fact that progress in implementation of the UNGA Resolutions and the Guidelines has
been reviewed twice by the UNGA may be a significant
factor in prompting many RFMOs to close areas to fishing
based on the presence or likely presence of VMEs (Auster
et al., 2011; Gianni et al., 2011). The CBD has also been active
in aligning and harmonizing fisheries and biodiversity
conservation objectives at the regional level through the
provision of expert advice on describing marine Areas of
Ecological or Biological Significance (EBSAs) and in addressing biodiversity concerns in sustainable fisheries. In 2008,
the Ninth Meeting of the Conference of Parties (CoP9) of
the CBD adopted the following scientific criteria for identifying ‘ecologically or biological significant areas in need of
protection in open ocean waters and deep sea habitats’:
●●
●●
●●
●●
●●
●●
●●
uniqueness/rarity;
special importance for life history stages of species;
importance for threatened, endangered or declining
species and/or habitats;
vulnerability, fragility, sensitivity or slow recovery;
biological productivity;
biological diversity; and
naturalness.
This decision also provided scientific guidance for selecting
areas to establish a representative network of marine protected areas including in open-ocean waters and deep-sea
habitats. The 10th CBD CoP in 2010 agreed on a process of
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regional workshops for the description of EBSAs. The workshop outcomes are meant to inform relevant regional and
global organizations. The work is premised on recognition
that: the application of the EBSA criteria is a scientific and
technical exercise; areas found to meet the criteria may
require enhanced conservation and management measures;
this can be achieved through a variety of means including
marine protected areas and impact assessments; and the
identification of EBSAs and the selection of conservation and
management measures is a matter for States and competent
intergovernmental organizations, in accordance with international law, including UNCLOS.
Regional workshops on describing EBSAs have been
organized covering the Northeast Atlantic, the Western
South Pacific, the Wider Caribbean and Western MidAtlantic, the Western Indian Ocean and the Eastern Tropical
and Temperate Pacific. In addition, areas meeting
EBSA compatible criteria have been described in the
Mediterranean. At the CBD CoP 11 in Hyderabad in
October 2012, after review and endorsement by CBD
SBSTTA it was agreed that the areas described as EBSAs by
these workshops and processes should be sent to the UN
and relevant international organizations. In this manner the
information on EBSAs can provide valuable information to
RFMOs and their scientific commissions in the setting of
priorities for conservation and management measures for
biodiversity conservation purposes.
Another contribution by UNEP and the CBD has been
their efforts to convene experts in biodiversity and fisheries
to discuss topics of common concern. In September 2009 in
Rome, FAO, UNEP and CBD convened an expert meeting on
impacts of destructive fishing practices, unsustainable
fishing and IUU fishing on marine biodiversity and habitats
with the collaboration of the IUCN Fisheries Expert Group. In
December 2011 the CBD Secretariat convened a joint expert
meeting (in Bergen) with the same partners, to review the
extent to which biodiversity concerns are addressed in
existing assessments of fisheries stocks and to propose
options to address biodiversity concerns. This meeting also
brought together representatives of RFMOs and other relevant organizations, processes and scientific groups.
The meeting report noted (CBD, 2012) that there is much
attention paid to the major biodiversity considerations in
the RFMO conventions and overarching high-level policies,
but implementation is often highly variable and inadequate. In some cases, efforts were constrained by: (1) the
primacy to single-species Maximum Sustainable Yield
(MSY) goals; and (2) limits on knowledge of ecosystems
and the fisheries and on capacities for assessments and
219
management. The expert meeting recommended a number
of options for enhancing the treatment of biodiversity considerations in fisheries policy, assessment and management
including:
●●
●●
●●
●●
making CBD expertise on biodiversity assessment
and selection of practical indicators for status and trends
in biodiversity available to fisheries assessment and
manage­ment agencies;
contributing CBD expertise to modelling work and
other studies of longer-term ecosystem-scale changes
due to climate change, aggregate impacts of multiple
uses and other scenarios and making the results of such
studies available to sectoral regulatory agencies,
including fisheries agencies, when they are dealing with
factors such as the robustness of harvesting strategies;
CBD initiating or supporting pilot projects for fisheries
and biodiversity conservation communities to work
together and illustrate the concrete benefits of collaboration; and
CBD being a major contributor to capacity-building initiatives for fisheries management agencies dealing with
biodiversity considerations.
Updating mandates to include
modern conservation principles and
the need for collaboration between
RFMOs and RSAs
A further catalyst for alignment and harmonization of
fisheries and biodiversity conservation objectives is
­
the inclusion of modern conservation principles such as
the precautionary and ecosystem-based approaches in
the mandate of RFMOs established before the UNFSA
was adopted.
The North East Atlantic Fisheries Commission (NEAFC)
was originally formed to recommend measures to maintain
the rational exploitation of fish stocks in the Atlantic and
Arctic Oceans. It has regulatory competence over three
large maritime areas beyond national jurisdiction in
the Northeast Atlantic Ocean and may recommend
conservation and management measures for all fisheries
resources within its Convention Area with the exception of
sea mammals and sedentary species and tuna or tuna-like
species. In 2006 the NEAFC Convention was amended to
include a principal objective of ensuring the long-term
conservation and optimum utilization of the fishery
resources in the Convention Area, providing sustainable,
environmental and social benefits (cf. Chapter 16). Under
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Article 4 of the amended Convention, NEAFC must conserve marine biological diversity and control the impact of
fisheries on other species and marine ecosystems consistent with this objective. The impact of the change in mandate has been demonstrated through agreed conservation
and management measures for fisheries with up to 50% of
the fishable area closed to fisheries and strict regulations of
bottom fishery in the rest of the area.
NEAFC’s incorporation of biodiversity considerations
into its fisheries conservation and management measures has also been facilitated by its close working relationship with OSPAR. OSPAR and NEAFC signed a
memorandum of understanding in 2008 and both organizations use ICES as their scientific advisory body. ICES
has recommended that a coordinated approach be taken
between the two organizations in the protection of vulnerable marine ecosystems and there has been considerable overlap between areas proposed for protection by
OSPAR and those considered for closure to bottom
fishing by NEAFC.
Pathways to improved collaboration
on regional fisheries and biodiversity
conservation governance
Recognizing that there is considerable diversity among
regions in progress towards alignment and harmonization
of fisheries and biodiversity conservation goals, this section
explores potential pathways to improve regional governance for fisheries and biodiversity conservation. The
­complex challenges involved in implementing an ecosystem-based approach to fisheries management and the
variable capacities of particular regions to meet that
­
objective demands that a broad suite of options be examined, including: (1) expanding the inter-regional capacities
of fisheries and biodiversity governance bodies to align
their objectives; and (2) strengthening their collaboration
with relevant global, intra-regional and national level organizations. Different models for cooperation and collaboration on fisheries and biodiversity objectives are described
in the following sections.
Intra-regional options
Better inter-regional alignment of fisheries and biodiversity
conservation objectives could be achieved by:
●●
recognition and incorporation of modern conservation
principles such as the precautionary and ecosystem-
●●
●●
●●
●●
●●
●●
●●
based approaches and agreed global, regional and
national biodiversity conservation targets into the mandates and policies of RFMOs, RSAs and LME projects;
exchange of information on the status of the marine
environment, its resources and biodiversity between
governance bodies, e.g. regarding biodiversity data and
EBSAs on which RFMOs could act;
consultation and cooperation in implementing con­
servation and management measures as exemplified
by OSPAR and NEAFC as well as ASCLME and SWIOFP;
instituting collaborative processes such as strategic
environmental assessment and marine spatial planning
across regions that involve RFMOs and RSAs as well as
other sectoral players in the marine environment;
developing a common scientific baseline for fisheries
and biodiversity conservation measures and recourse
to a common scientific advisory body such as ICES in a
particular region;
making a commitment to cooperate on specific pilot
projects between RFMOs and RSAs to build commitment for resolving broader challenges facing both fisheries and biodiversity conservation agencies, cement­ing
and fostering working relationships b
­ etween both
sectors;
undertaking direct collaboration between fisheries and
biodiversity conservation bodies at the regional level,
promoting openness to receiving input from NGOs and
IGOs; and
strengthening collaboration at the national level
amongst the responsible ministries for fisheries and biodiversity conservation, local communities and industry
players (Gjerde et al., 2010).
In addition, new protocols or agreements to pursue
processes such as environmental impact assessment (EIA),
strategic environmental assessment (SEA) and marine
spatial planning (MSP) at a regional scale could provide a
more legally-binding science-based framework for crosssectoral cooperation and management in fisheries and
biodiversity conservation objectives. Eventually States
­
may wish to consider moving towards a cross-sectoral
coordinating mechanism or organization with representatives from the adjacent coastal states as well as relevant
sectoral organizations, both global and regional. Such an
organization could reflect more comprehensive objectives
and may be able to implement a genuine marine spatial
planning process for ABNJ which could align and harmonize fisheries and biodiversity conservation objectives in
cooperation with comparable national initiatives.
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Regional governance for fisheries and biodiversity
The exchange of scientific information on fisheries and
biodiversity between regional governance bodies in adjacent or proximate regions can provide a starting point for
enhanced cooperation and collaboration in achieving
alignment and harmonization of fisheries and biodiversity
conservation goals. Adjacent or proximate regions can also
collaborate in developing complementary fisheries and
biodiversity conservation objectives and action plans,
­particularly where fish stocks and vulnerable marine ecosystems straddle both regions. At a more advanced stage,
adjacent regions could also collaborate in developing strategic action plans to conserve and manage fisheries and
biodiversity in the transboundary context and in proximate
areas beyond national jurisdiction.
There is an increasing willingness to cooperate across
sectors through memoranda of understanding and other
agreements, as evidenced in the North East Atlantic and
ASCMLE case studies considered above. This has led to joint
work programs, joint meetings and participation at each
other’s meetings and scientific committees. Underpinning
such agreements must be an understanding of the benefits such as certainty, prevention of duplication and increase
in efficiency in achieving agreed goals and targets, the process for cooperation, and the human and financial
resources committed.
Global connections
Developing stronger links between fisheries and biodiversity conservation bodies at the regional level and relevant
global organizations (cf. Chapters 10 and 11) has clear and
ongoing benefits. The best-practice standards developed
by global organizations such as the FAO and CBD have
already contributed to the alignment and harmonization of
fisheries and biodiversity conservation objectives at the
regional level and have the potential to contribute further.
The CBD Guidelines on EBSAs and EIAs could further assist
in establishing a common approach to identification of
areas and management of risks to marine biodiversity while
respecting the varying competences of the regional and
sectoral bodies (cf. Chapter 14). At the same time, the
wealth of new scientific and technical data and information
from RFMO efforts to identify VMEs, from the ISA scientific
and planning initiatives as well as from the Census of
Marine Life and other scientific initiatives, can inform
the conduct of EIAs and SEAs and help to identify EBSAs
at the regional level. The development of a CBD-based
global inventory of EBSAs in marine areas beyond national
jurisdiction is providing a process for stimulating and
221
coordinating cross-sectoral cooperation at the regional
level and a globally accessible list of recognized EBSAs for
conservation and management purposes.
At the regional level, RFMOs and States could be
requested to cooperate in the protection of EBSAs vulnerable to deep-sea or pelagic fishing impacts in the high seas,
particularly pursuant to the provisions of the UNFSA for
highly migratory and straddling fish stocks. This could be
achieved through the adoption of binding management
measures including spatial or temporal closures (year
round, dynamic or seasonal), effort or gear restrictions,
catch or bycatch quotas to reduce impacts on EBSAs or
VMEs or other areas and the requirement of full reporting of
catches validated by some level of independent observer
coverage. The FAO has also published many guidelines and
international plans of action for the conservation and
management of species such as sharks, sea turtles and sea
birds, the prevention of illegal, unregulated and unreported
fisheries and the management of bycatch and reduction of
discards. These guidelines could also include measures to
reduce the catch of vulnerable species in areas where they
are most at risk, using the EBSA criteria for endangered and
threatened species or special importance for the life history
of species.
The potential importance of global level stimulus
through UNGA resolutions for example or a possible new
multilateral agreement under UNCLOS should also be
highlighted. Many States are already calling for a new
implementing agreement to UNCLOS to address the
conservation and sustainable use of marine biodiversity
beyond national jurisdiction. A new global agreement
could enhance efforts towards regional cooperation based
on common goals and objectives. It could also seek to fill
the gaps where no RSAs exist, stimulate capacity building
and technology transfer and enhance scientific cooperation and coordination (Gjerde and Rulska-Domino, 2012).
In the short term, the Kobe Process and the five tuna
RFMOs could give higher priority to issues related to movements of highly migratory species and their implications
for management (oceanic MPAs, interactions between
­fisheries) and the impact of fish aggregating devices (FADs)
on oceanic ecosystems. The GEF-funded ABNJ Program
may also be important, with the programme goal of promoting efficient and sustainable management of fisheries
resources and biodiversity conservation in ABNJ, in accordance with the global targets agreed in international
forums. The programme, led by the FAO in close collaboration with partners, comprises four projects: (1) sustainable management of tuna fisheries and biodiversity
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Governance of Marine Fisheries and Biodiversity Conservation
conservation in the ABNJ; (2) sustainable fisheries
management and biodiversity conservation of deep-sea
living resources and ecosystems in the ABNJ; (3) oceans
partnership fund; and (4) strengthening global capacity to
effectively manage ABNJ. The GEF total of $43,547,119 in
indicative funding is expected to catalyse $222,741,000 in
co-financing (Turner, 2012). If spent wisely, fairly and transparently, this project could go a long way towards stimulating collaboration for sustainable fisheries management
and biodiversity conservation in ABNJ.
Conclusions
Alignment of fisheries and biodiversity conservation objectives varies considerably across regions with relatively high
levels of integration occurring in some regions, such as the
Antarctic and the Northeast Atlantic, and embryonic levels
of coherence in the Western Indian Ocean and South East
Asia. There are many reasons for this diversity including: the
lack of primacy given to modern conservation principles in
some RFMO agreements and policies; the lack of technical
expertise and resources to implement ecosystem-based
conservation and management measures for fisheries and
biodiversity at the regional level; the absence of cross-institutional connections and collaboration between fisheries
and biodiversity conservation organizations; and slow
uptake by regional bodies of global best-practice standards
for fisheries and biodiversity conservation. The absence of a
global level mandate for cooperation and regular mechanisms for performance review are also important.
Some of the key ingredients for progressing enhanced
alignment of fisheries and biodiversity conservation objectives at the regional level could include:
(1) a focus on creating partnerships or platforms for crosssectoral discussions and collaboration between fisheries and biodiversity conservation organizations within
and across regions;
(2) the incorporation of modern conservation principles
into RFMO Conventions and a commitment to implement them in fisheries conservation and management;
(3) the incorporation of sustainable-use principles in RSA
Conventions and a commitment to address them in
marine biodiversity conservation and management;
(4) the incorporation of global best-practice standards for
fisheries and biodiversity conservation management in
the policies and practices of RFMOs and RSAs and a
commitment to implement them;
(5) the development of a common science advisory
foundation for fisheries and environmental bodies to
use as a starting point for their policies and management
measures;
(6) a commitment to share data across fisheries and biodiversity conservation sectors (e.g. biodiversity data can
feed into the RFMO consideration of conservation and
management measures and, if EBSAs are identified,
RFMOs can take that information into account in adopting particular measures);
(7) a clear understanding from all sides of the benefits of
cooperation, the processes that will be used and the
resources that each side is committing;
(8) the eventual development of a coordinating mechanism and strategic action plan for fisheries and biodiversity conservation in particular regions; and
(9) a global level agreement for conservation and sustainable use of marine biodiversity in ABNJ which enhances
mandates for regional cooperation, accompanied by a
global mechanism for oversight, coordination and
capacity development.
The model for enhanced alignment and harmonization
of fisheries and biodiversity conservation will be different
for each region but is likely to contain most of the elements
listed above in a form tailored to the political and governance characteristics of the particular region. Multiple benefits will flow from the convergence of fisheries and
biodiversity conservation objectives at the regional level.
Some of these benefits have been highlighted by the
­collaboration between RFMOs and RSAs such as NEAFC
and OSPAR discussed above and by the CBD in their new
10-year Strategic Plan for Biodiversity 2011–2020 and
include, in Aichi Target 6:
‘…the sustainable management and harvest of all
fish and invertebrate stocks and aquatic plants
applying ecosystem based approaches so that overfishing is avoided, recovery plans and measures are in
place for all depleted species, fisheries have no
significant adverse impacts on threatened species
and vulnerable ecosystems and the impacts of fisheries on stocks, species and ecosystems are within
safe ecological limits.’
The achievement of the CBD’s target will, to a large
extent, be dependent upon continuing efforts to align and
harmonize fisheries and biodiversity conservation objectives
at the regional level.
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