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UNEP: TRAINING WORKSHOP
ON ECOSYSTEM APPROACHES
TO COASTAL AND OCEAN
MANAGEMENT
Focus on Ecosystems Based Management in Eastern Africa:
Institutional and Legislative Frameworks for an EA at the Regional
Level, including cross sectoral and transboundary aspects
By Akunga Momanyi
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A. Introduction and Overview
• This presentation is part of generic
understanding of ecosystem approaches to
management of coastal and oceanic resources.
It follows upon the thematic discussion on
“Developing an Ecosystem Approach”, which has
covered (a) basic concepts and approaches; (b)
the necessity of adopting an ecosystem
approach; and (c) international law and policy
instruments for an ecosystem approach. The
latter has covered the main international law
framework for EA
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A. Introduction and Overview contd
• This presentation will focus on the Western
•
Indian Ocean regional legal and institutional
frameworks for EA, including cross sectoral and
transboundary aspects.The main framework is
provided by the 1985 Nairobi Convention and its
Protocols.
The presentation will seek to emphasize the
need to increase awareness of EA and its
effective implementation across the Region, as
well as increased integration between national
and regional institutions concerned with coastal
and marine environment.
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B. Regional Legal and Institutional
Frameworks for EA
• The WIO Region has, alongside other
regions of the world, gradually responded
to the ecosystem approach. The 1985
convention and its protocols have
provisions in this regard, and its
conference of parties (COP) has also made
relevant decisions regarding EA. There are
also other supportive instruments, as well
as institutions
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B. Regional Legal and Institutional
Frameworks for EA contd
The 1985 Nairobi Convention and Its Protocols
• The 1985 Nairobi Convention was developed against the
background of the 1982 United Nations Convention on
the Law of the Sea(1982 UNCLOS), but before the latter
came into effect. The 1982 UNCLOS has several
provisions which are consistent with EA.
• At the level of principles, although the Convention was
not expressive of important international environmental
law principles, its proposed revisions include references
to the precautionary principle; the polluter pays
principle; and the promotion of integrated coastal zone
management.
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B. Regional Legal and Institutional
Frameworks for EA contd
• Its provisions concerning pollution from various sources,
•
including ships (Art. 5); dumping (Art. 6); land based
activities (Art. 7); seabed activities (Art.8); and air borne
pollution( Art.9), are all arguably supportive of EA, to the
extent that they cover the Convention area in totality, as
opposed to specific species
In addition, the Convention establishes protected areas
and provides as follows: “The Contracting Parties shall,
individually or jointly, take appropriate measures to
protect and preserve rare or fragile ecosystems as well
as rare, depleted, threatened or endangered species of
flora and fauna and their habitats in the Convention
area.”
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B. Regional Legal and Institutional
Frameworks for EA contd
• More over, the provisions concerning pollution
from oil pollution emergencies (Art. 11) and
from engineering activities (Art.12) imply
ecosystem wide protection. In fact, Art 12 is
categorical: “The Contracting Parties shall take
all appropriate measures to prevent, reduce and
combat environmental damage in the
Convention area in particular the destruction of
marine and coastal ecosystem…”
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B. Regional Legal and Institutional
Frameworks for EA contd
• Under its provisions for environmental
impact assessment (EIA), the Convention
provides for the establishment of technical
guidelines, assessment of impacts of
projects and dissemination of relevant
information and consultations among the
contracting parties, and including the
Organization.
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B. Regional Legal and Institutional
Frameworks for EA contd
• Although EIA provisions typically are
narrowly applicable to proposed projects
with likely environmental impacts, and
there is no explicit provision for strategic
environmental assessments (SEA) and
audit (EA) in the Convention, it may be
argued that they provide an important
regional framework for awareness raising
and effective implementation of
ecosystem approaches.
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B. Regional Legal and Institutional
Frameworks for EA contd
• The proposed revisions to the Nairobi
Convention include clear provisions for
compliance and enforcement of its provisions,
including ecosystem approaches. They include
urging the contracting parties to establish
national laws and institutions, and undertake
exchange of information, assistance and
cooperation among themselves and with
relevant international, regional and sub regional
organizations.
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B. Regional Legal and Institutional
Frameworks for EA contd
•
•
This would not only lead to more effective
implementation of EA, but also increase integration
between national and regional institutions in the
development and management of projects and
programmes, and especially those having cross sectoral
and trans boundary aspects..
On institutional arrangements, the Nairobi Convention
provides for “the Organization", which is defined as
“the body designated as responsible for carrying out
secretariat functions pursuant to article 16 of this
Convention.”
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B. Regional Legal and Institutional
Frameworks for EA contd
• Under Article 16 thereof, the UNEP is identified
•
as the Organization, and it provides the main
regional institutional framework for the
implementation of the provisions of the Nairobi
Convention.
UNEP provides routine secretariat functions,
receives and transmits information, coordinates
implementation of cooperative activities as
agreed by the contracting parties, and ensures
necessary coordination with other regional and
international bodies.
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B. Regional Legal and Institutional
Frameworks for EA contd
• In this regard, UNEP should lead the way in increasing
•
integration between national and regional institutions in
the development and management of projects and
programmes that enhance EA.
The conference of parties (COP) is the supreme decision
making organ of the contracting parties to the Nairobi
Convention.The last COP 5 held in November 2007 in
Johannesburg, South Africa, made the following
decision: “CP 5/2. Protection of ecosystems and
endangered species: 1.To endorse and support the
use of the eco-system based management approach,
including the involvement of up stream countries, for the
conservation of the coastal and marine areas of the
Region.”
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B. Regional Legal and Institutional
Frameworks for EA contd
•
•
COP 5 of the Nairobi Convention also decided as follows regarding
revisions to the Convention: “To note the progress being made in
the revision of the Nairobi Convention and to request the
Secretariat to organise the negotiation to finalise the text of the
revised Convention and to convene a a Conference of
Plenipotentiaries to adopt the revised Convention by end of
December 2009”
The revision of the Nairobi Convention provides an excellent
opportunity to entrench ecosystem approaches to the
management of coastal and marine resources in the Region.
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B. Regional Legal and Institutional
Frameworks for EA contd
Nairobi Convention Protocols
• There are two protocols established at the same
time as the Convention in 1985: Protocol Concerning
•
Protected Areas and Wild Fauna and Flora in the Eastern Africa
Region (SPAW) and Protocol Concerning Co-operation in
Combating Marine Pollution in Cases of Emergency in the
Eastern African Region (Emergency Protocol).
In addition, there is a draft Protocol on Land based sources and
activities causing marine and coastal pollution and degradation
(LBSA Protocol) which is at an advanced stage of development.
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B. Regional Legal and Institutional
Frameworks for EA contd
• COP 5 of the Nairobi Convention decided as follows: “To note request the
•
Secretariat to organise the negotiation to finalise the text of the LBSA
protocol and to convene the progress being made in the revision of the
Nairobi Convention and to request the Secretariat to convene a Conference
of Plenipotentiaries to negotiate and adopt the Protocol by end of
December 2009.”
The development of the LBSA Protocol to the Nairobi Convention also
presents another excellent opportunity to further entrench an ecosystem
based approach to the management of coastal and marine resources. It
sets out provisions concerning pollution and degradation from various
sources; measures of implementation and enforcement (including EIA, SEA
and EA, public awareness and information dissemination); and institutional
and financial arrangements. Its institutions are largely similar to those of
the Convention itself.
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B. Regional Legal and Institutional
Frameworks for EA contd
• The SPAW Protocol is the most direct with
•
regard to ecosystem approaches as it deals with
the thematic areas of biological diversity.
However, as currently drafted, it appears to
adopt a largely species approach as
demonstrated by the annexes forming part of
the Protocol. The annexes basically list species
of fauna and flora requiring protection, and
characterized as endangered or threatened, thus
limiting the scope for protection of entire
ecosystems in the WIO Region.
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B. Regional Legal and Institutional
Frameworks for EA contd
• Nevertheless, the SPAW has important ecosystem approach-friendly
provisions, such as those dealing with the general obligation of the
contracting parties to “… endeavour to protect and preserve rare or
•
fragile ecosystems as well as rare, depleted, threatened or
endangered species… (Article 2 (1); the prohibition of the
intentional or accidental introduction of alien new or genetically
modified species which may cause significant or harmful changes
to the Eastern African region (Art 7(1); establishment of protected
areas including representative samples of all types of ecosystems
in the WIO Region (Article 8(2);with particular regard, among
others, to rare or fragile ecosystems.
The system of protected areas perhaps provides the closest
attempt by the SPAW in embracing the ecosystem approach, as
opposed to its predominantly species approach.
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B. Regional Legal and Institutional
Frameworks for EA contd
• To its credit, the SPAW Protocol has important public
•
awareness and information provisions, which should
enable public involvement, better implementation and
enforcement, as well as integration of national and
regional programmes and processes.
The provisions specifically concern publicity and
notification (Art.14); public information and education
(Art 15); regional cooperation and mutual
assistance( Art.16);scientific, technical and management
research (Art 17); and exchange of information (Art. 18).
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B. Regional Legal and Institutional
Frameworks for EA contd
• The proposed revisions to the SPAW
Protocol, alongside the Convention itself,
provides the opportunity to re model it
more towards the ecosystem approach.
Apart from moving from the current title
that refers to fauna and flora, it should
move to “biological diversity,” and create
provisions that are explicitly ecosystem
approach based.
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B. Regional Legal and Institutional
Frameworks for EA contd
The Emergency Protocol
• While the Emergency Protocol focuses squarely on oil
spill pollution incidents of a scale that causes
environmental emergencies, it is arguably ecosystem
approach friendly to the extent that it seeks to protect
entire sections of the marine and coastal environment
from the adverse impacts of oil pollution, and especially
of a large scale.
• Oil pollution incidents of the nature anticipated by the
Emergency Protocol may be rare, but they cause serious
damage to entire ecosystems, often not discriminating
any particular species.
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B. Regional Legal and Institutional
Frameworks for EA contd
• Thus the main beneficiary of the Emergency
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Protocol, even not explicitly stated, are the
ecosystems, habitats and biological species of
the entire WIO Region.
However, the proposed revisions to the
Emergency Protocol could include explicit
provisions to deepen the ecosystem based
approach to the management of coastal and
marine resources and activities in the Region,
apart from the existing provisions on awareness
and empowerment, and institutional provisions.
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C. Other Regional and sub regional
Legal and Institutional Frameworks
• Under this category, mention may be made of region
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wide projects, such as for the large marine ecosystems
(for example Agulhas-Somali Current Large Marine
Ecosystem (ASCLME); South West Indian Ocean
Fisheries Commission (SWIOFC); and Western Indian
Ocean Land Based Activities Project (WIO Lab). Others
are sub regional initiatives like Indian Ocean Commission
(IOC); Small Islands Developing States (SIDS), etc.
Add to these, international civil society organizations
such as WWF, IUCN, WIOMSA, etc
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D. Conclusions
• The above outlines and discussions confirm the
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existence of a regional legal and institutional framework
for the ecosystem approach to the management of
marine and coastal resources. It has both strengths and
weaknesses.
A current opportunity exists in the Region to align the
legal and institutional framework under the Nairobi
convention to a more ecosystem friendly form. In the
course of the ongoing revision, the Nairobi convention
and its Protocols, particularly SPAW, as well as the
development of the LBSA Protocol, should embrace the
ecosystem approach.
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