Marine protected areas

on the high seas?

Marine protected areas
on the high seas?
An introductory guide to the legal issues
surrounding the establishment of marine
protected areas on the high seas

Christoph Schwarte
Linda Siegele

FIELD Acknowledgement
3 Endsleigh Street
London The production of this booklet would not
WC1H 0DD have been possible without the hard work
United Kingdom of the following former FIELD interns:
Alastair Cameron, Kuan-Fei Hsieh, Luiz
Tel: +44 (0) 20 7388 2117
Gustavo Bezerra, Sara De Sonatis. We
Fax: +44 (0) 20 7388 2826
would like to thank Nick Turner for the
Email: [email protected] design and layout and IIED and the
FIELD is associated with IIED Christensen Fund for funding the project.
www.field.org.uk

January 2008
Table of contents
I. Introduction 3
II. Background 4
III. Marine Protected Areas 6
IV. Public International Law 8
V. High Seas 10
VI. Global International Treaties 13
1. United Nations Convention on the Law of the Sea 13
3. Convention on Biological Diversity 14
4. International Convention for the Regulation of Whaling 14
5. Convention on International Trade in Endangered Species of Wild Fauna and Flora 15
6. The Convention on the Conservation of Migratory Species of Wild Animals 15
7. Food and Agriculture Organisation Compliance Agreement 16
8. UNESCO Conventions 16
9. Instruments of the International Maritime Organisation 17
10. Regulations of the International Seabed Authority 18
VII. Regional Treaties 19
1. Convention for the Protection of the Marine Environment of the North-East Atlantic 19
2. Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean 20
3. Antarctic Treaty 20
4. Regional Marine Living Resources Management Agreements 21
5. Regional CMS Agreements 22
VIII. Soft Law 23
1. Declaration of the UN Conference on Environment and Development  23
2. Agenda 21 23
3. Plan of Implementation of the World Summit on Sustainable Development 24
4. Earth Charter 24
5. IMO’s Particularly Sensitive Sea Areas 24
6. Code of Conduct for Responsible Fisheries 25
7. UN General Assembly Resolutions on Fishing 25
IX. Establishment of Marine Protected Areas 26
1. International Treaty Law 28
2. Customary Law 29
3. Next steps 31
X. Ongoing Policy Processes 33
1. Convention on Biological Diversity - Conference of the Parties 33
2. Meeting of States Parties to UNCLOS 33
3. UN Informal Consultative Process on Oceans and the Law of the Sea 34
4. Informal Consultations of Parties to the UN Fish Stocks Agreement 34
5. Meetings of the International Seabed Authority 34
6. Conference of the Parties to CITES 35
7. Conference of the Parties to CMS 35
8. International Whaling Commission 35
Annex 1 – Regional agreements 36
Annex 2 – Overview of high seas stakeholders 38
Further reading 39
 Summary
The oceans cover more than 70 per cent of the Earth’s surface and hold approximately
The oceans 90 per cent of the planet’s living biomass. Ocean ecosystems support all life on this
planet. They provide oxygen and food, manage vast amounts of human pollutants, buffer
the weather and regulate global temperature. Most parts of the oceans are unexplored
and deep seabed environments are considered the largest reservoir of biodiversity on
the planet. Despite the oceans’ great natural capacity for self-purification, the health,
productivity and biodiversity of the marine environment is severely threatened by
human activities.

Until recently environmental protection in the seas has focused primarily on particular
Marine species. Unlike on land, safeguarding ecosystems has been rather unusual. At present
environment less than one per cent of the world’s oceans is subject to a particular conservation regime
compared to twelve per cent of the earth’s land surface. The vast majority of marine
protection protected areas (MPAs) is located along the coasts, whilst the more distant offshore
areas remain virtually unprotected.

The designation of areas where human activities are restricted is a vital tool for
Marine protected protecting and conserving the ocean’s biodiversity. MPAs can enhance the protection of
areas vulnerable habitats and have the potential to allow damaged ecosystems to recover and
restore their functioning. They are a particularly important conservation tool for areas
on the high seas and in deep water beyond national jurisdiction.

So little is known about the specific features and functions of high seas ecosystems;
therefore, a precautionary approach toward conserving them must be taken to safeguard
against irreversible biodiversity loss. The high seas represent nearly 65 per cent of
our oceans’ surface. Marine protected areas can provide an effective mechanism for
protecting not only what we now know but what we have yet to discover.

The need for the protection and conservation of biodiversity on the high seas has been
Existing law recognised by the international community and is expressed in many international legal
and policy instruments. This guide provides an overview of the relevant provisions in
international and regional treaties and corresponding ‘soft’ law. It demonstrates that
on paper there is significant support for the concept of high seas MPAs. However, at
present there is no global legal framework which defines international responsibilities
and mechanisms in the identification, creation and protection of MPAs beyond national
jurisdiction.

This opens up a wide space for interpreting the existing rights and obligations of
State obligations States under international law. It raises questions with regard to authority, the scope
of permissible regimes, compliance and enforcement issues. The guide addresses these
questions with a view to developing arguments in favour of better environmental
protection.

High seas It shows how the juxtaposition of international treaty obligations on environmental
protection and the variety of rules on other ocean uses results in uncertainties. Under
freedom versus present treaty law the establishment of MPAs beyond national jurisdiction needs to take
environmental into account legitimate high seas uses. Depending on the geographical location and the
protection activities regulated this could result in a complex network of legal relationships.


 There is scope for elaborating environmental protection vis-à-vis traditional high seas
freedoms through contractual arrangements, but this serves to highlight a fundamental
challenge. Any contractual or treaty based regime can only confer rights and obligations
to States which are willing Parties to the regime. The rights and obligations of non-
Parties remain unaffected. Even where all States with a particular interest in the high
seas area were to agree on a regulatory regime, they would not create binding obligations
for external Parties. In these circumstances enforcement and compliance remain a
significant dilemma.

International law Under customary international law the different lawful uses of the high seas such as
navigation, fishing and the conservation of natural resources must be balanced not
only against one another, but also against the interests of the international community.
In practice, stronger States are often able to insist upon the acceptance of their own
uses of the high seas, notwithstanding that such uses may not strike the right balance
in the views of States with less influence. There appears to be sufficient evidence in
international legal and policy instruments to conclude that the balance is shifting
towards environmental protection. The scope and permanency of this shift will be
determined by the practice of States in the years to come.

The legal issues being considered in this guide are complex, often politicised and subject
to more than one interpretation. They have been addressed in various international
fora including the UN General Assembly and the Conference of the Parties to the
Convention on Biological Diversity. Although the international community in general
agrees that urgent steps are needed to protect the marine environment on the high seas,
the creation of MPAs in locations beyond national jurisdiction is proving uniquely
challenging - due in part to unresolved legal questions.

Government negotiators, non-governmental organisation (NGO) representatives and

Why this guide? other policymakers involved in environmental protection efforts at the international
level, come from a diverse set of backgrounds with different skills and experiences.
However, to be able to argue convincingly for an equitable and sustainable approach to
natural resource management, a good understanding of the associated legal context and
processes is important.

The aim of this guide is to facilitate a better understanding of the legal context, relevant
international processes, existing approaches and possible solutions to establishing MPAs
beyond national jurisdiction. It is not meant to provide authoritative legal advice, but
instead to provide an overview of a wide range of issues. Bearing in mind the potentially
diverse readership, this guide focuses on the fundamental connexions between legal
instruments and institutions, leaving to one side the more complex exceptions and
special cases. Every attempt has been made to present issues in objective, accessible and
non legalistic prose.


 I. Introduction
Creating marine The establishment of designated areas in the ocean that restrict human activities is
one of the most viable solutions to successful protection of the marine environment.
protected areas To end destructive practices on the seas and reverse the loss of biodiversity, the World
Summit on Sustainable Development in 2002 called for the creation of a global network
of marine protected areas. This guide aims to assist international policymakers and
other stakeholders in accomplishing this task. It focuses specifically on the legal issues
surrounding the conservation and sustainable use of marine biodiversity in areas beyond
national jurisdiction.

Legal uncertainty The legal issues being considered in this guide are complex, often politicised and subject
to more than one interpretation. They have been addressed in various international
fora including the UN General Assembly and the Conference of the Parties to the
Convention on Biological Diversity.

Government negotiators, non-governmental organisation (NGO) representatives and

Making the other policymakers involved in environmental protection efforts at the international
argument level come from a diverse set of backgrounds with different skills and experiences.
However, to be able to argue convincingly for an equitable and sustainable approach to
natural resource management, a good understanding of the associated legal context and
processes is important.

This introductory guide has been written by the Foundation for International
FIELD Environmental Law and Development (FIELD). FIELD aims to contribute to a
fair, effective and accessible system of international law that protects the global
environment and promotes sustainable development. FIELD is a UK based charity
staffed by international environmental lawyers from around the world with professional
experience in government, international organisations, environmental campaigning,
corporate legal practice and academia. FIELD broadens access to environmental justice
through research, capacity building, advice and assistance. The organisation builds
partnerships with communities and governments in the developing countries that are
most susceptible to the impacts of environmental degradation, but are often the least
equipped to participate in shaping solutions through international law and policy.


 II. Background
The oceans cover more than 70 per cent of the Earth’s surface. With an average depth
The importance of of almost 4,000 meters, it is estimated that more than 90 per cent of the planet’s living
the oceans biomass is found there. Ocean ecosystems support all life on this planet. In addition
they manage vast amounts of human pollutants, buffer the weather and regulate global
temperature. A vast portion of the world’s oceans is unexplored, including the biology
of the deep seafloor. Deep seabed environments are considered the largest reservoir of
biodiversity on the planet and scientists believe that they may hold the knowledge to
tackle incurable disease and develop new foods for future generations.

Despite the oceans’ great natural capacity for self-purification, the health, productivity
The state of the and biodiversity of the marine environment is severely threatened by human activities.
oceans The level of harmful substances entering the seas has multiplied over the last decades.
Plastic and synthetic materials are the most common types of marine debris and many
animals have been injured or have died after being entangled in or ingesting these
materials. Marine creatures increasingly show signs of contamination and damage from
pollution. Fishing, shipping and other uses of the sea have caused further damage and it
is feared that many species will be lost before they have even been discovered.

Fishing Fishing activities are the most pressing threat to open ocean and deep seabed
biodiversity. Harvesting the living resources of the sea has been transformed into a
highly industrialized business reaching even the remotest areas. Overfishing and the
unfettered use of destructive fishing practices have reduced many fish stocks well below
sustainable levels. Pelagic longlines, widely used to catch tuna and billfish, also kill
hundreds of thousands of seabirds, turtles and cetaceans. In a quest to catch sparser and
more far flung fish stocks, many fishing fleets have resorted to ‘bottom trawling’, a fishing
method where heavily weighted nets are towed along the seafloor catching everything in
their path and scraping off the coral cover of seamounts and other deep sea structures.

Shipping also has negative impacts on marine wildlife and habitats through noise,
Other threats accidental spills of oil or the deliberate, operational discharge of wastes, chemical
to the marine residues and ballast water as well as the use of anti-fouling paints. The use of powerful
environment sonar systems in military operations and scientific research, airguns for seismic surveys
and drilling for mineral, gas and oil exploration are thought to cause hearing loss and
disrupt feeding, communication, mating and migration patterns in whales, dolphins and
other ocean-going species.

The laying of cables and pipelines and large-scale scientific research can also result in
significant disturbances of sensitive ecosystems. Oil and gas development can already
take place below a depth of 3,000m and new technologies which may facilitate seabed
mining, the exploitation of hydrocarbons or the storage of greenhouse gases in the ocean
floor may soon be available. Finally, scientists are only just beginning to understand
the impact that climate change will have on ocean ecosystems, including warming and
acidification which will affect the growth of marine phytoplankton and lead to coral
bleaching, among other things.

A recent study found that unless some of these trends are reversed and large sea


 conservation areas unimpaired by human activities are soon established, the world’s fish
The future? stocks will be totally eradicated in forty years. The former Executive Director of the
United Nations Environment Programme, Klaus Töpfer, predicted that

“. . . our grandchildren will have to learn about turtles, dugongs

and coral reefs at the knees of a history teacher, and we will
have the tough job of explaining what a fish is.”


 III. Marine Protected Areas
The term ‘Marine Protected Area’ (MPA) is used to describe a wide range of marine areas
Marine protected where the environment enjoys a higher degree of protection than in the surrounding
areas waters. The types and scope of restrictions associated with an MPA differ widely. They
can range from limiting a particular activity or the protection of an individual species
to a conservation regime which essentially bans all human activity. The term includes
zones which may otherwise be referred to as Specially Protected Areas, Marine Reserves,
Marine Parks or No Take Zones.

The International Union for Conservation and Nature (IUCN) defines an MPA as

“Any area of intertidal or subtidal terrain, together with its

overlying water and associated flora, fauna, historical or cultural
features, which has been reserved by law or other effective
means to protect part or all of the enclosed environment.”

The establishment of MPAs is a vital tool for protecting and conserving the oceans’
A conservation biodiversity. MPAs can enhance the protection of rare or vulnerable habitats and
tool species, and historical and cultural sites. Designated areas where extractive uses and
other significant human pressures are removed have also shown the ability to recover
from damage. Ecologically coherent networks of MPAs are crucial for sustaining mobile
seabirds, sea turtles and fish stocks. Typical restrictions in MPAs relate to fishing and
the use of certain kinds of fishing equipment, oil and gas extraction, development and
construction, the use of sonar and even tourist access.

Until recently marine environmental protection has focused primarily on the

Species conservation of particular species. The notion of protecting entire ecosystems has taken
conservation longer to take hold than it has on dry land. At present approximately 4,600 MPAs cover
approximately 2.2 million square kilometres or less than one per cent of the world’s
oceans. In comparison nearly 12 per cent of the earth’s land surface is subject to different
nature conservation regimes. The vast majority of MPAs are located along the coasts
whilst the more distant offshore areas remain virtually unprotected.

Ecosystem Because individual maritime species depend on complex relationships with the habitats
in which they live and the other species living in them, the protection of marine
approach ecosystems is crucial for the functioning of the oceans. Marine protection efforts have
increasingly focused on this ecosystem approach. This universal approach is particularly
relevant for high seas and in deep water areas beyond national jurisdiction, because very
little is known about the specific features and functioning of these ecosystems. In the
face of this uncertainty, it would seem sensible to use precaution to safeguard against
potentially irreversible biodiversity loss. Networks of MPAs provide a mechanism for
protecting not just what is known at present to be important, but what may turn out to
be important in the future.

Nevertheless, the sea cannot be boxed in and even a comprehensive network of MPAs
will still be affected by activities in adjacent areas. The success of an area-based approach
to conservation will also depend on the implementation of wider measures to control
the uses of the sea.

A database on protected areas is available on http://www.unep-wcmc.org/wdpa


Case study – Oculina Bank Reserve

The Oculina Bank Reserve off the east coast of Florida is characterized by the delicate
branch-like Oculina coral which provides ideal spawning sites for numerous species.
By the early 1990s much of the habitat was destroyed and fish stocks were severely
depleted as a result of hook-and-line fishing and bottom trawling. In 1994 the Oculina
Experimental Closed Area was established prohibiting all bottom fishing. The regime
was gradually expanded through anchoring restrictions, a ban on fishing for certain
species and the inclusion of surrounding waters.

Despite these restrictions, illegal shrimp trawling continued to cause major destruction
and monitoring activities in this isolated area remains a constant challenge for the
authorities. A self regulation program, implemented in 2003 in collaboration with
the rock shrimp industry, requires any vessel fishing near the MPA to use an approved
vessel monitoring system. This has greatly improved enforcement. Since 1995 scientists
have also been trying to re-establish the Oculina corals by deploying different types of
concrete reef balls throughout the reserve. Several fish species have begun to colonise the
area and there is increasing hope that the Oculina Bank Reserve may recover, at
least partially.


 IV. Public International Law
Public international law is traditionally described as a system of rules and principles
Public that govern the relations between States and other subjects of international law such
international law as the United Nations or the European Communities. It is primarily created through
States and covers almost all areas of inter-state activities such as trade, diplomacy,
postal services, transboundary emissions, the use of outer space and, of course, war.
Public international law governs issues relating to the global environment, control and
jurisdiction over territory, human rights and international crime. Although international
law is often concerned with the interests of groups and individuals it usually confers
rights and obligations to States. Only rarely can people directly claim rights under
international law.

The primary sources of international law are treaties and customary law. Treaties are
Treaties and agreements between States (and other entities under international law) and only bind
customary law the participating Parties. These treaties are often known as conventions, pacts, protocols
or covenants. The Charter of the United Nations is the most important international
treaty and is often referred to as the constitution of the international community.
Otherwise, there is no hierarchy between different international treaties. Conflicts
amongst different treaty regimes may be addressed in the treaties themselves but can be
subject to often contentious questions of application and interpretation.

A number of international treaties have established entire regulatory regimes

Regulatory amongst their State Parties. Often institutions set up under treaty regimes monitor
regimes implementation, take further action, and facilitate the development of new legal
instruments where, for example, priorities change or scientific knowledge evolves. Some
treaties contain compliance and enforcement mechanisms as well as dispute settlement
procedures and an increasing number of treaties allow a variety of stakeholders to
put forth political, economic, and legal issues for consideration in decision making
processes.

Customary international law is derived from the consistent practice of States

Customary law accompanied by opinio juris - the conviction of States that the consistent practice
is required by a legal obligation. In addition to direct evidence of State behaviour,
judgments of international courts as well as the results of academic investigation have
traditionally been looked to as persuasive sources of international custom.

Customary and treaty law are complementary. Treaties regularly contain codifications
of customary law while subsequent State practice can develop the provision of a treaty
further. Treaties and the practice of States may also lead to the creation of new rules of
customary law. What constitutes currently applicable international law is however often
a question of interpretation dependant on political factors operating within the sphere
of international relations.

There are other (secondary) sources of binding international law, for example, court
Secondary judgments or decisions of treaty bodies whose authority has been accepted by a State
sources through an international treaty process. Also important for the determination and
development of international law are international policy documents such as the 1992
Declaration of the UN Conference on Environment and Development drafted at the
world summit in Rio de Janeiro (Rio Declaration). They may be described as quasi-legal
instruments (or soft law) because they do not have binding force but can accelerate the
formation of customary law as well as provide evidence of opinio juris.


Compliance and International law has not established a general compliance and enforcement mechanism.
Instead, a State’s inclination to uphold norms rather comes from the pressure that States
enforcement put upon one another to behave consistently and to honour their obligations. Although
there are various means of dispute settlement and enforcement within existing treaty
regimes, it is usually through diplomacy driven by the desire of States to preserve their
international reputations that violations of international law are addressed.


 V. High Seas
The legal concept of the high seas began to be developed in the 17th century. In 1608
History of the high the Dutch jurist, philosopher, poet and playwright Hugo Grotius published his book
seas Mare Liberum (Freedom of the Seas). The book justified the Netherlands’ trading
activities in the Indian Ocean and formulated the principle that beyond a limited
area under national jurisdiction the use of the seas was free for all nations. Fish were
considered a common property resource with free and open access.

By the first half of the 19th century the notion of the high seas as an area exempt
from claims to national sovereignty by any State had, with some exceptions, become
generally accepted. From that principle it followed that no State had the right to prevent
ships belonging to other States from using the high seas for any lawful purpose. What
constitutes a lawful purpose is nowadays essentially determined by the United Nations
Convention on the Law of the Sea (UNCLOS).

UNCLOS is often described as the constitution for the world’s oceans. It lays down a
United Nations comprehensive set of rules governing all aspects of the use of the sea and its resources.
Convention on the This includes rights of navigation, environmental controls, marine scientific research,
Law of the Sea economic and commercial activities, transfer of technology and the settlement of
disputes. The Convention also sets out the international consensus on the scope and
regime for different jurisdictional maritime zones.

Maritime zones Under UNCLOS, Coastal States exercise sovereignty over a belt of water adjacent to
their territory not exceeding 12 nautical miles. Foreign vessels are allowed ‘innocent
passage’ through those waters. Coastal States have sovereign rights with respect
to natural resources, certain economic activities, marine scientific research and
environmental protection on their continental shelf and within a 200 nautical mile
exclusive economic zone (EEZ). All other States enjoy the freedom of navigation and
overflight and remain entitled to lay submarine cables and pipelines in the Coastal
State’s EEZ. In a zone within the EEZ and contiguous to the territorial sea the Coastal
State has additional rights to enforce its customs, fiscal, immigration, and sanitary laws
and regulations.

Low water 200 nautical

baseline 12nm 24nm miles (nm)
Graphic courtesy of Defying Ocean’s End (2004)

Internal Territorial Sea High Seas

Waters (0–12nm)
(landward
of low-water
mark)

Contiguous Zone
(0–24nm)

Exclusive Economic Zone (EEZ)

(12–200nm from baseline)

Seabed Legal
Continental
Shelf
to outer Seabed
edge of and subsoil
Subsoil Beneath Continental Shelf continental beyond
margin national
jurisdiction

Figure 1 Maritime Zones under United Nations Convention on the Law of the Sea (UNCLOS) of 1982 (based on Gorina-Ysern 2004).

10
 The water column beyond an EEZ (or the territorial sea where no State claims an EEZ),
including the superjacent airspace, is the high sea - representing approximately 64 per
cent of the ocean’s surface. On the high seas all States, under conditions laid down by
the Convention and other rules of international law, enjoy the principal freedoms of
navigation, overflight, the laying of submarine cables and pipelines, the construction of
artificial islands and other installations, fishing and scientific research.

Ships sailing the high seas are generally under the jurisdiction of the State whose flag
Vessels on the they fly. They are required to comply with the laws and safety standards which the Flag
high seas State enforces. Many fishing nations require fishing vessels to obtain an authorization,
license or permit before engaging in high seas fishing. Some States impose gear
restrictions, prohibit fishing techniques or do not allow vessels flying their flags to fish
in vulnerable high seas areas. To sell fish on their domestic markets some States require
high seas vessels to have on-board observers, be equipped with monitoring devices and
submit catch reports.

The principle of Flag State jurisdiction is subject to some exceptions. In the case of
piracy, any State, by ship or plane in government service, may take action against a vessel
and its crew. Under UNCLOS States may also enjoy additional rights with regard to
preventing and punishing the transport of slaves, supressing unauthorized broadcasting,
pursuing a foreign vessel for violations of domestic law, boarding ships without
nationality and addressing major pollution incidents. Warships however have complete
immunity from the jurisdiction of any State other than the Flag State.

In addition, States can allow other States to stop, board, search or arrest its vessels
through international agreements or on an ad hoc basis. States have, for example, entered
into international treaty arrangements to facilitate the interception of drug trafficking,
terrorism, illegal fishing and other unlawful acts on the high seas. In addition, measures
against foreign ships on the high seas have also been justified on the grounds of self
defence or necessity.

11
Case Study – Barents Sea

Since 1975 Norway and Russia have jointly managed the main fish stocks of the
Barents Sea, part of the Arctic Ocean north of Russia and Norway. In order to
determine catch quotas and other management measures they established the Joint
Norwegian Russian Fisheries Commission. The management regime includes two
areas commonly referred to as the ‘Barents Sea Loophole’ and the ‘Grey Zone’. Both
countries claim large parts of the sea located in the ‘Grey Zone’ as part of their EEZ.
For conservation and management purposes however they have agreed on a system
of parallel jurisdiction that covers most of the disputed waters. Under the Grey Zone
Agreement enforcement measures such as the inspection or arrest of vessels are to be
exercised by the State that has issued the license to operate in the area.

The Loophole is a piece of water beyond the limits of national jurisdiction but entirely
surrounded by the EEZs of Norway and Russia. In 1999 the two countries agreed with
Iceland, the other main fishing nation in that region, on a management regime for the
area. This included the allocation of catch quotas for cod and mutual access to national
waters. Other provisions oblige the Parties to discourage their nationals from operating
fishing vessels under foreign flags and to prohibit landing of catches taken without a
quota. However fishing by vessels flying the flags of other States continues. In 2005
Greenpeace prevented a French-owned vessel, at that time flagged in Togo, from
unregulated bottom trawling. In 2006 Norwegian patrol boats arrested two Spanish
vessels for illegal fishing. The Spanish authorities however claimed that the vessels were
fishing in international waters where Norway has no jurisdiction.

12
 VI. Global International Treaties
There are no international agreements of potentially worldwide application on the
identification, designation and establishment of marine protected areas on the high seas.
Nor is there an agreed international framework addressing threats posed by different
activities on the seas to a designated area. There are however a considerable number
of global treaties which directly or indirectly deal with the protection of the ocean
environment. This part of the guide provides an overview of the existing treaties with
significant - though never universal – global membership. Updated lists of Parties to
individual treaties are generally available on treaty websites (links to many are provided
in this guide) or through the United Nations treaty series.

1. United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea (UNCLOS) provides a
comprehensive legal regime for the world’s oceans. It divides marine space into different
zones and sets out the rights and responsibilities of States within these zones (see above).
UNCLOS further contains a general obligation for States to protect and preserve the
marine environment within and beyond national jurisdiction. Individually or jointly
States must take the necessary measures to prevent, reduce and control pollution from
any source, including vessels, dumping, deep sea exploitation or land-based activities.

States are also required to cooperate with each other in the conservation and
Marine living management of the living resources of the high seas. States whose nationals fish for the
resources same living resources or in the same area are required to negotiate adequate conservation
measures. To this end they must cooperate to establish sub-regional or regional fisheries
organisations. Conservation measures must be designed on the basis of the best scientific
evidence available to maintain populations at levels which can produce the maximum
sustainable yield and avoid threats to the species associated with or dependent upon
harvested species. UNCLOS contemplates that further global and regional rules will be
developed both for marine environmental protection and high seas living resources.

Common heritage UNCLOS declares the seabed, ocean floor and its subsoil beyond the limits of
national jurisdiction as the common heritage of mankind. All resource exploration
of mankind and exploitation activities in this ‘area’ are to be carried out for the benefit of mankind
as a whole taking into particular consideration the interests of developing states. The
International Seabed Authority was established (ISA) to organize and control such
activities and share the resulting benefits.

2. Fish Stocks Agreement

The United Nations 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 (Fish Stocks Agreement) is an implementing agreement of UNCLOS. It is to be
interpreted and applied in a manner consistent with UNCLOS.

In areas beyond national jurisdiction fisheries management is to be based on the

Fisheries precautionary approach, i.e. the absence of adequate scientific information must not
management be used as a reason for postponing or failing to take conservation measures. Measures
measures  UN treaty series: http://untreaty.un.org/English/treaty.asp
 http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm
 http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm
13
 referred to, include selective fishing gear and techniques, closed areas and seasons as
well as management measures for species belonging to the same ecosystem. The Fish
Stocks Agreement also requires States which are not Parties to a fisheries management
agreement to cooperate in the conservation of the relevant stock. Otherwise, they may
not authorize vessels flying their flags to fish in this area. A State whose vessels fish on
the high seas, must also take the necessary measures to ensure that these vessels respect
regional conservation regimes. The State may only authorize the use of vessels for fishing
where it is able to exercise its responsibilities. In high seas areas covered by a fisheries
management organisation, a Member State of the organisation can inspect the vessels of
any other Party to the Fish Stocks Agreement.

3. Convention on Biological Diversity

The Convention on Biological Diversity (CBD) is designed to ensure the conservation

of biological diversity, the sustainable use of its components and the fair and equitable
sharing of the benefits arising out of its utilization. The CBD covers all ecosystems,
species and genetic resources. It provides that where there is a threat of significant
reduction or loss of biological diversity, lack of full scientific certainty should not be
used as a reason for postponing measures to avoid or minimize such a threat.

The CBD distinguishes between in-situ conservation, namely the conservation and
In-situ sustainable use of biodiversity in its natural environment, and ex-situ conservation.
conservation It expressly mandates the establishment of protected areas and recognizes that the
conservation of biological diversity is a common concern of humankind and an integral
part of the development process.

Although the CBD’s provisions do not apply to areas beyond national jurisdiction,
Application per se, they do apply to countries individually in regard to national activities that may
beyond national adversely impact biodiversity wherever it is located. In areas beyond national jurisdiction
jurisdiction the CBD applies to processes and activities carried out under a Party’s jurisdiction
or control. Thus CBD Parties are, for example, responsible for monitoring activities
under their control where those activities have significant adverse impacts on high
seas ecosystems. The CBD also underlines the need for Parties to cooperate for the
conservation and sustainable use of biodiversity in areas beyond national jurisdiction.
With respect to the marine environment the CBD is to be implemented consistently
with the rights and obligations of States under the law of the sea.

To take further steps deemed necessary for its implementation, the CBD established a
Global network of Conference of the Parties (COP). The second COP in Jakarta, Indonesia identified the
protected areas conservation and sustainable use of marine biodiversity as an early priority for action
and in 1995 adopted the ‘Jakarta Mandate on Marine and Coastal Biological Diversity’.
The seventh COP adopted the target to develop a global network of marine and coastal
protected areas by the year 2012 and established an Ad Hoc Open-ended Working
Group on Protected Areas whose mandate includes the exploration of options for co-
operation for the establishment of MPAs beyond the limits of national jurisdiction.

4. International Convention for the Regulation of Whaling

Whaling The International Convention for the Regulation of Whaling was agreed in 1946 to
ensure the proper and effective conservation of whale stocks. It applies to factory ships,
land stations and whale catches under the jurisdiction of the Parties to the Convention

 http://www.biodiv.org/default.shtml
 http://www.iwcoffice.org/commission/convention.htm
14
 and to all waters in which whaling is carried out. It established an International
Whaling Commission, composed of member States to organise scientific studies and
investigations and to collect, analyse and disseminate data. The Commission’s main task
is to review and revise as necessary the measures laid down in the Convention. It can fix
the limits of open and closed waters, designate sanctuary areas, prescribe seasons, catch
and size limits for each species of whale as well as prohibit types and methods of fishing.

5. Convention on International Trade in Endangered Species of

Wild Fauna and Flora

The Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) is an international treaty which aims to ensure that the international trade
in specimens of wild animals and plants does not threaten their survival. The import
and export of species covered by CITES has to be approved by the national authorities
of the Member States in accordance with the rules and regulations laid down by the
Convention.

Species are listed in three Appendices resulting in different levels and types of
Species taken on protection. Among the marine listings are many species of cetaceans, marine turtles,
the high seas seahorses, corals and commercial marine fishing species such as basking sharks. The
‘introduction from the sea’ of any species included in Appendix I or II requires the prior
grant of a certificate from the Management Authority of the State of Introduction.
Introduction from the sea is defined as the transportation of a species into a State taken
in the marine environment outside national jurisdiction. This restriction does not apply
to species included in Appendix II when they are taken by ships registered in a State,
which is also Party to another treaty affording protection to that species and preceding
CITES, such as the International Convention for the Regulation of Whaling.

6. The Convention on the Conservation of Migratory Species of

Wild Animals

Protection through The Convention on the Conservation of Migratory Species of Wild Animals (CMS
or Bonn Convention) aims to protect terrestrial, marine and avian migratory species
their range throughout their range. Range is defined as all the areas of land or water that a migratory
species inhabits, stays in temporarily, crosses or overflies at any time on its normal
migration route. For species in danger of extinction, listed in Appendix I, the Range
States must work toward taking a variety of conservation and restoration measures.
With regard to migratory species in unfavourable conditions, included in Appendix II,
Range States are encouraged to enter into international agreements. The CMS provides
guidelines for such agreements and serves as an umbrella mechanism for their review.
Several agreements on marine species have been concluded, some of them addressing the
establishment of protected areas as a conservation measure.

Range States include States whose vessels are engaged in fishing for protected species
Range States on the high seas. The CMS requires these States to prohibit the taking of Appendix
I species. To the extent that activities undertaken within national jurisdiction may
endanger the species beyond national jurisdiction, the Range State should also control
these effects. Range States should conserve and restore important habitats and prevent
and remove obstacles to migration. At its fifth meeting the Conference of the Parties also
decided that Parties should designate protected areas, in close co-operation with other

 http://www.cites.org/eng/disc/text.shtml
 http://www.cms.int/documents/index.htm
 See Section VII.5, below.
15
 Range States so that a network of critical sites is established throughout the migration
route of Appendix I species.

7. Food and Agriculture Organisation Compliance Agreement

The 1993 Agreement to Promote Compliance with International Conservation and

Control of fishing Management Measures by Fishing Vessels on the High Seas 1993 (FAO Compliance
vessels Agreement)10 applies to all fishing vessels that are used or intended for fishing on the
high seas. It sets out Flag State responsibilities to ensure that a fishing vessel flying its
flag and engaged in high seas fishing complies with international conservation and
management measures. The Flag State may only authorise its vessels to fish on the high
seas if it can effectively exercise its responsibilities under the Agreement. Restrictions
are placed on issuing an authorization for high-seas fishing to any vessel that has
undermined international conservation and management measures. The Agreement
also provides for arrangements whereby Port States may take investigatory measures to
establish whether a fishing vessel sitting voluntarily in one of its ports has violated the
Agreement’s provisions.

Each Flag State must maintain a record of vessels entitled to fly its flag and authorized
Flag state by it to fish on the high seas. This information must be made available to the Food
obligations and Agricultural Organisation (FAO) which then circulates it to all Parties. The
Agreement also requires State Parties to cooperate in exchanging information on fishing
vessel activities in order to assist Flag States to identify any of their vessels engaged in
activities that undermine international conservation and management measures. The
FAO has established a High Seas Vessel Authorization Record in order to develop a
comprehensive, centralized database on vessels authorized to fish on the high seas.

8. UNESCO Conventions

World heritage The 1972 UNESCO Convention on the World Cultural Heritage and Natural
Heritage (WH Convention)11 encourages States to identify outstanding sites for the
sites protection, preservation and transmission to future generations of cultural and natural
heritage around the world. On the basis of a proposal submitted by Parties to the WH
Convention, the World Heritage Committee designates world heritage sites with
outstanding universal value for humanity. This includes maritime habitats such as the
Great Barrier Reef (Australia) or the Tubbataha Reef Marine Park (Philippines). The
application of the WH Convention is limited to sites within the territories of Parties to
the Convention.

In comparison to the WH Convention, the 2001 UNESCO Convention on the

Underwater Protection of the Underwater Cultural Heritage (UCH Convention)12 covers
cultural heritage underwater cultural heritage both within and beyond national jurisdiction. It has not
yet entered into force. The UCH Convention defines underwater cultural heritage as
all traces of human existence having a cultural, historical or archaeological character
which has been partially or totally under water for at least 100 years. Shipwrecks and
other historical or cultural objects can attract the settlement of species and protective
measures taken under the UCH Convention may have the added benefit of protecting
the associated biodiversity.

10 http://www.fao.org/DOCREP/MEETING/003/X3130m/X3130E00.HTM
11 http://whc.unesco.org/en/conventiontext
12 http://www.unesco.org/culture/laws/underwater/html_eng/convention.shtml
16
 Under the UCH Convention underwater cultural heritage objects are to be preserved
for the benefit of humanity as a whole. The preservation in situ of underwater cultural
heritage is considered the first option. When such objects are found on the seabed or
ocean floor beyond areas of national jurisdiction, notifications must go to the Director-
General of UNESCO and the Secretary-General of the International Seabed Authority.
The Director-General notifies Parties to the UNESCO Conventions. States with a
verifiable link to the heritage are to be consulted on how to ensure its protection.

9. Instruments of the International Maritime Organisation

International rules and regulations concerning maritime safety, the efficiency of

IMO navigation and the prevention and control of marine pollution from ships have been
developed under the auspices of the International Maritime Organisation (IMO). The
IMO provides machinery for cooperation among governments. Its rules and standards
are widely recognized as minimum standards applicable to all vessels both within and
beyond national jurisdiction. The IMO is considered the competent international body
to establish special protective measures in defined areas where shipping presents a risk.
To date it has negotiated more than forty conventions, as well as adopted non-binding
codes, recommendations and guidelines.13

This includes the International Convention for the Prevention of Pollution from Ships
Special Areas 1973 as modified by the Protocol of 1978 (MARPOL 1973/78).14 MARPOL 73/78
regulates vessel design, equipment, and operational discharges from all ships both within
and beyond national jurisdiction. It also provides for the designation of Special Areas
where more stringent discharge rules apply in respect of oil, noxious liquid substances,
and marine debris. Special Areas are defined as areas where, for technical reasons relating
to their oceanographical and ecological condition and to their sea traffic, the adoption
of special mandatory methods for the prevention of sea pollution is required.

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and

Dumping at sea Other Matter 1972 (London Convention)15 aims to control and prevent marine
pollution caused by the deliberate disposal of wastes or other matter at sea. It
differentiates between matter whose dumping is prohibited (listed in Annex 1) and
others which require a permit. Issuance of a permit requires consideration of various
factors including the characteristics of the proposed dumping site. Under the London
Convention, States with common interests in protecting the marine environment
in a given geographical area are to enter into regional agreements. Parties must also
co-operate in the development of procedures for the effective application of the
Convention on the high seas, including procedures for reporting dumping by vessels or
aircraft.

The London Convention was replaced by the 1996 Protocol, which entered into force
on 24 March 2006.16 The Protocol provides a more restrictive approach and prohibits all
waste dumping except for materials listed in Annex 1, such as dredged materials, sewage
sludge, fish processing wastes, oil and gas installations and organic materials of natural
origin. In implementing the Protocol Parties must also apply a precautionary approach
and take appropriate preventative measures when there is reason to believe that matter
introduced into the marine environment is likely to cause harm even when there is no
conclusive evidence to prove a causal relation between inputs and their effects.

13 For all instruments see: http://www.imo.org

14 http://www.imo.org/Conventions/mainframe.asp?topic_id=258&doc_id=678
15 http://www.londonconvention.org
16 http://www.imo.org/home.asp?topic_id=1488
17
Ballast water The IMO’s 2004 International Convention for the Control and Management of Ships’
Ballast Water and Sediments17 is not yet in force. Its objective is to prevent, minimize
and ultimately eliminate the transfer of harmful aquatic organisms and pathogens
resulting from ballast water exchange. It requires ships to conduct exchanges at least 200
nautical miles from the nearest land and in waters deeper than 200 metres, wherever
possible. If a Party or Parties determine that additional measures are necessary in certain
areas, they may require ships to meet a specified standard or requirement consistent with
international law. If such Party/ies intend the measure to apply to ships other than their
own in areas beyond national jurisdiction, IMO approval would be necessary.

10. Regulations of the International Seabed Authority

The International Seabed Authority (ISA) was established under UNCLOS to organise
The Area and control all activities on the seabed and the ocean floor beyond areas of national
jurisdiction (the Area). ISA has the responsibility of ensuring that effective measures
are taken in connection with mining and exploration activities, including effective
protection of the marine environment. To this end ISA must adopt appropriate
rules and regulations on the prevention, reduction and control of pollution and the
protection of natural resources, flora and fauna. These rules and regulations are binding
on all Parties to UNCLOS.

One set of regulations established by ISA are the Regulations for Prospecting and
Exploration in the Exploration for Polymetallic Nodules in the Area.18 Polymetallic nodules are non-living
Area porous, concretionary objects of various sizes and shapes containing valuable metals
such as nickel, manganese, copper and cobalt. They are found in thin discontinuous
superficial layers on the floor of the ocean, occurring at depths of 5,000 meters. Under
the Regulations any exploration and exploitation activities need to be approved by ISA.
Applicants must carry out an environmental impact assessment, monitor the effects of
their work and comply with all terms and decisions of ISA.

With the application for exploitation rights a Contractor is required to propose areas
Preservation to be set aside and used exclusively as impact reference zones and preservation reference
reference zones zones. The regulations define impact reference zones as areas which are representative of
the environmental characteristics of the Area to be used for assessing the effect of each
contractor’s activities in the Area on the marine environment. Preservation reference
zones are areas in which no mining may occur to ensure representative and stable
biota of the seabed in order to assess any changes in the flora and fauna of the marine
environment.

The ISA is also in the process of drafting regulations on prospecting and exploration for
polymetallic sulphides and cobalt-rich ferromanganese crusts in the Area.19 Of the draft’s
43 regulations, nine are concerned with the protection and preservation of the marine
environment. This includes the application of the precautionary approach as well as the
establishment of environmental baselines for monitoring and reporting.

17 http://www.imo.org/Conventions/mainframe.asp?topic_id=867
18 isa.org.jm/files/documents/EN/13sess/cnel/ISBA-13-C-wpl.pdf
19 isa.org.jm/files/documents/EN/13sess/LTC/ISBA-13LTC-wpl.pdf
18
 VII. Regional Treaties
There is a multitude of bilateral and multilateral treaties dealing with environmental
protection issues in different parts of the world. Examples include the Convention on
the Conservation of European Wildlife and Natural Habitats (Berne Convention)20 and
the African Convention on the Conservations of Nature and Natural Resources.21 In
general the content of these regional treaties is also covered by one or more of the global
treaties described above.

Because the review of all existing regional agreements with potential relevance to marine
environment protection is impractical, the following section focuses on those regional
agreements with a specific emphasis on area or ecosystem based approaches. Regional
seas conventions, fisheries or - more generally - marine living resources management
agreements and treaties for the protection of individual species are the types of treaties
we will be exploring in this section.

Most regions of the world now have binding framework conventions between countries
Managing sharing a common body of water. These framework conventions generally include the
common waters coordination and implementation of environmental management of the designated body
of water. A list of these framework conventions has been included in Annex 1. Many of
these agreements have been established under the auspices of the United Nations. The
conventions usually reflect the particular environmental challenges encountered by a
region and are often supplemented by protocols and annexes. They cover issues ranging
from chemical wastes and coastal development to the conservation of marine life and
ecosystems. Only a few of the legal instruments explicitly covers areas beyond national
jurisdiction. The most significant ones are presented in sections 1 to 3 below. Section
4 deals with management agreements for marine living resources and section 5 with
treaties designed to protect individual species.

1. Convention for the Protection of the Marine Environment of

the North-East Atlantic

The 1992 Convention for the Protection of the Marine Environment of the North-
East Atlantic replacing the Oslo and Paris Convention (OSPAR Convention)22 requires
Parties to take all possible steps to protect the maritime area of the North-East Atlantic
from pollution. The maritime area extends from the shores of its contracting Parties to a
substantial adjacent high seas area including the seabed. It stretches from the east coast
of Greenland to the continental North Sea coast, south to the Straits of Gibraltar and
northwards to the North Pole but does not include the Baltic or Mediterranean seas.

Annex V to the Convention calls on Parties to take the necessary measures to protect
Commission the maritime area against the adverse effects of human activities and to restore marine
and protection areas which have been adversely affected. The Commission established under the
OSPAR Convention has the duty to develop means, consistent with international law,
measures for instituting protective, conservation, restorative or precautionary measures related
to specific areas or sites or related to specific species or habitats. It also clarifies that no
programme or measure concerning a question relating to the management of fisheries
is to be adopted under this Annex. Where the Commission considers that such action
would be desirable, it is to draw that question to the attention of the competent fisheries
organisation or other relevant authority.
20 http://conventions.coe.int/Treaty/en/Treaties/Word/104.doc
21 http://tinyurl.com/ywfgqn - as revised in 2003.
22 http://www.ospar.org/eng/html/convention/welcome.html
19
Marine protected In 2003 the Parties to the OSPAR Convention recommended the development of
a network of MPAs by 2010. They also agreed on a strategy and guidelines for the
areas selection and management of sites. It is envisaged that Parties will identify potential
MPAs both within and outside their national jurisdiction. They are required to develop
a management plan for the areas and adopt the necessary measures to achieve them.
Where competence to adopt such measures lies with another authority or international
organisation (e.g. regional fisheries management organisations or the European Union)
Parties should seek to adopt those measures. A Party can request the Commission’s
assistance with this. The Commission may consider, in accordance with UNCLOS and
in consultation with the competent international organisations, how environmental
protection might be achieved in areas outside national jurisdiction and how appropriate
measures might be included in the OSPAR MPA network.

2. Convention for the Protection of the Marine Environment and

the Coastal Region of the Mediterranean

The 1976 Convention for the Protection of the Marine Environment and the
Coastal Region of the Mediterranean amended in 1995 (Barcelona Convention)
applies throughout the Mediterranean Sea.23 Parties to the Convention are to take
all appropriate measures to prevent, abate, combat and eliminate pollution of the
Mediterranean Sea and to protect and enhance the marine environment in this area. The
revised text as amended in 1995 has not yet entered into force.

Included within the Convention’s framework is the 1995 Protocol Concerning

Protected areas Specially Protected Areas and Biological Diversity in the Mediterranean.24 The Protocol
of Mediterranean provides for the establishment of a list of specially protected areas of Mediterranean
interest interest (SPAMI list). This may include sites which are of importance for conserving
the components of biological diversity, sites which contain ecosystems specific to the
Mediterranean or the habitats of endangered species. The Protocol further specifies the
procedures for the listing of SPAMIs. As regards areas located partly or wholly on the
high seas, the proposal must be made by two or more neighbouring Parties. The decision
to include an area is taken by consensus among the Parties.

If an area is included in the list, all Parties must comply with the measures applicable to
the SPAMI and neither authorise nor undertake any activity that might be contrary to
the objectives for which the SPAMI was established. Parties to the Protocol must adopt
measures consistent with international law, ensure that no one engages in any activity
contrary to its principles and purposes, and invite non-Member States to cooperate in its
implementation.

3. Antarctic Treaty

The 1959 Antarctic Treaty25 was initially signed by the twelve nations that had been
active in Antarctica, nine of which had made territorial claims or reserved the right
to do so. The Treaty, which applies to the area south of 60° South latitude provides
that Antarctica should be used exclusively for peaceful purposes. It prohibits nuclear
explosions and the disposal of radioactive waste, promotes international scientific
cooperation and protection of living resources and effectively freezes all territorial
claims. The Treaty now has 44 signatories. Twenty-seven of these are Consultative
Parties on the basis that they were original signatories or had conducted substantial

23 http://www.unep.ch/regionalseas/legal/conlist.htm
24 http://www.oceanlaw.net/texts/unepmap2.htm
25 http://www.antarctica.ac.uk/About_Antarctica/Treaty/treaty.html
20
 research in Antarctica.

Antarctic specially The 1991 Protocol on Environmental Protection to the Antarctic Treaty26 has five
annexes. Annex V provides for the designation of Antarctic Specially Protected Areas
protected areas to protect outstanding environmental, scientific, historic, aesthetic or wilderness values
and Antarctic Specially Managed Areas to assist in the planning and co-ordination of
activities, improve co-operation between Parties or minimise environmental impacts.
Marine areas can be included in either category but their establishment requires the
prior approval of the Commission on the Conservation of Antarctic Living Resources
(CCAMLR).

Any Party wishing to propose an area for designation as a special area must draw up
a management plan. Proposed management plans are to include a description of the
aims and objectives of the plan, the value for which special protection is required, the
envisaged management activities, a period of designation, and a description of the area
and its features. Zones must be identified within the area where activities are to be
prohibited, restricted or managed, and the proximity to other protected areas must be
identified.

4. Regional Marine Living Resources Management Agreements

Traditionally regional management agreements have been drawn up by States engaged

in fishing for the same species so that they may coordinate their activities in a specific
geographical area. In many cases a commission or other institutional framework has
been set up in order to decide on joint management measures such as the determination
and allocation of catch quotas. A list of the regional fisheries/resources management
agreements analysed for the purpose of this study has been included in Annex 1.

Regional fisheries management agreements may deal with the management of one
Use and or several species or cover all living marine resources within a region. Many of them
conservation cover areas of the high seas. The agreements generally contain a clause to the effect that
nothing in the agreements should be construed to affect a Party’s rights under the law
of the sea. More recently these agreements tend to emphasise the need for sustainable
use and conservation whereas earlier agreements focused on management and best
utilisation.

Regional fisheries management agreements generally state that conservation measures

for areas under national jurisdiction and for the high seas should be compatible.
Conservation measures, for example, include closed areas and seasons as well as
restrictions on gear and fishing techniques. Member States have to ensure that nationals
and vessels flying their flags comply with these measures. Few agreements however
provide for the protection and conservation of aquatic resources through a stringent
application of the ecosystem approach. In this respect, the 1980 Convention for the
Conservation of Antarctic Marine Living Resources (CCAMLR)27 arguably may provide
for the most advanced regime.

Convention for the CCAMLR applies to the marine living resources of the Antarctic marine ecosystem.
Its objective is defined as the conservation of Antarctic marine living resources and its
Conservation of Parties are obliged to refrain from any activities in the Antarctic Treaty area contrary to
Antarctic Marine this purpose. The Commission for CCAMLR was established by the Convention with
the mandate to identify and implement conservation measures. Conservation measures
Living Resources
26 http://www.antarctica.ac.uk/About_Antarctica/Treaty/protocol.html
27 http://www.oceanlaw.net/texts/ccamlr.htm
21
may include the designation of protected species, quantities of allowed catch and the
size, age or sex of species which may be harvested. The Commission may stipulate fishing
methods and gear as well as the closing or opening of seasons and areas, including special
areas for environmental protection and scientific study. In addition it can take other
conservation measures as necessary for the fulfilment of the Convention’s objectives
including measures related to components of the marine ecosystem other than the
harvested populations.

Conservation measures adopted by CCAMLR enter into force within 180 days
following notification of its members. Members can prevent measures from becoming
binding upon them and initiate a review. The enforcement of management measures
is generally the responsibility of individual Member States. The Commission aims to
encourage compliance with such measures through reporting requirements, publications
and the Standing Committee on Implementation and Compliance.

5. Regional CMS Agreements

Under the Convention on the Conservation of Migratory Species of Wild Animals

(CMS)28 several agreements on the protection of migrating marine species have been
concluded. These are the Agreement on the Conservation of Small Cetaceans of
the Baltic and North Seas (ASCOBANS), the Agreement on the Conservation of
Albatrosses and Petrels (ACAP), the Agreement on the Conservation of Cetaceans
of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS),
the Agreement on the Conservation of the African-Eurasian Migratory Waterbirds
(AEWA) and the Agreement on the Conservation of Seals in the Wadden Sea. In
addition, less formal instruments (Memoranda of Understanding) have been agreed
with the aim of conserving the Marine Turtles of the Atlantic Coast of Africa, Marine
Turtles of the Indian Ocean and South-East Asia, the Aquatic Warbler and Cetaceans of
Pacific Island States.

In accordance with the objectives of the CMS the agreements generally require Parties
to coordinate their efforts to ensure that a network of suitable habitats is maintained
or re-established throughout the entire range of the migratory species concerned. The
ACAP Action Plan (Annex 2 to ACAP) provides that Parties should take special
measures individually and collectively to conserve marine areas considered critical to
the survival and restoration of albatrosses and petrels. The ASCOBANS covers some
areas beyond national jurisdiction in the North Sea but states that conservation and
management measures prescribed in the Annex shall only be applied within the limits of
each Party’s jurisdictions.

28 See section VI.6, above.

22
 VIII. Soft Law
There are various quasi legal or policy instruments on environmental matters which
do not create binding obligations amongst supporting States (see above). However,
they may provide evidence of opinio juris as well as guidance on the interpretation or
application of treaties and customary law. Such instruments often reflect developing
approaches and principles within the international community. They may result in
voluntary compliance by some States creating pressure and expectations on others. Thus
soft law instruments often enjoy a certain degree of authority. The most important ones
for the establishment of MPAs in areas beyond national jurisdiction are introduced in
this section.

1. Declaration of the UN Conference on Environment and

Development

The Declaration on the UN Conference on Environment and Development (Rio

Declaration) was the final document to come out of the United Nations Conference
on Environment and Development held in Rio de Janeiro in 1992.29 It was adopted by
172 governments to guide future sustainable development and comprises a series of
principles defining the rights and responsibilities of States.

The Rio Declaration provides that States enjoy sovereignty over their natural
Rio Principles resources but have the responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environment of other States or areas beyond
national jurisdiction. The Rio Declaration recognises the common but differentiated
responsibilities of States to protect the environment in view of their different
contributions to global environmental degradation. Measures addressing transboundary
or global environmental problems should, as far as possible, be based on an international
consensus. Where there are threats of serious or irreversible damage, lack of full scientific
certainty is not to be used as a reason for postponing cost-effective measures to prevent
environmental degradation.

2. Agenda 21

At the summit in Rio de Janeiro governments also adopted a global plan of action to
promote sustainable development entitled Agenda 21.30 Under Agenda 21 States commit
themselves to prevent, reduce and control degradation of the marine environment in
accordance with the provisions of UNCLOS on the protection and preservation of the
marine environment. To this end the necessity of a precautionary and anticipatory rather
than a reactive approach was recognised.

For the conservation and sustainable use of marine living resources on the high seas
States agree to maintain or restore populations of marine species at levels that can
produce the maximum sustainable yield as qualified by relevant environmental and
economic factors, taking into consideration relationships among species. States have
pledged to ensure effective monitoring and enforcement with respect to fishing
activities, protect and restore endangered marine species and preserve habitats and other
ecologically sensitive areas.

29 http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=78&ArticleID=1163

23
30 http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=52&ArticleID
 3. Plan of Implementation of the World Summit on Sustainable
Development

Ten years after Rio the World Summit on Sustainable Development (WSSD or Earth
Summit) took place in Johannesburg. The WSSD confirmed previous commitments on
sustainable development and drew up a plan of implementation ( Johannesburg PoI)31 to
expedite their realisation.

Reducing the loss The Johannesburg PoI aims to achieve by 2010 a significant reduction in the current
rate of loss of biological diversity. It provides that action should be taken to maintain
of biodiversity the productivity and biodiversity of important and vulnerable marine and coastal areas,
including in areas within and beyond national jurisdiction. International programmes
for halting the loss of marine biodiversity should be developed.

It also encourages the application of the ecosystem approach and provides for the
establishment of marine protected areas consistent with international law, including
representative networks by 2012 and time/area closures for the protection of nursery
grounds and periods. To achieve sustainable fisheries, stocks must be maintained or
restored to levels that can produce the maximum sustainable yield with the aim of
achieving these goals for depleted stocks on an urgent basis and where possible not later
than 2015.

4. Earth Charter

The Earth Charter32 is a civil society declaration of fundamental values and principles
for building a just, sustainable, and peaceful global society in the 21st century. It was
developed and endorsed through an international consultations process involving
NGOs, community groups, professional societies, experts and institutions such as
UNESCO and IUCN. The Charter is used as a reference document and has influenced
other policy processes. The Earth Charter promotes the protection and restoration of
the integrity of Earth’s ecological systems, with special concern for biological diversity
through the establishment of nature and biosphere reserves, including marine areas.

5. IMO’s Particularly Sensitive Sea Areas

The IMO instruments providing for the designation of Special Areas have been
supplemented by the soft law concept of ‘Particularly sensitive sea areas’ (PSSAs).33
Under the Guidelines for the Identification and Designation of PSSAs, a PSSA is an
area that needs special protection through action by the IMO because of its recognized
ecological, socio-economic, or scientific attributes where such attributes may be
vulnerable to damage by international shipping activities. The guidelines provide
guidance to the IMO and its Member States in the formulation and submission of
applications for the designation of PSSAs. They apply within and beyond the limits of
the territorial sea.

Designation of The designation of PSSAs does not result in protective measures beyond those approved
under the IMO Conventions. To designate a PSSA an associated protective measure
areas to prevent or reduce a threat or vulnerability must have been approved by the IMO.
Associated protective measures, under MARPOL or the International Convention
for the Safety of Life at Sea (SOLAS) respectively, could include the imposition of

31 http://www.iisd.ca/2002/wssd/PlanFinal.pdf
32 http://www.earthcharter.org
33 http://www.imo.org/includes/blastDataOnly.asp/data_id%3D14373/982.pdf
24
 traffic separation schemes, areas to be avoided, compulsory pilotage, vessel discharge
restrictions, the designation of a Special Area for SOx emission control as well as the
adoption of ships’ routing and reporting systems.

An application to the IMO for the designation of a PSSA and the adoption of associated
protective measures may be submitted only by a Member Government. Where two or
more Governments have a common interest in a particular area, they should formulate a
co-ordinated proposal.

6. Code of Conduct for Responsible Fisheries

The Code of Conduct for Responsible Fisheries is a voluntary set of principles and
standards applicable to cover the conservation, management and development of all
fisheries. 34 Sections of the Code of Conduct are based on rules of international law
and contain provisions that have been given binding effect by other legal instruments
such as the Agreement to Promote Compliance with International Conservation and
Management Measures by Fishing Vessels on the High Seas (see above).

According to the general principles of the Code, States and users of living aquatic
Ecosystem resources should conserve aquatic ecosystems. The right to fish carries with it the
conservation obligation to do so in a responsible manner so as to ensure effective conservation
and management of living aquatic resources. Fisheries management measures should
promote the maintenance of the quality, diversity and availability of fishery resources
and not only ensure the conservation of target species but also of species belonging to
the same ecosystem or associated with or dependent upon the target species. States,
subregional and regional fisheries management organizations are encouraged to apply a
precautionary approach.

7. UN General Assembly Resolutions on Fishing

The UN General Assembly adopts an annual Resolution on Oceans and Law of the
Sea accompanied by a resolution on sustainable fisheries towards the end of each
calendar year.35 These resolutions address a broad range of maritime issues and include
recommendations as well as calls and invitations to international institutions and States
on actions to be taken.

The 2006 Resolution on Oceans and the Law of the Sea adopted by a vote of 157 State
Confirming representatives to 1 (with 3 abstentions) reaffirms the need for States to continue their
objectives efforts to develop a representative network of marine protected areas by 2012. The 2006
Resolution on Sustainable Fisheries further encourages States to apply by 2010 the
ecosystem approach and measures that incorporate and strengthen the precautionary
approach and consideration of ecosystem approaches to fisheries. It also encourages
accelerated progress to establish criteria on the objectives and management of marine
protected areas for fisheries purposes. It also urges regional fisheries management
organizations to strengthen and modernize their mandates to include an ecosystem
approach to fisheries management and biodiversity considerations, where those aspects
are lacking.

34 http://www.fao.org/fi/website/FIRetrieveAction.do?dom=org&xml=CCRF_prog.xml
35 http://www.un.org/Depts/los/general_assembly/general_assembly_resolutions.htm
25
IX. Establishment of Marine Protected
Areas
The need for protection and conservation of biodiversity on the high seas is emphasised
in many international legal and policy instruments. The protected area or ecosystem
approach is now perceived as a key device in the battle for effective environmental
protection and conservation of the ocean environment and there is significant support
for the general concept of MPAs in international treaties and soft law principles. The
establishment of MPAs in areas beyond national jurisdiction is contemplated in some
of these international instruments, including Agenda 21 and the IMO regulations, and
may be justified under others such as the Biodiversity Convention or the Straddling
Fish Stocks Agreement. There is, however, no global legal framework which defines
international responsibilities and mechanisms in the identification, creation and
protection of MPAs.

This opens up a wide space for interpreting the existing rights and obligations of
States under international law. It raises questions with regard to authority, the scope
of permissible regimes, compliance and enforcement issues. The juxtaposition of
international obligations on environmental protection with a variety of rules on
other ocean uses such as navigation, fisheries or mining can result in uncertainties. To
contextualise some of the legal issues, elements from disparate sources of international
law pertaining to marine environment protection need to be drawn together.

26
Case study – OSPAR MPA

The following table provides an overview of the legal regulations and instruments that may be
applicable to high seas MPAs in the OSPAR area. It only lists international and regional treaties
and does not include EU legislation or national laws.

Human activities Regulations

1. Exploration and exploitation of oil, gas other UNCLOS36, ISA regulations37, CMS38, CBD39, Berne
mineral resources Convention40, ASCOBANS41, AEWA42, OSPAR
Convention43

2. Dumping of solid waste and dredged spoils UNCLOS, LDC44, OSPAR

3. Construction UNCLOS, MARPOL 73/7845, CBD, Berne Convention,
ASCOBANS, AEWA, OSPAR
4. Shipping and navigation UNCLOS, IMO instruments46
5. Placement and operation of submarine cables UNCLOS, CBD, Berne Convention, ASCOBANS,
OSPAR
6. Placement and operation of pipelines UNCLOS, CBD, Berne Convention, ASCOBANS,
OSPAR
7. Fishing, hunting and harvesting UNCLOS, ICRW47, CITES, CMS, CBD, Berne Convention,
ASCOBANS, NAMMCO Agreement48, AEWA, OSPAR,
regional fisheries management agreements49, Fish Stocks
Agreement50, FAO Compliance Agreement51
8. Tourism and recreational activities UNCLOS, CBD, Berne Convention, ASCOBANS, AEWA,
OSPAR
9. Research and bio-prospecting UNCLOS, ICRW, CMS, CBD, Berne Convention,
ASCOBANS, AEWA, OSPAR
10. Noise UNCLOS, CBD, Berne Convention, ASCOBANS, AEWA,
OSPAR Convention
11. Introduction of species UNCLOS, CBD, Berne Convention ASCOBANS, AEWA,
OSPAR Convention

Table OSPAR-MPA based on OSPAR Commission Summary Record MPA 2002/8/1-E, Annex 6

36 United Nations Convention on the Law of the Sea, see Section VI.1, above.
37 See Section VI.10.
38 Convention on the Conservation of Migratory Species of Wild Animals, see Section VI.6.
39 Convention on Biological Diversity, see Section VI.3.
40 Convention on the Conservation of European Wildlife and Natural Habitats, see Section VII.
41 Agreement on the Conservation of Small Cetaceans of the Baltic and North Sea, see Section VII.5.
42 Agreement on the Conservation of African-Eurasian Migratory Waterbirds, see Section VII.5.
43 Convention for the Protection of the Marine Environment of the North-East Atlantic, see Section VII.1.
44 Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter (London Convention), see Section
VI.9.
45 International Convention for the Prevention of Pollution from Ships, see Section VI.9.
46 See section VI.9.
47 International Convention for the Regulating of Whaling, see Section VI.4.
48 Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic.
49 See Section VII.4.
50 See Section VI.2.
51 See Section VI.7.

27
 The following section provides an overview of the current legal discourse. It aims to
identify possible approaches for further development, by disentangling and structuring
some of the main issues under discussion. The section first analyses the emerging
framework for the establishment of MPAs under international treaty law (section 1)
then examines existing customary law (section 2) and offers some conclusions on next
steps (section 3).

1. International Treaty Law

Several regional and international instruments refer to the establishment of MPAs

Recognised need in particular and other international agreements encourage the creation of zones as a
for MPAs means of environmental protection in general. There is overwhelming scientific evidence
indicating that the restoration and conservation of vulnerable marine habitats and
species will only be possible through a global network of MPAs including large areas of
the high seas. An integrated management approach which spans zones and jurisdictions
is also increasingly seen as the only way to successfully protect the ocean. The timelines
formulated by the international community also recognise the urgency of the situation.

In view of this emerging understanding it is difficult to imagine how States might

comply with their treaty obligations to maintain biodiversity, conserve the marine
environment and protect endangered species without establishing global networks of
MPAs. However, there does not appear to be any direct obligation under international
law to establish MPAs on the high seas.

Environmental In relation to marine issues, provisions in international environmental agreements often

overlap with those of UNCLOS. Consequently, in areas beyond national jurisdiction
agreements and environmental protection efforts may be severely restricted by a State’s right under
UNCLOS UNCLOS to exercise high seas freedoms. Most environmental agreements and soft law
documents contain a clause addressing their relationship with UNCLOS. Such clauses
state, for example, that the agreement should be implemented consistently with rights and
obligations of States under the law of the sea or interpreted and applied in the context of and
in a manner consistent with international law, including the United Nations Convention
on the Law of the Sea. UNCLOS itself provides that specific obligations assumed by States
with respect to the protection and preservation of the marine environment should be carried
out in a manner consistent with the general principles and objectives of this Convention.

It has been argued, therefore, that environmental agreements do not create a basis for
further action but rather that they need to be implemented within the wider framework
created by UNCLOS. On the basis of this interpretation, Parties to environmental
agreements would be under no obligation to reduce their uses of the world’s seas and
oceans, provided they took account of the environmental protection measures in
UNCLOS. A variety of other approaches to clarify the relationship between UNCLOS
and environmental agreements have also been suggested. They range from the parallel
application of both treaties to their being mutually complementary. Regardless of the
approach taken, the determinations made by UNCLOS itself with regard to ocean uses
and the obligation to protect and preserve the marine environment are important and
ultimately will play a part in resolving any perceived conflicts between obligations under
UNCLOS and obligations under international environmental agreements.

Environmental When UNCLOS was first drawn up by the Third United Nations Conference on
the Law of Sea (1973-1982), the emphasis was often more on allocating the available
protection as part resources of the sea rather than on securing their survival. Protection of the marine
of UNCLOS environment was not the primary concern. A historical interpretation is therefore more
28
 likely to see the balance between use and protection tip towards the former.

UNCLOS is a living instrument, however, that must be interpreted in light of present-

day conditions and requirements. The need to take into account the interests of the
international community as a whole is an underlying principle of the Convention. In
fact, it could be said that UNCLOS limits the freedom of the high seas in favour of
the interests of humanity – lending credence to the argument that UNCLOS would
support the creation of MPAs on the high seas where the benefit to mankind is deemed
greater than competing uses.

Emphasising the environmental dimension of UNCLOS, many States hold that the
Using existing current international regime is sufficient to provide for effective marine environment
tools protection of the high seas. In other words, by using and expanding existing mechanisms,
such as the provisions in regional agreements or the IMO’s regulations on designating
special and particularly sensitive areas, the tools for establishing MPAs are available
to the international community. Where a State fails in its duty to cooperate in the
protection and preservation of the marine environment from overfishing, for example, it
may eventually forfeit the right for its nationals to participate in this high seas freedom.

Nevertheless, the establishment of marine protected areas beyond national jurisdiction

Limits of effective would still need to take into account legitimate uses of the high seas prescribed by
protection law. Depending on geographic location and the activities being regulated, this could
result in a complex network of legal relationships with various gaps or uncertainties.
For example, while there is substantial guidance in existing instruments to limit fishing
activities, other potential environmental threats such as the laying of undersea cables
have yet to be addressed. There is limited basis for preventing vessels from navigating
through particular waters and, even so, compliance and enforcement depend entirely
on the will of States under the regime. Under current institutional arrangements, there
is no one authority with a global mandate to regulate the high seas. Deep seabed issues
come under the authority of the ISA while the control of vessels on the high seas is the
purview of the IMO. Regional management agreements have also carved out varying
degrees of jurisdiction over the high seas.

Contractual There is scope for elaborating environmental protection vis-à-vis traditional high seas
freedoms through contractual arrangements, but this serves to highlight a fundamental
obligations challenge. Any contractual or treaty based regime can only confer rights and obligations
to States which are willing Parties to the regime. The rights and obligations of non-
Parties remain unaffected. Even where all States with a particular interest in the high
seas area were to agree on a regulatory regime, they would not create binding obligations
for external Parties. In these circumstances enforcement and compliance remain a
significant dilemma.

2. Customary Law

Many believe that the obligation to protect the environment in areas beyond national
Erga omnes jurisdiction has acquired the status of a legal obligation owed to the international
obligaton community (erga omnes) regardless of specific contractual arrangements. It is generally
recognised under customary international law that where States exploit common natural
resources, they must consider the interests of other States and should aim for equitable
utilisation. They are required to make reasonable use of all common space and control
and prevent pollution. It has been argued, therefore, that the establishment of MPAs on
the high seas can be based on customary international law.

29
Precautionary In addition, the precautionary principle may require States to take protective
measures for the marine environment. Against a backdrop of scientific uncertainty,
principle the precautionary principle (or approach) can be described as a tool for preventing
further environmental degradation. As defined in the Rio Declaration and subsequent
international environmental agreements, the precautionary principle provides guidance
to States in the face of scientific uncertainty. States may not rely on scientific uncertainty
to justify undertaking activities that could have an adverse impact on the environment or
regulatory inaction.

To date, the vast majority of marine protected areas have been established by Coastal
MPAs under States within their territorial seas. As part of their sovereign rights over these seas,
national they are entitled to take the measures they deem necessary to protect the marine
jurisdiction environment. This includes the establishment and effective management of MPAs under
domestic law. Under UNCLOS a State’s rights in its territorial waters are limited only by
the right of other State vessels to pass through peacefully (‘right of innocent passage’). It
should be noted, however, that ships navigating through a Coast State’s territorial waters
are required to comply with the Coastal State’s environmental laws and regulations.

The rights of a Coastal State in its EEZ are more restricted, and consequently, fewer
MPAs have been established in EEZs. Measures implemented by a Coastal State in
its EEZ must relate to its exclusive rights in the zone, particularly in respect of the
economic use and management of natural resources. Nevertheless, the Coastal State
remains responsible for the protection and conservation of the marine environment in
its EEZ, which includes taking action to combat pollution and dumping. The Coastal
State is entitled to take a variety of measures, which may comprise the creation of no take
areas, closed seasons or complete bans on fishing, tourism and other economic activities
such as off shore drilling installations or wind farms.

Only a very few protected areas have been declared in areas beyond national jurisdiction.
MPAs in They are limited to whaling and marine mammal sanctuaries, special areas under
international MARPOL, areas under the Antarctic Treaty and additional seasonal closings and
waters area-based conservation measures under the auspices of regional fisheries management
organisations (RFMOs). The establishment of areas with a wider scope of protective
regime addressing multiple human activities has been discussed by a number of RFMOs.
Organisations such as WWF and IUCN are actively campaigning for networks of
MPAs in different highs seas areas.

So far, however, State practice is ambiguous. For example, the Pelagos Sanctuary
State practice for Mediterranean Marine Mammals, recognised as a SPAMI under the Barcelona
Convention (see Section VII.2), covers high seas waters, but this is only the case because
most Mediterranean States have not (or have only partly) declared a 200 nautical
mile EEZ. Although the Southern Ocean was declared a whale sanctuary in 1994,
some countries, Japan in particular, have continued fishing there for alleged scientific
purposes. A Special Area under MARPOL has been established and various Antarctic
Specially Protected Areas have been established in the Southern Ocean below 60
degrees. However, since some States have territorial claims to the Antarctic views differ
as to whether the area actually lies beyond the limits of national jurisdiction.

Changing There is limited evidence to suggest that customary international law would allow for
the establishment of MPAs on the high seas. To date, conservation measures related to
customary law? the high seas have been undertaken in connection with existing treaty regimes. Thus,
State practice only appears to confirm the principle that the conservation of the marine
environment on the high seas should be the collaborative effort of all States concerned.
30
 Under customary international law the different lawful uses of the high seas such as
navigation, fishing and the conservation of natural resources must be balanced not only
against one another other but also against the interests of the international community.
In practice, stronger States are often able to insist upon the acceptance of their own
uses of the high seas notwithstanding that such uses may not strike the right balance
in the views of States with less influence. There appears to be sufficient evidence in
international legal and policy instruments to conclude that the balance is shifting
towards environmental protection. The scope and permanency of this shift will be
determined by the practice of States in the years to come.

3. Next steps

Arguments supporting the creation of MPAs on the high seas can be developed on
Approaches different bases. Through international treaty and customary law the traditional high
for improved seas freedoms have gradually been restricted to encompass the notion of common
protection of the international interests. There are no agreed means for establishing MPAs in areas
beyond national juristiction because different activities are addressed by different legal
high seas frameworks and new or emerging activities are not yet subject to detailed regulation.
High seas MPAs would need to incorporate a wide range of legitimate ocean uses and
take account of varying rights and obligations. Therefore, even should a means for
establishing high seas MPAs be agreed, there would continue to be problems of general
application and compliance jeopardising their effectiveness and potential success.

In order to develop a more coherent framework that addresses some of these concerns,
a number of approaches and ideas are currently being reviewed at the international
level. These approaches may be broadly summarised into three different trends: 1)
nationalising conservation efforts; 2) strengthening current structures; and 3) expanding
international frameworks. A brief overview of each of these three trends follows.

The first priority for Coastal States to date has been the protection of living resources
“Nationalising” and biodiversity within their own national jurisdiction. The lack of similar efforts on
conservation the high seas has been attributed to a lack of competencies and interpreted as evidence
efforts that the concept of a global commons is incapable of ensuring adequate environmental
protection. This trend advocates the extension of Coastal State responsibilities beyond
the current limits of jurisdiction into the high seas.

Pending the development of international frameworks for environmental protection

Strengthening on the high seas, existing regional or activity focused protection regimes could be
current structures strengthened through global participation. By joining and implementing existing
initiatives States could ensure that their vessels and nationals comply with the rules
related to MPAs wherever these are located. The robustness of area-based measures could
be further improved through linkages amongst different treaty regimes. The importation
of species taken in an MPA established by an RFMO, for example, could be prohibited
under CITES.

The establishment of a globally recognised system of MPAs is crucial for effective marine
Expanding environmental protection of the oceans. However, the current range of permissible
international regimes, coupled with issues around compliance, enforcement, and ultimately, State
sovereignty issues, render such a system unworkable. Instead, a new global agreement
frameworks could be developed that specifically deals with environmental protection on the
high seas. Such an agreement could bridge the gap between UNCLOS, regional
fisheries agreements and environmental treaties. To allow for the establishment of a

31
comprehensive protection regime reflecting the ecosystem approach such an agreement
should be able to cover all existing and potential human activities on or affecting the
high seas.

An expansion or strengthening of the international legal framework could be further

supported through the collaboration of international organisations with competencies
or particular interests in ocean areas beyond national jurisdiction. For example,
institutional linkages could be forged between RFMOs, the IMO and the ISA. The
current multitude of existing programmes and initiatives risks fragmenting efforts to
protect the marine environment. Despite the existence of a sophisticated network
of consultations and instruments at different levels, the marine environment is
deteriorating, and whilst the international community has acknowledged that greater
coherence is required, not much action has yet been taken.

32
X. Ongoing Policy Processes
Several international organisations have given rise to processes that are currently playing
a role in developing adequate ocean management strategies. These processes provide
fora for discussion, allow for the review of existing mechanisms, help to identify gaps
and oversee the launch of new initiatives. This section provides a brief overview of the
main global processes involved in shaping developments related to the establishment of
marine protected areas on the highs.

1. Convention on Biological Diversity - Conference of the Parties

Following a change in the rules of procedure in 2000, the Conference of the Parties
(COP) to the Convention on Biological Diversity (CBD) is now held every two years,
with the possibility of summoning extraordinary meetings. The COP’s mandate is to
review the implementation of the CBD and undertake any additional action that may be
required for the achievement of its objectives. The COP can review new scientific data,
consider and adopt further legal instruments, establish subsidiary bodies and cooperate
with the executive bodies of other international treaties dealing with matters covered by
the CBD.

In 1995, the second meeting of the COP identified the conservation and sustainable use
of marine biodiversity as an early priority for action and adopted a programme of work
on protected areas (see above Jakarta Mandate). The seventh meeting of the COP, held
in Kuala Lumpur in February 2004, adopted the target to develop a global network of
marine and coastal protected areas by the year 2012 and established an Ad Hoc Open-
ended Working Group on protected areas. The first meeting of the Working Group took
place in June 2005 and the second meeting will be held in Rome, Italy, from 11 to 15
February 2008.

At the eighth meeting of the CBD COP, held in Curtiba, Brazil in March 2006, a
number of decisions were made and initiatives taken around MPAs and deep seabed
resources. The COP recognised the CBD’s key role in supporting the work of the UN
General Assembly with regard to MPAs beyond national jurisdiction, by providing
scientific and technical information and advice relating to marine biological diversity,
the application of the ecosystem approach and the precautionary approach, and by
delivering the 2010 target. The COP listed MPAs as one of a range of options for
protecting deep seabed genetic resources beyond national jurisdiction.

At the high-level Ministerial meeting connected with COP-8, the President of Palau
issued the Micronesian Challenge. Signatories to the Challenge have agreed to protect at
least 30 per cent of their marine territory by 2020.

2. Meeting of States Parties to UNCLOS

The meetings of States Parties to UNCLOS are generally limited to budgetary and
administrative matters. States Parties to UNCLOS do not have the express mandate
to review UNCLOS, its implementation or new uses of the sea. The UN Secretary-
General is required to convene meetings as necessary, for example, for the election of
the members of the International Tribunal for the Law of the Sea. At present States
Parties to UNCLOS meet annually at the seat of the United Nations in New York.
Non-governmental organizations may participate as observers. The United Nations
Secretariat through their Division for Ocean Affairs and the Law of the Sea operates as
Secretariat to the Meetings of States Parties.
33
3. UN Informal Consultative Process on Oceans and the Law of
the Sea

Since 2000 the General Assembly of the United Nations has held an open-ended
informal consultative process on ocean affairs and the law of the sea to assist its
annual review of the subject area (following the Secretary-General’s annual report).
The consultative process aims to study developments in ocean affairs consistent with
UNCLOS and Agenda 21, identifies issues to be considered by the General Assembly
and facilitates intergovernmental and interagency cooperation. The meetings are open
to intergovernmental organizations with competence in ocean affairs. They usually take
place for about a week during the summer.

In 2004 the General Assembly also established 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. The main objective
of the Working Group is to indicate possible approaches to promote international
cooperation for the conservation and sustainable use of marine biodiversity. The first
meeting was convened in New York from 13 to 17 February 2006. Observers included
IGOs, UN agencies and NGOs whose representatives stressed the need for the
development of a new ocean governance regime for the high seas.

4. Informal Consultations of Parties to the UN Fish Stocks

Agreement

The Parties to the UN Fish Stocks Agreement have held informal consultation meetings
at UN headquarters in New York every year since 2002 to consider the regional and
global implementation of the agreement, make recommendations to the General
Assembly on the scope and content of the annual report of the Secretary-General
relating to the Agreement and prepare for the Review Conference.5236NGOs such as
Greenpeace and WWF attend the meetings as observers.

An international conference was held in New York from 22 to 26 May 2006 to review
the effectiveness of the Fish Stocks Agreement. The Review Conference encouraged
States to recognize that the general principles of the Agreement should also apply to
discrete fish stocks in the high seas. It also recommended that States individually and
collectively through regional fisheries management organizations develop management
tools, including closed areas, marine protected areas and marine reserves and criteria
for their implementation to effectively conserve and manage straddling fish stocks,
highly migratory fish stocks and high seas discrete stocks and protect habitats, marine
biodiversity and vulnerable ecosystems. The Conference further agreed to continue the
informal consultations of States Parties and keep the Agreement under review through
the resumption of the Review Conference at a date not later than 2011.

5. Meetings of the International Seabed Authority

The principal organs of the International Seabed Authority (ISA) established under
UNCLOS to control the exploitation of seabed resources beyond natural jurisdiction
are the Assembly, the 36 State Council and the Secretariat. As the executive organ, the
Council is largely responsible for the implementation of the Authority’s mandate and
the formation of policies. The Assembly in which all States Parties to UNCLOS have
one representative is the forum that formally adopts most major decisions. It meets

52 http://www.un.org/Depts/los/convention_overview_fish_stocks.html
34
annually at the seat of the organisation in Jamaica. The Secretariat has responsibility for
the ISA’s administration and its relations with other organisations.

With the approval of the Council, the Secretariat makes suitable arrangements for
consultation and cooperation with NGOs recognized by the Economic and Social
Council of the United Nations. The Secretariat may also distribute to States Parties
written reports submitted by NGOs on subjects in which they have special competence.

6. Conference of the Parties to CITES

The Parties to CITES meet every two to three years to review the implementation of
the Convention. The Conference of the Parties (COP) meetings last for about two
weeks and are usually hosted by one of the Member States. They provide the occasion
for the Parties to review progress in the conservation of species, amend the Appendices
and recommend measures to improve the effectiveness of the Convention. Any non-
governmental organizations involved in the conservation or management of wild fauna
and flora which has informed the Secretariat of its desire to attend the meeting may
participate (without vote) as an observer unless at least one-third of the Parties object.
The CITES Secretariat is housed in the United Nations Environment Programme
(UNEP) and is located in Geneva, Switzerland.

7. Conference of the Parties to CMS

The decision-making organ of the Convention on the Conservation of Migratory

Species and Wild Animals (CMS) is the Conference of the Parties (COP). The COP
can make recommendations to the Parties on improving the conservation status of
migratory species and the effectiveness of the Convention in general as well as on any
additional measures that need to be taken to implement its objectives. A Standing
Committee provides policy and administrative guidance between the regular meetings
of the COP. A Secretariat under the auspices of the United Nations Environment
Programme (UNEP) provides administrative support. The Conference of the Parties
meets at intervals of not more than three years. The next CMS Conference of the Parties
(COP9) will take place in 2008. NGOs may participate as observers subject to the same
conditions provided for under CITES.

Several regional agreements and memoranda of understanding have been negotiated

under the auspices of the CMS to promote cooperation in protecting individual
maritime species such as cetaceans, seals in the Wadden Sea, migratory water birds,
albatrosses, petrels, and marine turtles. These conservation regimes have their own
organisational structures with meetings of Parties which are also open to observers from
NGOs.5337

8. International Whaling Commission

The International Whaling Commission was established by the 1946 Convention for
the Regulation of Whaling. Member States are represented by one commissioner. Each
year, usually in May or June, the Annual Meeting of the Commission is held, either
by invitation in a member country or in the UK where the organisation’s Secretariat
is based. Any international organisation with offices in at least four countries may
be represented at meetings of the Commission by an observer. The main duty of the
International Whaling Commission is to review and revise the measures laid down
in the Schedule to the Convention governing the conduct of whaling throughout the
world.
53 See http://www.cms.int/about/intro.htm for a listing of agreements and MOUs.
35
Annex 1 – Regional agreements

Regional seas agreement

1959 Antarctic Treaty

1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention),
revised 1992
1976 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean
(Barcelona Convention) revised in June 1995 as the Convention for the Protection of the Marine Environment and
the Coastal Region of the Mediterranean (not yet in force)
1978 Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from
Pollution (Kuwait Convention)
1980 Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment
of the West and Central African Region (Abidjan Convention)
1981 Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific
(Lima Convention)
1982 Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment ( Jeddah
Convention)
1983 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean
Region (Cartagena Convention)
1985 Convention for the Protection, Management and Development of the Marine and Coastal Environment of
the Eastern African Region (Nairobi Convention)
1986 Convention for the Protection of Natural Resources and Environment of the South Pacific Region (Noumea
Convention)
1992 Convention on the Protection of the Black Sea Against Pollution (Bucharest Convention)
1992 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
2002 The Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal
Environment of the Northeast Pacific
2003 Framework Convention for the Protection of the Marine Environment of the Caspian Sea

Regional fisheries/marine resources management agreements

1948 Agreement for the Establishment of the Asia-Pacific Fishery Commission

1949 Agreement for the establishment of a General Fisheries Commission for the Mediterranean
1949 Convention for the establishment of an Inter-American Tropical Tuna Commission
1952 Agreement on the Organization of the Permanent Commission of the Conference on the Use and
Conservation of the Marine Resources of the South Pacific
1966 International Convention for the Conservation of Atlantic Tuna
1967 Convention on Conduct of Fishing Operations in the North Atlantic
1973 Convention on Fishing and Conservation of the Living Resources in the Baltic Sea and Belts
1979 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries
1979 South Pacific Forum Fisheries Agency Convention
1980 Convention on the Conservation of Antarctic Marine Living Resources
1980 Convention on Future Multilateral Cooperation in the Northeast Atlantic Fisheries
1982 Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest
1982 Convention for the Conservation of Salmon in the North Atlantic Ocean
1982 Agreement Instituting the Latin American Organization for Fisheries Development
1984 Convention Concerning the Regional Development of Fisheries in the Gulf of Guinea
36
1985 Convention for the Establishment of a Sub-Regional Commission on Fisheries
1987 Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the
United States of America
1991 Western Indian Ocean Tuna Organization Convention
1992 Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean
1992 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region
1992 Arrangement for the Management of the Western Pacific Purse Seine Fishery (Palau Arrangement)
1993 Convention for the Conservation of Southern Bluefin Tuna
1993 Convention regarding the Determination of Conditions of Access to and Exploitation of Fisheries Resources
off the Coasts of the Sub-Regional Fisheries Commission Member States
1993 Agreement for the Establishment of the Indian Ocean Tuna Commission
1994 Convention on the Conservation and Management of Pollock Resources Central Bering Sea
1999 Agreement for the Establishment of the Regional Commission for Fisheries
1999 Agreement concerning Certain Aspects of Cooperation in the Area of Fisheries
2000 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and
Central Pacific Ocean
2000 Agreement for the Establishment of the International Organization for the Development of Fisheries in
Eastern and Central Europe
2001 Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic
Ocean
2001 South African Development Community Protocol on Fisheries
2002 Agreement establishing the Caribbean Regional Fisheries Mechanism
2003 Convention for the Strengthening of the Inter-American Tropical Tuna Commission established by the
1949 Convention between the United States of America and the Republic of Costa Rica

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Annex 2 – Overview of high seas stakeholders
Stakeholders Activities
Public entities
International governmental organisations: Cooperation with national authorities in formulating
Regional Fisheries Management Organizations, codes and regulations
the International Maritime Organization and the
International Seabed Authority
Government authorities Creation, monitoring and enforcement of rules related
to high seas uses (e.g. fishing quotas or ban on bottom
trawling), navigation of military vessels
Donors (international governmental organisations Provision of financial assistance to developing countries
such as the World Bank or governments) (e.g. capacity building on pollution prevention or ship
registration)
Trade bodies
International Association of Classification Societies Definition of standards of safety for the entire maritime
industry
International groups of protection and indemnity clubs Coverage against third party liabilities in case of
personal injuries, cargo damage, collision and oil
pollution
Sea ports organisations (e.g. International Associations Addressing environmental issues, such as the handling
of Ports and Harbours) of hazardous and noxious substances carried by ocean
vessels
Shipyards associations Shipbuilding production
Seafarer and other Unions Supporting activities in order to implement safety
measures
Industries with a direct (potential) economic interest in the high seas
Pharmaceutical industry Research programmes on deep-sea genetic material
Recreational marine industry group Cruise tourism
Fishing industry Fish capture and aquaculture
Dredging industry Dumping of nuclear waste or other solid waste
Ship-owners and maritime transport industry Navigation
Seabed mining industry Extractive activities related to e.g. polymetallic nodules,
sulphides and cobalt-rich crusts
Oil & gas exploitation companies Extractive activities for the purpose of energy
development
Telecommunications industry Implant of cables and pipelines
Science institutions
Marine scientific research institutes Meteorological and oceanographic observations,
bioprospecting
Association of Universities in Marine Technology and Marine vessels engineering studies
Related Sciences
Marine Equipment Council Development and supply of machinery and equipment
to the marine value chain and stakeholders
Others
Environmental Non- Governmental Organizations Nature conservation, organising legal, economic and
scientific projects related to the high seas (e.g.
combating illegal and unreported fishing)

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Further reading
Kimball, L. A., The International Legal Regime of the High Seas and the Seabed Beyond
the Limits of National Jurisdiction and Options for Cooperation for the Establishment
of Marine Protected Areas (MPAS) in Marine Areas Beyond the Limits of National
Jurisdiction. CBD Technical Series No. 19, 2005

Gjerde, K. M., Ecosystems and Biodiversity in Deep Waters and High Seas. UNEP
Regional Seas Report and Studies No. 178, 2006

Scovazzi, T., Marine Protected Areas on the High Seas: Some Legal and Policy
Considerations. International Journal of Marine and Coastal Law, Vol. 19, No 1, 2004,
pp.1-17

Churchill, R. and Lowe, V., The Law of the Sea, 3rd edition, 1999

Protection of vulnerable high seas and deep oceans biodiversity and associated oceans
governance, DEFRA Scoping Study, 2004

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