Protecting Marine Biodiversity

Protecting marine biodiversity:

Core concepts in international agreements

Jon Nevill 23 June 2006

Abstract:

This paper aims to present an overview of the most important international instruments influencing the protection of marine biodiversity, focusing largely on certain central commitments which nation-States have accepted under such instruments. These relate to: (a) the strategic establishment of protected area networks, (b) the use of ecosystem-based management, and (c) the precautionary approach (including commitments to the prior assessment of activities). The conservation of high seas biodiversity is currently a major issue for the international community, and some information on this issue is also presented.

Readers needing more comprehensive coverage of international ocean governance issues should refer to detailed reviews such as Kimball (2001).

Overview:

The most important vehicles for international programs and initiatives in regard to the protection of the marine environment are:

·  International agreements, such as treaties and conventions, sponsored by the United Nations (or major associated bodies, such as the UN Food and Agriculture Organisation, FAO[1]);

·  Regional agreements sponsored by the United Nations or large regional State groupings, such as the European Union (eg: regional planning or fisheries agreements[2]);

·  Decadal global conferences on the environment sponsored by the United Nations; (most recently the World Summit on Sustainable Development 2002), and

·  Resolutions of the United Nations General Assembly[3].

These statements and agreements influence the programs that States develop to conserve the marine environment within their own jurisdictions. They also influence the flow of funds into special-purpose international programs - for example those targeting under-developed nations. The Global Environmental Facility (GEF) for example, channels a portion of its funds into the Global Programme of Action (or to use it's full title: the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities). The GEF is a UN initiative, funded by about 30 donor States, with project money channelled through the programs of the World Bank, UNEP and UNDP.

Large international Non-Government Organisations (NGOs) - such as the World Conservation Union (IUCN) or WWF-International - seek to influence these vehicles. Various global and national agencies - such as the FAO - also seek to influence the larger of these vehicles, along with international industry lobby groups and nation-state groupings.

Broadly speaking, the oceans of the world face five major threats:

·  overfishing with attendant bycatch problems, from commercial fishing, recreational fishing, illegal unregulated and unreported fishing (IUU), and ghost fishing;

·  habitat damage largely caused by fishing gear, especially bottom trawling, but also including the destruction of coral reefs, mangroves, natural freshwater flows, coastal wetlands and sometimes entire estuaries;

·  changes to oceanic temperatures, acidity and currents, largely caused by increasing atmospheric carbon dioxide, as well as impacts from damage to the ozone layer;

·  pollution (in-sea and land-based, diffuse and point source) ; and

·  ecosystem alterations caused by the introduction of alien organisms, especially those transported by ballast water and hull fouling.

National and international programs aimed at protecting marine biodiversity must address these major threats.

International commitments to protect the planet's biodiversity, especially marine biodiversity, can be found in many global statements and agreements – too many to discuss here[4]. Among the most important are:

·  the Stockholm Declaration 1972 (UN Conference on the Human Environment);

·  the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) 1980.

·  the World Charter for Nature 1982 (a resolution of the United Nations General Assembly (UNGA));

·  the UN Convention on the Law of the Sea 1982 (UNCLOS);

·  the Rio Declaration 1992 (UN Conference on Environment and Development),

·  the Convention on Biological Diversity 1992,

·  the FAO Compliance Agreement 19931

·  the FAO Code of Conduct for Responsible Fisheries 1995,

·  the UN Fish Stocks Agreement 19952, and

·  the Johannesburg Declaration 2002 (UN World Summit on Sustainable Development).

Notes: full titles:
1. Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas; FAO Rome November 1993;

2. 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; 1995.

The above list includes both soft and hard law instruments, and is not comprehensive[5]. Hard law instruments carry compliance responsibilities, usually in the form of reporting requirements and dispute resolution provisions. Although soft law instruments carry no such responsibilities, they can be equally effective in influencing member State programs if enthusiastic attempts are made to incorporate their goals and principles into State legislation, policies or budgets. For example, the Rio goals are soft law, however many nations, including Australia and the EU, undertook national reporting against the Rio goals.

Three management concepts of particular importance have developed over the last few decades, and have been accepted broadly by the international community through inclusion in strategic commitments made in major statements and agreements. Implementation of these international commitments, however, has been slow. These three key concepts are:

·  ecosystem-based management (particularly of fisheries, but applying broadly to the marine environment);

·  the strategic[6] use of networks of marine protected areas; and

·  the precautionary principle or its softer version the precautionary approach.

Key statements and agreements listed above are discussed below, focussing on these three concepts.

Two other related concepts are discussed in passing:

·  anticipatory assessment of the environmental impacts of proposed activities, and

·  control of the activities of nationals (including flagged vessels) on the high seas.

As with the earlier three management concepts, these latter two have also proved difficult to implement in practice. Prior ecological assessment of proposed activities is often seen as an essential component of the precautionary approach.

While the history of marine protected areas dates back well over a century[7], the advocacy of ecosystem based management in international agreements appears to date from 1980, while similar advocacy of the precautionary approach appears to date from 1982 (see discussion below). Both these concepts were in currency years or decades before appearing in international agreements, however[8].

The following section discusses each instrument from the above list, in chronological order.

Key instruments:

Stockholm Declaration 1972 (UN Conference on the Human Environment)

Principle 2 of the Stockholm Declaration states: “The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate” (my emphasis).

The emphasised section provides, essentially, a commitment to the development of protected area networks partly focused on the conservation of representative examples of major natural ecosystems. An examination of the wording of the Declaration reveals that it places wide obligations, not only on governments, but on all agencies of governments as well as individuals to act so as to achieve the stated objectives (preamble para. 7).

The Stockholm Declaration does not advocate precautionary action, nor does it advocate ecosystem-based management.

Convention on the Conservation of Antarctic Marine Living Resources 1980

The Convention, although a regional rather than a global instrument, is extremely important in a global context. Even though the Convention is now over 25 years old, it remains as the only regional marine convention (with the arguable exceptions of the Barcelona Convention in the Mediterranean, and the Helsinki Convention in the Baltic) focused on ecosystem protection rather than resource exploitation. The Commission to the Convention was the first marine management agency to begin implementing an ecosystem-based management approach.

The Convention, through Article I, attempted to define an area of responsibility based on ecosystem boundaries rather than using political or administrative approaches.

Article II(3) defined three “principles of conservation”, of which the second and third principles identify the need for harvesting management to (a) protect entire ecosystems, and (b) take a cautious approach to ecological risk. While this last principle lacks the explicit anticipatory element of the precautionary principle (see below), it has in practice been interpreted as mandating a true precautionary approach (Kock 2000: executive summary).

Article IX(2)g allows the Commission to establish areas closed to exploitation, including “special areas for protection and scientific study” – thus enabling (but not requiring) the Commission to establish marine protected areas.

Article XV(2)d, relating to the activities of the Scientific Committee, establishes an obligation to prior impact assessment of harvesting activities.

In summary, the provisions of the Convention contain (or have been interpreted to contain) requirements for precautionary, ecosystem-based management of the living marine resources of the region. The subsequent activities of the Commission have, in fact, set global benchmarks in this regard.

The Convention, importantly, emphasises the role of ‘best available science’ in determining management decisions. Article IX confers a duty on the Convention Commission to: “formulate, adopt and revise conservation measures on the basis of the best scientific evidence available… “

On the matter of marine protected areas, it can be argued that (IUU fishing activities and non-Party States aside) the whole of the CCAMLR region qualifies as a category IV marine protected area under the IUCN’s definitions (IUCN 1995). However, CCAMLR itself, while recognising issues of IUCN classification, has not requested entry to the World Database on Protected Areas. CCAMLR is preparing to hold a second MPA workshop in 2007.

Articles X, XXI and XXII establish obligations for States to control the activities of their nationals (including flagged ships) in regard to compliance with the requirements and the principles of the Convention, thus anticipating the later requirements of the Law of the Sea in this regard (see below).

The Convention came into force in 1982.

World Charter for Nature 1982 (a resolution of the United Nations General Assembly)

Although a voluntary statement, without any suggestion of the need for compliance monitoring, the Charter is an important document, as it firmly establishes a number of fundamental management approaches on the international agenda:

·  the need for an ethical approach to utilising natural ecosystems (preamble para. four);

·  the need for protected area networks including representative ecosystems (see below);

·  the need to apply an ecosystem-based approach to managing natural ecosystems (see below);

·  a duty to use a precautionary approach where there are significant risks of ecosystem damage (see below);

·  the need for prior assessment of likely environmental impacts (articles 11c, 16);

·  the need for general education programs to encompass ecosystem issues (article 15);

·  the need for inventories of ecosystem assets (article 16); and

·  the need for monitoring programs, including assessments of ecosystem conservation status (article 19).

The World Charter for Nature states: article three: “All areas of the earth, both land and sea, shall be subject to these principles of conservation; special protection shall be given to unique areas, to representative samples of all the different types of ecosystems, and to the habitat of rare or endangered species.”

This article provides a repetition of the earlier Stockholm commitment to the development of protected area networks partly focused on the conservation of representative examples of major natural ecosystems.

Article four, continuing from the above quote, states: “Ecosystems and organisms, as well as the land, marine and atmospheric resources that are utilized by man, shall be managed to achieve and maintain optimum sustainable productivity, but not in such a way as to endanger the integrity of those other ecosystems or species with which they coexist.”

This article provides a broad commitment to ecosystem-based management.

Article 11 provides a commitment to the precautionary principle and to prior impact assessment:

Activities which might have an impact on nature shall be controlled, and the best available technologies that minimize significant risks to nature or other adverse effects shall be used; in particular:

(a) Activities which are likely to cause irreversible damage to nature shall be avoided;

(b) Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed;

(c) Activities which may disturb nature shall be preceded by assessment of their consequences, and environmental impact studies of development projects shall be conducted sufficiently in advance, and if they are to be undertaken, such activities shall be planned and carried out so as to minimize potential adverse effects;

Again, an examination of the wording of the Charter reveals that it places wide obligations, not only on governments, but on all agencies of governments as well as individuals to act so as to achieve the stated objectives (article 21).

United Nations Convention on the Law of the Sea 1982 (UNCLOS)

The United Nations Convention on the Law of the Sea is a comprehensive and impressive body of international law, the result of decades of discussion, argument and negotiation. It contains several important, although general, provisions relating to the conservation of the marine environment.

UNCLOS consolidated the CCAMLR provisions of 1980 regarding State control of the activities of nationals (including vessels) - see below. UNCLOS established the core jurisdictional provisions which provide the framework for marine management today.

Under UNCLOS the national jurisdiction of coastal States over the oceans extends generally to the outer margin of the 200 nm exclusive economic zone (EEZ). Continental margins may extend coastal States’ jurisdiction further to a maximum of 350 nm from baselines. Coastal states enjoy sovereign rights for the purpose of exploring, exploiting and managing natural resources within the limits of their EEZ. Related rights over continental shelf extensions are limited to the mineral and other nonliving resources of the seabed and subsoil together with sedentary species of living organisms.

The high seas (areas beyond national jurisdiction) generally commence at the outer limit of the EEZ except for sedentary species. There are however, exceptions. In the Antarctic, except for the waters adjacent to State-managed sub-Antarctic islands, high seas start at low water mark – as the provisions of the Antarctic Treaty have effectively set aside national differences over territorial claims.