MARINE PROTECTED AREAS AND ABNJs

~LEGAL RAMIFICATIONS AND INTERNATIONAL LAW

-R.S.PORNIMA 1

1 III Year LAW STUDENT`~ SOEL, CHENNAI

ACRONYMS USED

ABNJAreas beyond national jurisdictionCBDConvention on Biological DiversityCMS Convention on theConservation of Migratory Species of Wild AnimalsEIAEnvironmental Impact AssessmentEUEuropean UnionFAOUnited Nations Food and Agriculture OrganizationIMOInternational Maritime OrganisationISAInternational Seabed AuthorityIUUIllegal, unreported and unregulated (fishing)JAMPJoint Assessment and Monitoring ProgrammeMGRMarine Genetic ResourcesMPAsMarine Protected AreasMSRMarine Scientific Research

NAFONorthwest Atlantic Fisheries OrganisationNEAFCNorth-East Atlantic Fisheries CommissionNGOsNon-Governmental OrganisationsOSPAR Convention for the Protection of theMarine Environment of the NE AtlanticPSSAsParticularly Sensitive Sea AreasRFBsRegional Fisheries BodiesRFMORegional Fisheries Management OrganisationRFMOs/As Regional FisheriesManagement Organisations and ArrangementsSBSTTA CBD Subsidiary Body on Scientific,Technical and Technological AdviceSEAStrategic Environmental AssessmentTRIPS Agreement on Trade-Related Aspects of Intellectual Property RightsUNUnited NationsUNCLOSUnited Nations Convention on the Law of the SeaUNEPUnited Nations Environment ProgrammeUNESCO United Nations Educational,Scientific c and Cultural OrganizationUNFSAUnited Nations Fish Stocks AgreementUNICPOLO United Nations Open-ended Informal ConsultativeProcess on Oceans and the Law of the Sea

WSSDWorld Summit on Sustainable Development

1. INTRODUCTION

The Law of the Sea (UNCLOS, in force since 1994) provides the

rights and duties to coastal states in a set of differentiated

legal zones. The sovereign rights afforded include the

exploration and exploitation of living and non-living resources

in waters and seafloor under national jurisdiction. On the

contrary, the general duty established by UNCLOS for all states

to “preserve and protect the environment” (Art. 192), in

particular those which are “rare or fragile ecosystems as well as

the habitat of depleted, threatened or endangered species and

other form of marine life” (Art. 194 (5)) is not limited to any

legal zone and includes waters and seafloor in areas beyond

national jurisdiction. Areas beyond national jurisdiction (ABNJ)

are the open ocean waters beyond the coastal states; Exclusive

Economic zones (200 NM), and the seafloor seawards of the

(extended) continental shelf boundaries (“the Area”), as of the

decisions taken by the UN Commission on the Limits of the Continental

Shelf2. Therefore some uncertainty exists as to whether and to

what extent national sovereignty exists with respect to the2 41 ILR 29

seafloor included in the submissions, and how potential marine

protected areas with dual legislation, the seafloor under

national, the water column under international legislation could

operate.

The International Seabed Authority (ISA) has been established in

1994, under the UNCLOS and the 1994 Implementing Agreement on the

Areas beyond national jurisdiction. Through the authority,

contracting parties to UNCLOS are to organize and control the

exploration and exploitation of “solid, liquid or gaseous mineral

resources in or beneath the seabed” in ABNJ. Among specific

regulations for the exploration and exploitation of resources,

the ISA can designate areas no mining is allowed3. The

International Maritime Organization (IMO) is responsible for

developing rules and regulations concerning maritime safety, the

efficiency of navigation and the prevention and control of marine

pollution from ships (International Convention for the Prevention

of Pollution from Ships, MARPOL 1978) and all other sources

(London Convention, 1972, Protocol1996). The IMO provides the

mechanisms enabling the cooperation among governments which adopt

these minimum standards for their fleets in all waters. In

addition to the globally applicable fleet regulations, IMO

contracting parties can designate areas where particular

regulations apply to protect the marine environment from impacts

arising from navigation and marine pollution, Particular

3 See e.g. Oppenheim’s International Law.

Sensitive Sea Areas (PSSAs), such as the Western Europe Seas, and

MARPOL (1978) “Special Areas”4, such as the Mediterranean

1. ISSUES TO BE CONSIDERED.

The marine environment plays a critical role in the climate and

functioning of the planet. It is estimated to constitute more

than 90 percent of the volume of the biosphere within which

animal and plant life permanently occurs, and is crucial for

human nutrition and development. Some two-thirds of the world’s

oceans are beyond national jurisdiction. At the World Summit on

Sustainable Development (WSSD), the Convention on Biological

Diversity (CBD) and at other United Nations conventions,

commitments have been entered into on biodiversity and protected

areas that embrace biodiversity in areas beyond national

jurisdiction (ABNJ).

But marine resources in ABNJ are under increasing pressure from

human impacts putting at risk biodiversity, ecosystem processes

and function. This along with new approaches and the need to meet

international commitments has led to a heightened focus on

whether current arrangements and policies are adequate in the

management of activities in ABNJ, raising questions about the

need for improved governance in protecting biodiversity. This

paper explores the Biodiversity Implementation Agreement under

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

4 Churchill and Lowe, Law of the Sea, Chapter 17.

ABNJ are little visited by policy makers5, the media, politicians

or the general public. Such areas are remotely the virtue of

their distance from land and by their nature largely out of

sight. It is necessary to raise awareness, to alter attitudes and

to guide decision-makers to invest in achieving conservation and

sustainable use objectives for ABNJ.

Thus, it is highly imperative that certain issues have to be

addressed and those issues which have addressed include:-

What is the legal basis of the establishment of MPA? Does

International Law impose fetters on the establishment of

MPA?

Do establishment of MPA violate the sanctity of customary

principle of ‘freedom of seas’ in International law?

What are the Governance challenges faced by the

International law in the ABNJ?

Can the freedom of High seas mean potential for abuse?

2. WHAT ARE ‘MARINE PROTECTED AREAS’?

To understand the range of views developing in the international

marine conservation community, we must begin with an examination

of differing perceptions of MPAs at the most basic level. The

term marine protected area arose out of a historic quilt of

meanings that was formed as protected areas began to spring up in

coastal and marine areas around the world, each with its own5 1999 decision of the International tribunal for the Law of Sea in M/v Saiga, 120 ILR, pp.143.

label and implications. “MPAs are variously defined as purely in-water

designations, as coastal management units that include terrestrial and marine

areas, as strictly protected reserves, or as any kind of marine managed area”6.

The most commonly used definition of MPA internationally is that

provided by IUCN, ‘any area of inter-tidal or sub-tidal 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’7. This generic description has metamorphosed

somewhat in subsequent discussions and treaty negotiations. For

example, background documents for the Convention on Biological

Diversity state that ‘MPAs are coastal or oceanic management

areas designed to conserve ecosystems together with their

functions and resources’8. In the United States, MPAs have been

defined as ‘any area of the marine environment that has been

reserved by Federal, State, territorial, tribal, or local laws or

regulations to provide lasting protection for part or all of the

natural or cultural resources therein’ (US Presidential Executive

Order 13158, 26 May, 2000). Eichbaum defines marine and coastal

protected areas as ‘areas of the coastal zone or Open Ocean (or

both) that are the target of management for the broad purpose of

conservation and sustainable use’. As a result of the diverse

definitions and objectives for MPAs, a profusion of specific

6 (Agardy, 1997); Brown, international Law of the Sea, vol I, Chapter 14.7 Kelleher and Kenchington, 1992; Gulf of Maine, ICJ Reports, 1984, pp.246, 342.8 De Fontaubert et al., 1996 ; Barbados Vs Trinidad and Tobago, Award of April2006, paras 228 and 241.

terms to describe various sorts of MPAs have been adopted,

including marine park, marine reserve, fisheries reserve, closed

area, marine sanctuary, MACPAs/MCPAs (marine and coastal

protected areas), nature reserve, ecological reserve,

replenishment reserve, marine management area, coastal preserve,

area of conservation concern, sensitive sea area, biosphere

reserve, ‘no-take area’, coastal park, national marine park,

marine conservation area and marine wilderness area.

Semantic confusion naturally arises when similar specialized

terms are applied to management regimes with different objectives

and temporal–spatial scales. For instance, the term ‘sanctuary’

as used in the US context is a multiple use MPA that is

designated under the jurisdiction of NOAA’s National Marine

Sanctuary Programme, as per example the Florida Keys National

Marine Sanctuary. However, ‘sanctuary’ takes on a different

meaning elsewhere in the world. In Great Britain the term has

been used in several occasions to refer to strictly protected

marine reserves in which extractive use is prohibited. Given the

literal definition of the word ‘sanctuary’ (A reserved area in

which animals or birds are protected from hunting or molestation.

This is also the sense in which it is used by the International

Whaling Commission (ICRW, 1946). In much of the developing world,

the use of the word nature sanctuary (both terrestrial and

marine) is becoming problematic as people rebel against what they

view as elitist or exclusionary protected areas that provide safe

havens for nature and tourists who can buy access, but at the

same time provide no benefits to local residents.

3. THE LEGAL BASIS FOR MPAs ON THE HIGH

a) CUSTOMARY INTERNATIONAL LAW

From an international law perspective, the regime of MPAs depends

on the degree of powers that the interested States can exercise

over the marine spaces where they are established. On land, the

State to which the territory belongs where a specially protected

area is located is entitled to exercise full sovereign powers on

it. The situation is different in the sea, as the content of

coastal State's rights with respect to those of third States

varies in relation to the legal condition of the waters in

question.

Even in the territorial sea, a space where the coastal State is

granted sovereignty, the ships of all other States enjoy the right

of innocent passage. In the exclusive economic zone, where the

coastal State has jurisdiction with regard to the protection and

preservation of the marine environment, third States enjoy freedom

of navigation, over flight, laying of submarine cables and

pipelines and other internationally lawful uses of the sea. This

is something more than a mere right of passage and, according to

the position of some countries, goes as far as to include a right

to engage in military manoeuvres in the exclusive economic zones

of the others.

On the high seas there is no coastal State by definition. While

all States are under a general obligation to cooperate for the

protection and preservation of the marine environment, no State

can impose its own legislation on the others. No State can, for

instance, unilaterally establish an MPA and claim that ships

flying a foreign flag abide by the relevant provisions. In short,

the further an MSPA is located away from the coast the more

questions of international law of the sea come into consideration

and the need for international cooperation and agreement

increases.

It would however be a mistake to think that customary

international law, and in particular the traditional principle of

freedom of the sea, are insurmountable obstacles against the

establishment and sound management of MPAs on the high seas. There

are two main reasons:

First, all States are under a general obligation, arising from

customary international law and restated in Art. 192 of the

UNCLOS: "To protect and preserve the marine environment". This

obligation applies everywhere in the sea, including the high seas.

Under another customary obligation, reflected in Art. 194, Para.

5, of the UNCLOS, the measures taken to protect and preserve the

marine environment "shall include those necessary to protect and

preserve rare or fragile ecosystems as well as the habitat of

depleted, threatened or endangered species and other forms of

marine life". Also this obligation has a general scope of

application. It covers any kind of vulnerable marine ecosystems

and species, wherever they are located. States are also bound by

an obligation to cooperate for both the protection of the marine

environment (as confirmed by Art. 197 of the UNCLOS) and the

conservation and the management of high seas living resources (as

confirmed by Arts. 117 and 118 of the UNCLOS). The concept of an

obligation to cooperate, which is typical of the high seas where

no national jurisdiction can be established, is not devoid of

legal meaning. It implies a duty to act in good faith in entering

into negotiations with a view to arriving at an agreement and in

taking into account the positions of the other interested States.

As remarked by the International Court of Justice in the judgments

of 20 February 1969 on the North Sea Continental Shelf cases,

“States are under an obligation so to conduct themselves that the negotiations are

meaningful, which will not be the case when either of them insists upon its own

position without contemplating any modification of it"9. According to the

order rendered on 3 December 2001 by the International Tribunal

for the Law of the Sea in the MOX Plant case10, "the duty to cooperate is

a fundamental principle in the prevention of pollution of the marine environment

under Part XII of the Convention and general international law"11.

It can thus be concluded that acting in good faith in discussions

and negotiations on how to address the threats and risks to

9     I.C.J., Reports of Judgments, Advisory Opinions and Orders, 1969, Para. 85of the judgment.

10 MOX Plant case (Ireland vs. United Kingdom) 126 ILR 310.11 Para. 82 of the order. Part XII of UNCLOS deals with "protection andpreservation of the marine environment".

vulnerable marine ecosystems and biodiversity beyond national

jurisdiction is the content of a true legal obligation incumbent

upon all States12.

Second, any principle, including the apparently sacrosanct

principle of freedom of the sea, is to be understood in relation

to the evolution of legal systems and in the light of the peculiar

circumstances under which it should apply. The principle of

freedom of the sea was developed by the Dutch scholar Hugo Grotius

at the beginning of the XVII century13. At that time, the stake was

the right to occupy the newly discovered territories in Asia and

the Americas. When they engaged in their learned elaborations,

neither Grotius and his followers nor their opponents who pleaded

for the sovereignty of the sea14 had in mind the questions posed by

supertankers, ships carrying hazardous substances, off-shore

drilling, mining for polymetallic nodules, fishing with driftnets

and many other activities and means which can today harm the

marine environment. This obvious remark leads to an equally

obvious consequence. We cannot today use the same concepts that

Grotius used four centuries ago and give them the same

intellectual and legal strength that Grotius gave them.

12  Including the State which believes that "creating MPAs in the high seascontradicts UNCLOS" (supra, Para. 2).

13 GROTIUS, Mare liberum sive de jure, quod Batavis competit ad Indicana commercia dissertatio,1609. At that time, freedom of navigation through the oceans was put inquestion by the claims of Portugal and Spain which dated back to the papal bullInter caetera of 1493 and the Treaty signed by Portugal and Spain inTordesillas on 7 June 1494.

14

Today also the concept of freedom of the sea is to be understood

in the context of the present range of marine activities and in

relation to all the potentially conflicting uses and interests

taking place in marine spaces. The needs of navigation and the

other internationally lawful uses of the sea are still important

elements to be taken into consideration. But they have to be

balanced with other interests, in particular those which have a

collective character, as they belong to the international

community as a whole, such as the protection of the marine

environment and the sound exploitation of marine living resources

beyond the limits of national jurisdiction. Today it cannot be

sustained that a State has a right to engage in a specific marine

activity simply because it enjoys freedom of the sea, without

being ready to consider the different views, if any, of the other

interested States and to enter into negotiations to settle the

conflicting interests.

The trend towards the weakening of the traditional (but also

outdated if absolutely understood) principle of freedom of the sea

is supported by several instances in the present evolutionary

stage of international law of the sea. To give only one example,

encroachments on the freedom of the high seas can be easily found

in the Agreement for the Implementation of the Provisions of the

United Nations Convention of the Law of the Sea of 10 December

1982, Relating to the Conservation and Management of Straddling

Fish Stocks and Highly Migratory Fish Stocks (New York, 1995).

This treaty has many merits. It provides, inter alia, that all

States having a real interest in high seas fisheries have the

right to become members of a sub regional or regional fisheries

management organization or participants in such an arrangement

(Art. 8, Para. 3). But only those States which are members of such

an organization or participants in such an arrangement, or which

agree to apply the conservation and management measures

established by such an organization or arrangement, have access to

the fishery resources of the high seas to which those measures

apply (Art. 8, Para. 4). The idea underlying this kind of

provisions is that the high seas are no longer the province of

laissez-faire, governed by a practically indiscriminate regime of

freedom. Instead, also the high seas is an area where the concept

of sustainable development applies, which can lead to the

exclusion of those States which undermine the conservation and

management measures agreed upon by the others. In this regard, the

1995 Agreement brings an evident "encroachment15" on the

traditional principle of freedom of the high seas. But this was

considered a necessary tool to promote the conservation and sound

management of living marine resources and, as such, was found

reasonable and acceptable by the great majority of States.

b) TREATY LAW

15 Cameroon Vs Nigeria, ICJ reports, 2002, pp 303

i) GLOBAL INSTRUMENTS

The importance of MPAs, as a means for the protection of the

marine environment, is confirmed by the multilateral treaties

which, besides the already mentioned UNCLOS16, encourage the

parties to create such zones. Such treaties have either a global

or a regional sphere of application. A few examples are hereunder

given.

Under the Convention for the Regulation of Whaling (Washington,

1946), the International Whaling Commission (IWC) may adopt

regulations with respect to the conservation and utilization of

whale resources, fixing, inter alia, "open and closed waters,

including the designation of sanctuary areas" (Art. V, Para.

1). Sanctuaries where commercial whaling is prohibited were

established by the IWC in the Indian Ocean (1979) and the

Southern Ocean (1994). They comprise extremely large extents of

high seas waters, where commercial whaling is prohibited17.

The International Convention for the Prevention of Pollution

from Ships, called MARPOL (London, 1973, as amended in 1978)

provides for the establishment of special areas where

particularly strict standards are applied to discharges from

ships. Special areas provisions are contained in Annexes I

(Regulations for the Prevention of Pollution by Oil), II

(Regulations for the Control of Pollution by Noxious Substances

16 Supra, para. 3 A.

17 It is however regrettable that the prohibition is limited to commercialwhaling and does not cover the so-called scientific whaling.

in Bulk) and V (Regulations for the Prevention of Pollution by

Garbage from Ships) to the MARPOL18. Special areas, which are

listed in the relevant annexes, may include also the high seas.

For example, the whole Mediterranean Sea area is a special area

for the purposes of Annexes I and V.

A set of Guidelines for the Identification of Particularly

Sensitive Sea Areas (PSSAs) were adopted on 6 November 1991 by

the Assembly of IMO (International Maritime Org

4.1 WHAT ARE ‘PSSA’s?

A PSSA is defined "as an area that needs special protection through action by

IMO because of its significance for recognized ecological or socio-economic or

scientific reasons and which may be vulnerable to damage by international

maritime activities"19. Such areas can by identified by the Marine

Environment Protection Committee of IMO on proposal by one or more

member States and under a procedure which takes place at the

multilateral level. PSSAs can apparently be located in any marine

spaces, irrespective of their legal condition, including the high

seas. However, the specific measures applying to PSSAs, such as

ships' routing measures, discharge restrictions, operational

criteria, must fall within the field of specific competence of IMO18For example, under Regulation 1, Para. 10, of Annex I, "Special area means asea area where for recognized technical reasons in relation to itsoceanographical and ecological condition and to the particular character of itstraffic the adoption of special mandatory methods for the prevention of seapollution by oil is required".

19 “Safer Seas, Cleaner Seas”: Lord Donaldson’s Inquiry, UK Government’s Response and International Law, 44 ICLQ, 1995, p.339

(shipping and prevention of pollution from ships) and cannot be

extended to other fields (for example, fishing or mining). Annex V

to the Protocol on Environmental Protection to the Antarctic

Treaty (Madrid, 1991) provides for the designation of Antarctic

Specially Protected Areas or Antarctic Specially Managed Areas.

Such areas can be established in the "Antarctic Treaty Area",

which includes waters having the legal condition of high seas.

The United Nations Convention on Biological Diversity (Rio de

Janeiro, 1992; CBD) provides that the parties shall "establish a

system of protected areas or areas where special measures need

to be taken to conserve biological diversity" (Art. 8, a)20. The

CBD applies also to the marine environment, irrespective of the

legal condition of the waters and seabed concerned21. In 2003,

the CBD's Subsidiary Body for Scientific, Technical and

Technological Advice (SBSTTA) recommended acceptance of the goal

of representative networks of marine and coastal protected areas

and development of a strategy to meet the target date of 2012.

However, with the important exception of the CBD, the scope of

MPAs established under the above mentioned treaties or instruments

20 "Biological diversity" is defined as "the variability among living organismsfrom all sources including, inter alia, terrestrial, marine and other aquaticecosystems and the ecological complexes of which they are part; this includesdiversity within species, between species and of ecosystems" (Art. 2).

21 Under Art. 22, Para. 2, of the CBD, "Contracting Parties shall implement thisConvention with respect to the marine environment consistently with the rightsand obligations of States under the law of the sea".

is limited to the specific purposes of each individual treaty or

instrument. It does not encompass the broader concept of

protection of vulnerable marine areas per se that should

characterize a network of MPAs as such.

ii) REGIONAL INSTRUMENTS

Other treaties are especially devoted to the establishment of MPAs

in certain regional seas. Some of these regional instruments apply

within the areas falling under the national jurisdiction of the

parties that is within the limits of the exclusive economic zone

or the continental shelf. This is, for instance, the case of the

Protocol Concerning Protected Areas and Wild Fauna and Flora in

the Eastern African Region (Nairobi, 1985)22, the Protocol for the

Conservation and Management of Protected Marine and Coastal Areas

of the South-East Pacific23, the Protocol Concerning Specially

Protected Areas and Wildlife in the Wider Caribbean Region24.

Other regional treaties apply also to the high seas. For instance,

in 1998 a new Annex V concerning the Protection and Conservation

of the Ecosystems and Biological Diversity of the Maritime Area

22 The Protocol was concluded within the framework of the Convention for theProtection, Management and Development of the Marine and Coastal Environment ofthe Eastern African Region (Nairobi, 1985).

23 The Protocol was concluded within the framework of the Convention for theProtection of the Marine Environment and Coastal Area of the South-East Pacific(Lima, 1981).

2420 The Protocol was concluded within the framework of the Convention for theProtection and Development of the Marine Environment of the Wider CaribbeanRegion (Cartagena de Indias, 1983).

was added to the Convention for the Protection of the Marine

Environment of the North East Atlantic (Paris, 1992; so called

OSPAR Convention). The maritime areas falling under the scope of

the OSPAR Convention, which are defined as those parts of the

Atlantic Ocean which lie north of the 36 north latitude and

between 42 west longitude and 51 east longitude, include also

high seas waters. The Parties to Annex V commit themselves to take

the necessary measures to protect and conserve the ecosystems and

the biological diversity of the maritime area and to restore, when

practicable, marine areas which have been adversely affected.

4. FREEDOM OF HIGH SEAS: PRONE TO ABUSE?

Under UNCLOS, the high seas are open to all States and certain

‘freedoms’ include inter alia navigation, over flight, fishing

and MSR. The freedoms are to be exercised under the conditions

provided for in UNCLOS and other rules of international law with

due regard for the interests of other States and with respect to

activities in the Area.

The freedoms are not absolute as they are conditioned by

obligations to not cause damage to the environment of other

States arising from customary international law and the general

obligations under UNCLOS to protect and preserve the marine

environment; to conserve high seas living resources; to prevent,

reduce and control pollution of the marine environment; and to

fulfill their duties to cooperate with other States. If States

adopt measures that are inadequate to ensure the conservation and

sustainable use of marine biodiversity and if they do not

cooperate with other States, they are not exercising high seas

freedoms with due regard for other States interests or for their

obligations. For the high seas freedoms of MSR, submarine cable

and pipeline laying, and the construction of artificial

installations, it is only the general obligations of UNCLOS to

protect and preserve the marine environment, and the general

restrictions in Articles 87 and 88 that applies. There are no

internationally agreed standards to regulate their operation or

potential environmental impact, and Article 206 requirements for

assessing potential effects of activities are rarely implemented.

Exercise of high seas freedoms is also constrained by the rights

of other States to utilize the high seas and exploit resources.

Qualifications have also been made by subsequent agreements,

especially in sectoral instruments which deal with specific

issues such as the conservation and management of highly

migratory and straddling fish stocks in UNFSA25 and other

fisheries agreements, and IMO instruments relating to shipping.

Such qualifications have tended to be achieved where high seas

activities have impacts on other States rather than being based

solely on conservation objectives. One of the main drivers of the

25 United Nations Fish Stocks Agreement: 59/25, November 2004.

UNFSA process was that distant water fishing activities directly

conflicted with interests of coastal and other fishing States.

5. RELIANCE ON ‘FLAG STATE’ JURISDICTION FOR ENFORCEMENT

In the case of US Vs Dominguez26, it was held that under UNCLOS

‘flag States’ have primary responsibility for enforcement of

international rules and exclusive jurisdiction over vessels

flying their flag. Those States that do not exert effective

control over ships flying their flag in accordance with UNCLOS

are often referred to as ‘flag of convenience or ‘flag of non-

compliance’ States. Some fishing vessels continue to change their

flag State confirming that the use of ‘flags of convenience’

continues. An enforcement regime that relies on flag States can

be ineffective when the interests of States conflicts with

conservation and sustainable use objectives, where there is lack

of political will, or when States have limited capacity or

resources to manage the actions of their vessels or nationals. At

the 6th meeting of the United Nations Open-ended Informal

Consultative Process on Oceans and the Law of the Sea (UNICPOLOS)

it was recognized that the ‘lack of effective implementation and enforcement

of flag State responsibilities is still a critical shortcoming in the effectiveness of

overall oceans governance. Under UNFSA, flag States have

responsibility to ensure that their vessels comply with regional26 604 F.2d 304(1979)

conservation measures agreed by RFMOs, and provision is made for

monitoring, compliance and enforcement. In addition a Contracting

Party which is not a member of a RFMO/A is not discharged from

the obligation to cooperate with the conservation measures

established by the RFMO/A. In addition to its provisions for non

access to non-cooperating States Parties, the UNFSA regime is

significant in that it provides for actions by member States and

port States to enforce obligations on vessels of other flag

States; as held in the case of Athens Maritime Enterprises Corporation

Vs Hellenic Mutual War risks Association27. Nevertheless, States have seen

the need to further develop the role of port States in

monitoring, control and enforcement. The 1993 Food and

Agriculture Organization of the United Nations (FAO) Agreement to

Promote Compliance with International Conservation and Management

Measures by Fishing Vessels on the High seas (Compliance

Agreement) is intended to address Flag State responsibility and

outlines provisions in relation to non-parties. These include the

obligation on Parties to encourage non-parties to adopt laws and

regulations consistent with the Agreement; to cooperate

consistent with international law to ensure that non parties do

not engage in activities that undermine the effectiveness of

conservation and management measures; and to exchange information

regarding non-party vessels. Ratification of the Agreement has

been limited.

6. DIFFICULTIES WITH THE ENFORCEMENT OF PROVISIONS IN ABNJ.

27 1983, All ER 590

ABNJ are remote which makes enforcement of activities

logistically difficult and expensive for a State to manage

activities of its nationals operating in an area (often) well

outside its national jurisdiction. As described in the previous

section, due to reliance of the compliance and enforcement regime

on flag State jurisdiction, where legal measures do exist, lack

of political will or a lack of adequate capacity to monitor and

control the activities of flag vessels also compromises the

effectiveness of enforcement in ABNJ. In addition for coastal

States enforcement activities in their own off shore zones will

take priority over high seas enforcement activities particularly

if they have limited resources and capacity for off shore

enforcement activities.

7. CONCLUSION

There are internationally agreed measures that seek to mitigate

at least some of the impacts of activities such as shipping,

fisheries and dumping. Other activities have not yet been

addressed at the global level or the detail of the legal regime

is insufficient. Apart from the general obligations under UNCLOS

to protect and preserve the marine environment and the general

obligations relating to the high seas and the Area, the

mitigation and regulation of potential threats in ABNJ from

activities such as the use of submarine cables and pipelines,

bio- prospecting and MSR have not yet been resolved by the

international community. In addition some potential activities in

the oceans to mitigate climate change were not recognised when

UNCLOS was initially drafted. It is likely that further

activities to exploit or utilise marine resources ABNJ will be

proposed in the future. There is a need for improved

implementation of, and better coordination between, current legal

instruments applicable to ABNJ. Additionally, there are gaps and

shortcomings in the current legal framework and in the

institutional governance structures, especially in relation to

the consideration and assessment of measures to conserve marine

biological diversity to fully reflect the evolving understanding

of ecosystem based approaches. There would appear to be no global

instrument or organisation that is competent to consider

effectively the range of threats impacting on biodiversity

conservation in ABNJ in a global and cross-sectoral manner. And

there would appear to be no governance structure in place to

facilitate co-operation and coordination of activities across

ABNJ. In the light of this, it is worth considering the utility

of an additional, complementary instrument, such as an

Implementation Agreement to fill these needs. Thus, the measures

should include:

– There are a range of interested bodies and fora with varying

responsibilities for biodiversity in ABNJ with the legal

framework established by UNCLOS;

– There is a need for improved implementation of, and better

coordination between, current legal instruments applicable to

ABNJ;

– There are gaps and shortcomings in the current legal

framework and governance structures with acute gaps being the

lack of assessment and implementation of conservation measures

to fully reflect the evolving understanding of the ecosystem

approach and the precautionary approach;

– An Implementation Agreement could help address these

problems by providing a mechanism to: i) augment, elaborate,

and make operational general provisions of UNCLOS in relation

to ABNJ, ii) improve cooperation amongst existing

institutions, and iii) co-ordination based governance for the

conservation and sustainable use of resources and biodiversity

in these areas.