Transcript From Law of the Sea to Ocean Governance

From Law of the Sea to Ocean Governance:
UNCED, WSSD, Rio + 20 and Beyond
Professor David VanderZwaag
Canada Research Chair in
Ocean Law and Governance
Marine & Environmental Law Institute,
Dalhousie University
Shanghai Jiao Tong University
November 2011
Introduction
• The 1982 Law of the Sea Convention (LOSC), often refered to as
the “Constitution of the Oceans”, provides the overall international
framework for coastal/ocean management
+ Clarifies the rights of coastal States and other States to ocean areas and uses,
e.g.
– Coastal State sovereignty over internal waters and the territorial sea
– Coastal State sovereign rights over the EEZ and continental shelf
– Rights of all States to innocent passage through territorial seas, transit
passage through straits used for international navigation, and freedoms of
the high seas (such as navigation and fishing)
+ Sets out numerous State responsibilities, such as
– Obligation to protect and preserve the marine environment (Art. 192)
– Obligation to take all measures necessary to ensure that activities under the
State’s jurisdiction or control do not cause damage by pollution to other
States (Art. 194(2))
– Responsibility to take measures 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 (Art. 194(5))
– Numerous international cooperation responsibilities including to
develop conservation measures for transboundary fish stocks in EEZs,
(Art. 63(1)), stocks straddling EEZs and the high seas (Art. 63(2)) and
fish stocks shared on the high seas (Art. 118)
+ Established three new institutions
– Commission on the Limits of the Continental Shelf
– International Tribunal for the Law of the Sea
– International Seabed Authority
• Since LOSC was concluded, the world of coastal/ocean management has
become much more complex and complicated with the term “ocean
governance” capturing many of the key trends
+ Shifting from top-down, bureaucratic rule by governments towards more
participatory decision-making involving various non-government actors,
including the private sector, scientists, NGOs, academics, community groups,
and others
+ Moving from command-control emphasis to cooperative approaches, e.g.
voluntary programs, integrated planning, co-management
+ Increasing reliance on soft law instruments
+ Expanding roles of non-legal disciplines such as ethics, sociology, ecology,
economics and engineering in public policy formation
+ Growing skepticism towards the primacy of science and expert opinions in
reaching decisions
+ Increasing “legitimacy” burden on decision-makers in light of competing
social interests (such as full employment and a clean environment) and
social values towards nature (commodity vs. place to be preserved or
conserved)
+ Shifting focus from law of the sea jurisdictional entitlements to principled
governance of human uses
Maritime Zones
(Schofield, 2003: 18)
• This presentation explores the evolution of ocean governance discussions and
developments in the wake of LOSC from five perspectives
1.
+
+
Quick look at two Earth Summits and their roles in promoting strengthened ocean
governance
UN Conference on Environment and Development (1992) UNCED
World Summit on Sustainable Development (2002) WSSD
2.
Highlight the key roles of UN processes and resolutions
in addressing ocean governance issues and gaps
3.
Summarize one of the key challenges in achieving “principled ocean governance”,
namely, getting a grip on the slippery nature of key sustainability principles
(multiple interpretations)
4.
Review of the exponential growth of meetings and decisions relevant to oceans
under various multilateral environmental agreements
5.
+
+
Provide an overview of the preparations for Rio + 20
Multiple assessments on progress in meeting ocean governance
commitments
Many proposals on best ways forward
•
Like to conclude by opening discussion in this room
+
What do people here think about “the blue yonder”?
+
What are the most pressing national, regional and global issues needing to
be addressed?
+
If you were asked to suggest a major strengthening to the global ocean
governance framework, what would it be?
1.
Quick look at the two Earth Summits and their roles in promoting strengthened
ocean governance
•
United Nations Conference on Environment and Development (UNCED)
Held in Rio De Janeiro, Brazil in 1992, UNCED produced two legally-binding
agreements and two soft law documents especially relevant to oceans
+
Legally-binding agreements
– UN Framework Convention on Climate Change
* Industrialized countries agreed to aim at stabalizing greenhouse gas
emissions at 1990 levels by 2000
* Parties agreed to establish secretariat and to keep reviewing scientific,
technological and management dimensions of climate change through
Conferences of the Parties
– Biodiversity Convention
Parties agree to:
* Establish a system of protected areas (which should
include marine areas) (Art. 8(a))
* Develop legislation / regulations for the protection of threatened
species (Art. 8(k))
* Preserve practices of indigenous and local communities embodying
traditional lifestyles (Art. 8(j))
* Require national EIA processes to consider impacts of proposed
projects on biological diversity (Art. 14(1)(a))
+ Soft law documents
–Agenda 21
* Global action plan for achieving sustainable development
(40 chapters)
* Chapter 17 “Protection of Oceans, All Kinds of Seas,
Including Enclosed and Semi-Enclosed Seas, and Coastal
Areas and the Protection, Rational Use and Development
of Their Living Resources”
* Chapter 17 on oceans / coasts set out seven program areas (calls for action)
(i) Integrated coastal / maritime area management, e.g.
† Each coastal State should consider establishing or strengthening
coordinating mechanisms for integrated coastal / marine management
at both the local and national levels involving all interested groups
(para. 17.6)
† Coastal States urged to develop and maintain databases for
managing coastal / marine areas, e.g. marine uses, resource potentials,
critical habitat areas (para. 17.8)
(ii) Marine environmental protection
> UNEP invited to convene, as soon as practicable, an
intergovernmental meeting on protection of the marine environment
from land-based activities (para. 17.26)
> States encouraged to further control sea-based activities, e.g.
† Conclusion of a future strategy for the London Dumping
Convention (para. 17.30(b))
† Reduction of water pollution from organotin compounds used
in anti-fouling
(iii) Conservation of high seas marine living resources, e.g.
> States urged to convene, as soon as possible, an intergovernmental
conference on straddling fish stocks and highly migratory fish stocks
(para. 17.50)
(iv) Conservation of marine living resources under national jurisdiction,
e.g.
> Coastal States should develop inventories of marine living
resources (para. 17.79(a))
> Coastal States should strengthen their legal / regulatory frameworks
including enforcement / surveillance capabilities (para. 17.79(d))
> Coastal States should recognize the rights of indigenous people and
local communities to fisheries (para. 17.82(1))
(v) Addressing uncertainties in managing the marine environment and
climate change, e.g.
> Need to bolster scientific research particularly in the areas of climate
change and sea level rise and effects of ozone depletion on the marine
environment (paras. 17.97 – 17.99)
(vi) Strengthening international cooperation / coordination, e.g.
> General Assembly urged to provide for regular consideration within
the UN of marine and coastal issues (para. 17.18)
> A catalyst for establishing the UN Open-ended Informal
Consultative Process on Oceans and the Law of the Sea (established
by G.A. Resolution 54/33 of November 24, 1999)
(vii) Sustainable development of Small Island States, e.g.
> SIDS urged to develop and implement sustainable development
plans (para. 17.129(e)(f))
> SIDS encouraged to design / implement response strategies to
climate change impacts (para. 17.129(g))
> Global and regional conferences on sustainable development of
SIDS called for (para. 17.131)
† Led to Barbados Programme of Action on the Sustainable
Development of Small Island Developing States (1994)
† A comprehensive review of the Programme occurred in 2005 in
Mauritius which resulted in the Mauritius Strategy for the Further
Implementation of the Programme of Action for the Sustainable
Development of SIDs
* Agenda 21’s other chapters may also be relevant for oceans, e.g.
Chapter 38 on International Institutional Arrangements
> Called upon the General Assembly to establish the Commission
on Sustainable Development (CSD) to monitor progress in
follow-up of UNCED commitments
– Rio Declaration on Environment and Development
* Sets out 27 principles, guideposts for reaching sustainable development
* Key principles especially relevant to national ocean law and policy reforms
include:
> Precaution (Principle 15)
> Public Participation (Principle 10)
> Community-Based Management (Principle 22)
> Polluter Pays (Principle 16)
> Intergenerational Equity (Principle 3)
> Integration (Principle 4)
> Environmental Impact Assessment (Principle 17)
• World Summit on Sustainable Development (WSSD)
+ Johannesburg Plan of Implementation (adopted 4 September
2002) not a huge “wave-maker” regarding oceans
– Government leaders reaffirm commitments to Rio principles and full
implementation of Agenda 21
– Only 7 paragraphs (30-36) dedicated to ocean / coastal issues with quite
general commitments, e.g.
* Establish an effective, transparent and regular inter-agency coordination
mechanism on ocean / coastal issues within the UN system
* Encourage the application by 2010 of the ecosystem approach
* Strengthen cooperation / coordination among regional environmental and
fisheries organizations
* Maintain or restore fish stocks to levels that can produce the maximum
sustainable yield with the goal to be achieved for depleted stocks on an
urgent basis and where possible not later than 2015
* Support the sustainable development of aquaculture
* Implement the work programme from the Jakarta Mandate on the
Conservation and Sustainable Use of Marine and Coastal Biological
Diversity through urgent mobilization of financial resources and
technological assistance
* Establish representative networks of marine protected areas by 2012
* Make every effort to achieve substantial progress in protecting the marine
environment from land-based activities by the next GPA Conference in 2006
* Accelerate the development of measures to address invasive alien species
in ballast water
* Establish by 2004 a regular state of the marine environment reporting
process under the UN including socio-economic aspects
2. Highlight the key roles of UN processes and resolutions in addressing ocean
governance issues and gaps
• UN Processes
+ UN Open-ended Informal Consultative Process on Oceans and Law of the Sea
(UNICPOLOS or ICP)
– The ICP, first established pursuant to a General Assembly resolution in
November 1999, with a three-year mandate, has been renewed through
subsequent resolutions for additional three year periods
– The ICP might best be described as a “discussion and learning” forum
– The UN Secretary-General provides annual reports on Oceans and law of the sea
that inform ICP discussions
– Sessions have invited leading scientific and policy experts to share their views
on topics selected by UN member States
– Following expert panel presentations, States,
NGOs and other organizations have been
invited to ask questions and articulate
viewpoints
– Reports of the ICP are submitted to the General Assembly and then circulated
under the agenda item, “Oceans and law of the sea”
– Central topics for ICP discussion have varied considerably over the 12 ICP
sessions to date
* ICP-1 (2000) – Fisheries and marine environmental protection two main
themes
* ICP-2 (2001) – Marine science and transfer of marine technology, and
cooperation in combating piracy and armed robbery at sea
* ICP-3 (2002) – Two organizing themes, protection and preservation of the
marine environment and cross-cutting issues of capacity-building, regional
cooperation and ocean management
* ICP-4 (2003) – Protecting vulnerable marine ecosystems and the safety of
navigation
* ICP-5 (2004) – Conservation and management of biological diversity of the
seabed in areas beyond national jurisdiction
* ICP-6 (2005) – Marine debris and fisheries and their contribution to
sustainable development
ICP-7 (2006) – Ecosystem approaches and oceans
ICM-8 (2007) – Marine genetic resources
ICP-9 (2008) – Maritime security and safety
ICP-10 (2009) – Review of the ICP’s achievements and shortcomings in its
first nine meetings
* ICP-11 (2010) – Capacity-building in ocean affairs and law of the sea,
including marine science
* ICP-12 (2011) – Contributing to the assessment in the context of Rio+20, of
progress to date and remaining gaps in the implementation of outcomes of
the major summits on sustainable development and addressing new and
emerging challenges
* ICP-13 (2012) – Will focus on marine renewable energies
*
*
*
*
– ICP has served as a feeder of ideas and recommendations to
the UN General Assembly for further endorsement and
expansion through resolutions, e.g.
* ICP-6 in 2005 encouraged RFMOs to initiate performance reviews and to
protect vulnerable marine ecosystems as a matter of urgency
* UNGA Res. 61/105 of December 2006 urged RFMO/As to undertake
performance reviews with some element of independent evaluation (para.
73) and called on RFMO/As to protect VMEs from bottom fishing activities
(para. 83)
– At its 7th session in 2006, the ICP contributed to further fleshing out the
core elements of an ecosystem approach with the meeting agreeing on main
thrusts of the EA, such as
* Emphasizing conservation of ecosystem structures and their functioning
in order to maintain ecosystem goods and services
* Ensuring stakeholders and communities participate in planning and
management
* Using best available knowledge (traditional, indigenous and scientific)
* Applying the precautionary approach
* Assessing the cumulative impacts of multiple human uses
* Taking into account ecological, social, cultural, economic, legal and
technical perspectives
* Seeking to minimize adverse impacts of human activities on marine
ecosystems and biodiversity, in particular rare and fragile marine
ecosystems
* Using integrated decision-making processes
* Considering factors originating outside the boundaries of the defined
ecosystem management area
– While furthering international thinking in regard to the ecosystem approach,
the ICP still left the fleshing out process at quite a very general level with a
type of “disclaimer” as well. The report concluded that “there is no
necessarily agreed definition of an ecosystem approach, which is interpreted
differently in different contexts …” (para. 6)
• 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 (ABNJ WG)
+ Has held four meetings (2006, 2008, 2010, 2011)
+ Has served as a discussion forum on possible future directions for strengthening
high seas governance with two main issues in controversy
– Whether there is a governance gap in relation to bioprospecting
– Whether an implementing agreement to LOSC should be forged to address
the protection and sustainable use of marine biodiversity beyond national
jurisdiction
+ At June 2011 meeting, the ABNJ WG recommended that the UN General
Assembly continue discussions, through the ABNJ WG and international
workshops, with the next meeting to take place in 2012
• Commission on Sustainable Development (CSD)
+ The CSD, established after UNCED as a discussion forum to facilitate and
monitor implementation of Rio commitments, particularly Agenda 21, has not
been effective overall and certainly not in relation to oceans
+ CSD has only reviewed ocean issues twice in 1994 (4th session) and 1998-1999
(7th session)
+ CSD not scheduled to review ocean development and management issues again
until 2014 (22nd session)
• UN Resolutions
+ It has now become common to have yearly UN resolutions adopted on two
central ocean governance topics
– Oceans and the law of the sea
– Sustainable fisheries
+ Resolutions have largely played “agenda setting” roles
– Initiating processes, meetings and reports to further
discuss and promote strengthenings in coastal/ocean governance, e.g.
* The ICP, ABNJ WG and CSD are all creatures of UN resolutions
* The 2012 UN Conference on Sustainable Development and its basic
objectives and topics have been established pursuant to UN Res. 64/236
(December 2009)
> Objectives include
† Securing renewed political commitment for sustainable
development
† Assessing progress to date and the remaining gaps in the
implementation of the outcomes of the major summits on
sustainable development
† Addressing new and emerging challenges
> Two main themes to be discussed
† A green economy in the context of sustainable development and
poverty eradication
† The institutional framework for sustainable development
* Oceans and law of the sea resolutions have mandated the preparation of
annual Secretary-General reports on issues and developments in ocean
affairs and law of the sea which must include a section addressing the
upcoming topic of the ICP
– Sustainable fisheries resolutions have helped set the agenda for strengthening
fisheries management and protection of marine biodiversity, e.g.
* Continually calling for States and RFMO/As to apply precautionary and
ecosystem approaches to fisheries management
* Urging the enhancement of shark conservation measures, for example,
pursuant to Res. 65/38 December (2010)
> States are urged to urgently adopt measures to further implement the
International Plan of Action for the Conservation and Management of
Sharks (IPOA – Sharks) for both directed and non-directed shark
fisheries by
† Establishing limits on catch or fishing effort
† Requiring their flagged vessels to collect and regularly report data
on shark catches (species specific), disregards and landings
† Undertaking comprehensive shark stock assessments
† Reducing shark by-catch and by-catch mortality
† Not increasing fishing effort in directed shark fisheries where
scientific information is uncertain or inadequate (para. 13)
> States are urged to take immediate and concerted action to improve the
implementation of and compliance with existing RFOM/A and national
regulatory measures for shark fisheries, incidental catch of sharks, and
in particular shark finning prohibitions or restrictions (para. 14)
> States are encouraged to take other measures to
address shark finning, such as requiring all sharks
to be landed with each fin naturally attached
(para. 14)
> RFMO/As with competency to regulate highly migratory species are
urged to strengthen or establish precautionary, science-based
conservation and management measures for sharks (para. 15)
> FAO is requested to prepare a comprehensive report on the
implementation of IPOA – Sharks and on progress in resolution
implementation (para. 16)
* Calling for enhanced regulation of bottom fishing activities on the high seas,
e.g.
> Res. 61/105 (December 2006) calls upon
† RFMO/As with competence to regulate bottom fisheries to adopt
and implement not later than 31 December 2008 measures, such as
~ To close bottom fishing in vulnerable marine ecosystems, including
seamounts, hydrothermal vents and coldwater corals, where they
are known or likely to occur and to ensure such activities do not
proceed unless conservation and management measures have been
established to prevent significant adverse impacts (para. 83(c))
~ To require State members of RFMO/As to require vessels
flying their flag to cease bottom fishing in areas where
VMEs are encountered and to report the encounter (move
on rule) (para. 83(d))
~ To assess whether individual bottom fishing activities
would have significant adverse impacts (SAIs) on VMEs
and if it is assessed that those activities would have SAIs
to ensure preventative management measures or refusal of
authorization (para. 83(a)
† Flag States are urged to adopt the above measures in para. 83
where there is no RFMO/A with competence to regulate
bottom fishing (para. 86)
† The Secretary-General, in cooperation with FAO, was
requested to prepare a report for the 64th Session of the General
Assembly in 2009 on the actions taken by States and
RFMO/As to implement the resolution provisions on bottom
fishing (para. 91)
> Res. 64/72 (December 2009), reviewing the S-G report on the
implementation of Res. 61/105, noted with concern the limited
implementation to date and added further recommendations and
clarifications relating to bottom fishing management on the high
seas, such as,
† Calling upon RFMO/As and flag States
~ To make publicly available assessments of whether individual
bottom fishing activities would have significant adverse
impacts on VMEs and any management measures adopted
(para. 122(b))
~ To conduct further marine scientific research to identify
where VMEs are or likely to occur (para. 119(b))
~ To establish and implement protocols regarding
encounters with VMEs including definitions of what
constitutes evidence of an encounter, in particular
threshold levels and indicator species (para. 119(c))
† Deciding to conduct a further implementation review in
2011 with the Secretary-General requested to publish a
further implementation progress report for the 66th session
of the General Assembly
– Progress in implementing the sustainable fisheries resolutions has been mixed
with “good news” and “bad news”
* Good news
> Noteworthy progress has been made pursuant to UN sustainable
fisheries resolutions in protecting VMEs from bottom fishing activities,
e.g.
† The Commission for the Conservation of Antarctic Marine Living
Resources (CCAMLR) has imposed a limited ban on bottom
trawling in the high seas areas of the CCAMLR Convention Area
(Conservation Measure 22-05, 2008)
† The South East Atlantic Fisheries Organization (SEAFO) has
closed 11 sub-areas known or likely to contain VMEs
† The Northwest Atlantic Fisheries Organization (NAFO) has closed
bottom fishing in 18 areas (6 Seamounts and 11 Coral areas) until
at least 2014 which represents some 14% of the total NAFO
Regulatory Area
Report of the NAFO Performance Review Panel 2011 (page 80).
† New RFMO Conventions have been concluded for the South
Pacific Ocean (2009) and for the North Pacific Ocean (2011)
and, although not yet in force, various interim measures to
protect VMEs have been agreed to such as
~ Freezing the fishing footprint
~ “Move one” rule when VMEs are
encountered
† Many States have used MPAs and specific area closures in
national waters to restrict bottom fishing activities
† Palau has banned all bottom trawling in areas under its national
jurisdiction and by its nationals and vessels anywhere in the
world
> Many RFMOs have undertaken performance reviews and have
modernized their mandates or are in the process of doing so, e.g., for
the Atlantic
† NAFO, NEAFC and ICCAT have all completed performance
reviews
† The North Atlantic Salmon Conservation Organization (NASCO)
has agreed to undertake an independent performance review
* Bad news – various implementation weaknesses stand out, particularly
> Limited nature of VME encounter protocols generally adopted
† High level of threshold levels set to define an encounter
invoking the move on rule
† Limited number of encountered organisms that trigger the move
on rule (corals and sponges)
† Limited move on distance required, 2-5 nautical miles
> Limited VME impact assessment follow throughs, e.g.
† Failure to make assessments publicly available
† Restricting the scope of impact assessment requirements
as exemplified by NAFOs 2010 decision to only require
impact assessments
~ In new fishing areas outside the historically fished
“footprint”
~ Within the footprint if new scientific information comes to
light on the existence of VMEs or if significant changes
occur in fishing conduct or technology
3. Summarize one of the key challenges in achieving “principled ocean
governance”
• Getting a grip on the slippery nature of meanings for key principles (For
example, sustainable development, integration, ecosystem approach)
+ Sustainable development
– World Commission on Environment and Development (1987)
* Popularized the concept of sustainable development
* Famous definition
Development that meets the needs of the present without
compromising the ability of future generations to meet their
own needs (Our Common Future, p. 43)
– 4 major reasons the sustainable development principle is frustrating /
confusing
* “Unknowability of needs of future generations”
* Differing terminologies
> Concept
> Principle
> Objective
> Goal
> Ethic
* Multiple dimensions that need to be
addressed
> Population
> Poverty
> Defense spending
> North – South equity
* Does not clearly resolve conflicts in worldviews
> Transcendent / utilitarian (SD is a “juggling act” among
economic, social and environmental factors)
> Immanent / ecocentric (SD means meeting social and
economic needs must not significantly alter ecological
integrity)
+ Integration
Confusing because of multiple meanings (at least nine):
– Environment – economy integration (ensuring proposed development
policies and activities incorporate environmental and social
considerations)
– Integrated pollution control (reducing fragmentation in pollution control
where air, water and land emissions may be separately regulated)
– Horizontal integration (coordinating the policy & planning efforts of sectoral
government agencies, e.g., agriculture, fisheries, forestry, tourism,
transportation, communications, energy, defense, environment)
– Vertical integration (enhancing cooperation among levels of government,
national, provincial/state, local)
– Multi-disciplinary integration (promoting the use of natural and social
science information and insights in decision-making)
–Integrated culturing (supporting ecological engineering where production
systems are integrated with ecosystem functions)
– Integrated surveillance, compliance and enforcement (coordinating
environmental, natural resource and security surveillance / enforcement)
– Integrated coastal/ocean area management (managing multiple land and sea
uses in the coastal zone and offshore)
– International integration (incorporating international responsibilities and
obligations into domestic law and policies)
+ Ecosystem Approach
Also has “slippery” aspects
– Terminology
* Ecosystem approach vs. Ecosystem-based management
* Are the terms interchangeable?
> Some authors think so
> FAO has preferred ecosystem approach for couple of reasons
† Consistency with precautionary approach
† Concern over giving environmental considerations preeminence over socio-economic and cultural interests
– Multiple fora developing guidance, e.g.
* FAO Technical Guidelines on the Ecosystem Approach
to Fisheries (2003)
* Convention on Biological Diversity decisions on the ecosystem
approach
> Decision V/6 at 5th Conference of the Parties called upon Parties
and international organizations to apply the ecosystem approach
with 12 supporting principles recommended
> Decision VII/11 at 7th COP in 2004 provided annotations to the 12
principles
– Relationship of ecosystem approach to other principles, e.g. precaution,
public participation, integration (considerable “blurring” has occurred)
– Continuing uncertainty over how ecosystem boundaries should be established
for management purposes
* National
* Transboundary
– Spectrum of implementation measures, as exemplified in the fisheries sector
* Establishing MPAs
* Prohibiting “destructive” fishing practices at least in some sensitive areas,
such as seamounts and corals
* Encouraging more selective fishing practices such as longlining and
development of more environmentally friendly gears
* Reducing fleet sizes
* Restoring fish habitats
* Applying ecological impact assessment to fisheries
* Promoting use of eco-labelling
– Lack of clarity as to “end points” (overall ecosystem objectives)
* Ecological integrity (How much of the oceans should be dedicated to
“no take” areas?)
* Ecosystem health (What should be the indicators?)
+ Lack of resolution regarding how ecosystem objectives and human use
objectives should be “balanced”
+ Limited scientific foundations to support the ecosystem approach
* Limited scientific data
* Limited scientific capacity
* Limited scientific understanding of ecosystem complexities
4. Review the exponential growth of meetings and decisions relevant to oceans
pursuant to multilateral environmental agreements (MEAs)
• Over 500 MEAs have been negotiated, many relating to oceans and marine
species
• Between 1992-2007, UNEP has estimated that Conferences of the Parties under
major MEAs have
+ Held 540 meetings
+ Taken 5,084 decisions
• A major challenge is to keep up-to-date on the continually evolving ocean
governance seascape within MEAs with the CBD providing an example of the
numerous decisions and documents to take into account in relation to marine
biodiversity protection, e.g.
+ CBD Strategic Plan for Biodiversity 2011- 2020
– Adopted at the 10th COP in Nagoya, Japan in October 2010
through decision X/2
– Sets out 20 targets called the “Aichi Biodiversity Targets” serving as
aspirations for achievement at the global, regional and national levels
* Four of the targets specifically refer to marine areas or oceans stress on:
> Target 6 - By 2020 all fish and invertebrate stocks and aquatic
plants are managed and harvested sustainably, legally and applying
ecosystem based approaches, so that overfishing is avoided,
recovery plans and measures are in place for all depleted species,
fisheries have no significant adverse impacts on threatened species
and vulnerable ecosystems and the impacts of fisheries on stocks,
species and ecosystems are within safe ecological limits.
> Target 7 - By 2020 areas under agriculture, aquaculture and
forestry are managed sustainably, ensuring conservation of
biodiversity.
> Target 10 - By 2015, the multiple anthropogenic pressures on
coral reefs, and other vulnerable ecosystems impacted by
climate change or ocean acidification are minimized, so as to
maintain their integrity and functioning.
> Target 11 - By 2020, at least 17 per cent of terrestrial and
inland water areas, and 10 per cent of coastal and marine areas,
especially areas of particular importance for biodiversity and
ecosystem services, are conserved through effectively and
equitably managed, ecologically representative and well
connected systems of protected areas and other effective areabased conservation measures, and are integrated into the wider
landscapes and seascapes.
* Other targets are more general but still carry implications for sustaining
marine biodiversity, for example:
> Target 3 urges the elimination or phasing out of incentives,
including subsidies, harmful to biodiversity by 2020.
> Also by 2020, Target 8 calls for bringing down levels of pollution,
including that from excess nutrients, to levels not detrimental to
ecosystem function and biodiversity
> Target 12 encourages the prevention of extinction of humanthreatened species and the improvement of their conservation status.
+ CBD Programme of Work on Marine and Coastal Biodiversity
– Developed pursuant to the 1995 Jakarta Mandate on Marine and Coastal
Diversity (decision II/10)) and refined and extended for an additional six years
through decision VII/5 in 2004
– Urges Parties to undertake activities under five programme themes, for example:
* Theme 1, implementation of integrated marine and coastal area management
(IMCAM), Parties are urged to promote the application of ecosystem-based
management and to develop/implement strategies to overcome obstacles to
IMCAM.
* Under Theme 2, marine and coastal living resources, Parties are encouraged
to eliminate destructive fishing practices and restore fisheries stocks to
sustainable levels by 2015.
* Pursuant to Theme 3, marine and coastal protected areas, the establishment
by 2012 of integrated networks of marine and coastal protected areas was
suggested at both national and regional levels.
* For mariculture, the 4th theme, Parties were urged develop effective site
selection methods in the framework of integrated marine and coastal area
management and to use native species in mariculture.
* For invasive alien species, the 5th theme, Parties were encouraged to take
measures to address invasive alien species in ballast water, including
through the International Convention for the Control and Management of
Ships’ Ballast Water and Sediments, and to exchange information on
effective prevention and control techniques.
– Through decision X/29 on marine and coastal biodiversity taken at the 10th COP
in October 2010, Parties reaffirmed the programme of work, but the decision
suggested enhancements on many fronts.
* The need to highlight the role and potential of marine and coastal habitats,
such as salt marshes, mangroves and seagrasses, in mitigating and adapting
to climate change is stressed.
* The need to address the potential adverse impacts of ocean acidification on
marine and coastal biodiversity is emphasized.
* Targets of the programme of work are aligned with the Strategic Plan for
Biodiversity 2011-2020 and the Aichi Biodiversity Targets.
* Parties are invited to increase efforts to apply marine spatial planning tools.
+ Issuance of CBD Guidelines
CBD Parties have forged five key sets of guidelines especially important for
sustaining marine biodiversity.
– The Addis Ababa Principles and Guidelines for the Sustainable Use of
Biodiversity, adopted in 2004, through Decision VII/12, offer 14 practical
principles along with operational guidelines for each principle.
* The need for governance frameworks to empower and support rights of
local users to biodiversity components is highlighted (principle 2), as is
the need to ensure equitable distribution of benefits to indigenous and
local communities (principle 12).
* The avoidance or minimization of adverse impacts on ecosystem
services is also advocated in the context of sustainable use of
biodiversity resources (principle 5).
– A second set of guidelines, also adopted in 2004 through Decision VII/16F
(annex) is the Akwé:Kon Guidelines for the Conduct of Cultural,
Environmental and Social Impact Assessment regarding Developments
Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites
and on Lands and Waters Traditionally Occupied or Used by Indigenous and
Local Communities (CBD Conference of the Parties 2004).
* The Guidelines provide guidance to Parties on the incorporation of
cultural, environmental and social considerations of indigenous and local
communities into impact assessment procedures.
* Taking into account value systems of indigenous and local communities,
and possible impacts of proposed developments on traditional systems of
tenure and resource uses, is advocated (para. 47) and Parties are
encouraged to provide appropriate legislative authority (para. 67).
– A third set of guidelines to assist implementation of the ecosystem
approach was embraced by CBD Parties in 2004 through Decision
VII/11. The guidelines offer guidance on how to implement the 12
principles of the ecosystem approach adopted in Decision V/6 of the
Conference of the Parties.
* Key principles include:
> Decentralizing management to the lowest appropriate level
(principle 2)
> Maintaining ecosystem services as a priority target of the
ecosystem approach (principle 5)
> Managing ecosystems within the limits of their functioning
(principle 6)
> Seeking an appropriate balance between conservation and use
of biological diversity (principle 10)
> Considering all forms of relevant information, including
scientific and indigenous and local knowledge (principle 11).
* Implementation guideline 6.2 urges application of the precautionary
approach, given the uncertainty associated with defining the limits
of ecosystem functioning under most circumstances.
– Two other closely associated guidelines seek to strengthen the
incorporation of biodiversity considerations into impact assessment
procedures.
* The Voluntary Guidelines on Biodiversity-inclusive Environmental
Impact Assessment, endorsed through Decision VIII/28 (2006),
urge Parties to provide clear criteria for taking biodiversity into
account in decision-making and to apply the precautionary
approach in cases of scientific uncertainty when there is a chance of
significant harm to biodiversity.
* Draft Guidance on Biodiversity-inclusive Strategic Environmental
Assessment, also endorsed through Decision VIII/28, encourages
the application of strategic environmental assessment (SEA)
procedures to proposed policies, plans and programmes which may
affect one or more important ecosystem services and highlights the
need to fully involve all stakeholders in the SEA process, because
they can represent the multiple societal values surrounding
biodiversity.
5. Provide an overview of the preparations for Rio + 20
• Getting a clear picture on how the global community has been
implementing the various Earth Summit and other ocean-related
commitments is difficult as no global evaluation framework has been
developed
+ However, four key reports prepared in preparation for Rio + 20 do shed
light on how the world is faring in the quest for sustainable seas and coastal
communities
– An inter-agency paper, A Blueprint for Ocean and Coastal
Sustainability (2011)
– Oceans at Rio + 20: How Well Are We Doing in Meeting
the Commitments from the 1992 Earth Summit and the 2002
World Summit on Sustainable Development” Summary for
Decision-Makers (2011) (prepared by Global Oceans Forum)
– Ocean Earth: How Rio + 20 Can and Must Turn the Tide (2011)
(Pew Environment Group)
– Report of the Secretary-General on Oceans and Law of the
Sea (April 2011)
+ Overall, the picture is quite bleak, e.g.
– Some 85% of fish stocks are fully exploited, over exploited, depleted or
recovering from depletion
– For various shark species, population declines as much as 70-80% have
been reported globally
– Current fishing capacity has been estimated to be 2.5 times
more than needed to land MSY
– Benefits lost to fishing nations as a result of overfishing has
been calculated to be around USD 50 billion/year
– Global loads of the nutrients nitrogen and phosphorus have shown
about a three-fold increase since pre-industrial times from various
sources, particularly agricultural run-off and sewage
– Fluxes of dissolved nitrogen in the oceans are predicted to increase by
an additional 50% by 2050
– The number of “dead zones” (hypoxic or anoxic areas)
has grown around the globe from 49 in the 1960s to over
400 in 2008
– Over 80% of the world’s 232 marine eco-regions have reported the
presence of invasive species
- Coastal habitats have suffered substantial losses, e.g.,
* About 20% of the world’s
coral reefs have been lost
with another 20% degraded
* Mangroves have been
reduced to 30-50% of their
historical cover
* Some 29% of seagrass beds
have disappeared since the
late 1800s
Heron rests in a mangrove forest in South Florida. (Photo courtesy USGS)
http://www.ens-newswire.com/ens/feb2008/2008-02-03-01.html
-
Only a little over 1% of the world’s oceans have been protected to date
through MPA establishment
-
Besides overcapacity and overfishing the Secretary General has identified
ongoing challenges in achieving suitable use of marine living resources,
including:
* Illegal, unregulated and unreported fishing
* Inadequate flag State control
* Excessive by-catch and discards
* Inadequate data collection and
reporting
* Lack of scientific information
and understanding
* Ineffective monitoring, control
(Madagascar)
and surveillance
http://www.ird.fr/peches-et-pecheurs-dusud/index.php?page=P2C5R8&langue=fr
* Limited transfer of technology
and capacity-building
+ Nevertheless, there are some bright spots, such as:
-
Over 100 countries have established integrated coastal management
programs
-
With GEF support at least 17 LME projects have been funded since
1998 in excess of USD 3 billion resulting in
* Several new LME Commissions and
* Documented reversal of the large-scale “dead zone” in the
Black Sea through pollution abatement and nutrient
management reforms
www.skep.org.za/images/GEF%20logo%20CROPPE
D.gif
- A UN Regular Process for Global Reporting on the State of the Marine
Environment, called for by the WSSD Plan of Implementation, was
finally approved by the UN General Assembly in 2010 regarding scope
and operational details with a first state of the environment report
expected by 2014, in time for the CSD review of oceans
http://www.quasimeme.org/gfx_content/background%20webpage.jpg
-
Major binding and voluntary fisheries agreements/documents
have been forged
* Binding
> Agreement to Promote
Compliance with International
Conservation and Management
Measures for Fishing Vessels on
the High Seas (1993)
> UN Fish Stocks Agreement
(1995)
> Agreement on Port State
Measures to Prevent, Deter
and Eliminate IUU Fishing (2009)
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* Non-binding
> FAO Code of Conduct for Responsible
Fisheries (1995)
> Four International Plans of Action
+ Seabirds in Longline Fisheries (1999)
+ Conservation and Management of Sharks
(1999)
+ Management of Fishing Capacity (1999)
+ Prevent, Deter and Eliminate IUU Fishing
(2001)
> Over 20 sets of FAO technical guidelines, e.g.
+ Precautionary Approach to Capture Fisheries
and Species Introductions (1996)
+ The Ecosystem Approach to Fisheries (2003)
+ International Guidelines for the Management of
Deep-sea Fisheries in the High Seas (2008) ftp://ftp.fao.org/docrep/fao/005/v9878e/v9878e00.pdf
+ International Guidelines on Bycatch
Management and Reduction of Discards (2011)
-
Conclusion of the global Convention on Ballast Water and Sediments
(2004) and the catalyzing of a global multibillion dollar ballast water
treatment and management industry
-
Establishing stricter standards for vessel-source pollution discharges,
particularly for garbage and air emissions.
• Envisioning future directions in coastal/ocean governance
The various reports have suggested numerous possible ways forward at the
global, regional and national levels
+ Global
- Phase out of deep sea bottom trawling
by 2015
- Prohibiting the take of threatened or
endangered sharks
- Negotiating an implementing agreement to
LOSC on the protection and sustainable use
of biodiversity beyond national jurisdiction
- Developing a global strategy on blue carbon
including the creation of an international
blue carbon market
- Forging a legally-binding agreement on hull
fouling
The basking shark (Cetorhinus maximus) is classed as "globally
vulnerable to extinction" in the IUCN's new red list of oceanic shark
species. Photograph: Alan James/NPL/Rex Features
http://www.google.ca/imgres?imgurl=http://static.guim.co.uk/sysimages/Guardian/Pix/pictures/2009/6/23/1245777821189/Sharks-endangered-Basking010.jpg&imgrefurl=http://www.guardian.co.uk/environment/gallery/2008/feb/19/endangered.sharks&us
g=___BpQgbeGNCZY27WQKbbeN3Vlpuk=&h=390&w=544&sz=40&hl=en&start=14&zoom=1&tbnid=
HYpDIcEIkOkOSM:&tbnh=95&tbnw=133&ei=hWLBTrfsHYjn0QGWstG9BA&prev=/images%3Fq%3Ds
harks%26hl%3Den%26sa%3DX%26rlz%3D1T4ADBR_enCA330CA330%26tbm%3Disch&itbs=1
- Establishing a UN oceans ambassador or other high level ocean
advocacy mechanism
- Ensuring oceans are considered regularly within the CSD
- Developing a UN Secretary-General “Oceans Budget” report to track
previous and current expenditures relating to capacity-development and
technology transfer in coastal/ocean development and management
- Forging a global legally-binding instrument on land-based marine
pollution
- Adopting a comprehensive chemicals convention
- Reaching a new global agreement on greenhouse gas emission controls
and reductions
- Transforming UNEP into a UN Environment Organization
+ Regional
- Transforming RFMO/As into regional ocean management
organizations (RFMOs)
- Enhancing coordination among regional organizations and
arrangements such as RFMO/As, regional sea programs and LME
initiatives
- Completing RFMO/A performance reviews and convention
modernizations
http://www.fao.org/fishery/rfb/en
+ National
- Incorporating key sustainability principles, such as precautionary and
ecosystem approaches, into national legislation and regulations
- Developing stricter regulation of nutrients, e.g.,
* Setting standards for nutrient removal
from waste water
* Mandating nutrient management plans
in agriculture
* Enhancing regulation of manure
applications and other fertilizers
- Forging national laws and policies to
address growing offshore uses such as
renewable ocean energy and
aquaculture
http://eu.oceana.org/sites/default/files/euo/feature_Marine_Ren
ewable_Energy_5.jpg
• Time for Discussion!
+ What do you think are the most pressing national, regional
and global issues needing to be addressed?
+ If you were asked to suggest a major strengthening to the
global ocean governance framework, what would it be?
+ Are you hopeful for major steps forward at Rio+20?
Appendix
• Ensuring national implementation of sustainability principles with the real
world example of Canada (a focus upon precautionary and the ecosystem
approaches)
• Precautionary approach
Three quick snapshots on Canadian implementation
– How Canada has been approaching in general
– How Canada has been approaching in areas of marine pollution control
– How Canada has been approaching in living resource management
– General approach to precaution
* Canada has developed a Framework for the Application of Precaution in
Science-based Decision Making about Risk (2003)
> Document prepared by interdepartmental committee and the various
federal departments / agencies, including the Department of Fisheries
and Oceans
> Has been heavily criticized by NGOs and academics on numerous
grounds, e.g.
† Tries to limit application of the precautionary approach to
situations where scientific risk assessment has identified threats of
serious or irreversible harm
† Avoids the most powerful implication of the principle - shifting
the burden of proof to those who propose development / change
† Suggests only cost-effective measures need to be taken
† Fails to mention the need to give priority to “alternatives
assessment” (rather than focusing on risk assessment and
acceptable risk, the focus of decision-makers should shift to
identifying alternatives to hazardous technologies and ecologically
harmful activities)
* Canada has adopted precautionary approach in Canadian
Environmental Assessment Act (through 2003 amendments)
> As a purpose of the Act
> Projects are to be “considered in a careful and precautionary
manner … in order to ensure that such projects do not cause
significant adverse environmental effects” (s. 4(1))
* A recent environmental impact assessment review process of a
proposed rock quarry in Nova Scotia provides a useful case study on
how important the precautionary approach may be in EIA
decisionmaking
> Proposed quarry location on Nova Scotia’s Fundy Coast
> Many potential marine environmental effects
† Ships striking endangered North Atlantic Right Whales
~ Only about 350 individuals remain
~ Extremely vulnerable to increased ship traffic
Large bulk carrier similar to the vessel proposed for the Project
† Ships bringing invasive marine species from the United States to
Canada via ballast water
~ Special concern over parasitic lobster disease (decimating local
lobster populations)
~ Occurs in waters off New Jersey and New York but not in
Canada
† Blasting/crushing noise
~ Possibly disrupting migratory behavior of endangered Inner Bay
of Fundy salmon (fewer than 250 wild salmon thought to exist)
~ Possibly effecting marine mammals (whales, porpoises)
~ Possibly causing crustaceans (such as lobsters and snow crabs)
to alter movements
http://www.kidport.com/RefLib/WorldGeography/Canada/Images/FishingBoats.JPG
> A joint federal-provincial environmental assessment panel was
appointed to review the proposal
† Both federal and provincial environmental legislation call for a
precautionary approach
† Joint panel took a strong precautionary stance (proponent bears
the burden of showing the project will not have significant
adverse environmental effects)
† In October 2007 Final Report, the Panel recommended
rejection of the project on various grounds including
~ Failure by the proponent to demonstrate significant adverse
environmental effects would not be caused
~ Inconsistency of the project with community “core values”
> Based upon report, Nova Scotia’s Minister of the Environment
subsequently refused to approve the project (November 20, 2007)
The project poses the threat of unacceptable and significant
adverse effects to the existing and future environmental,
social and cultural conditions
† Federal government subsequently rejected the proposed
project also
– How Canada has been approaching precaution in areas of marine
pollution control
* Only strong embrace has been in area of ocean dumping (“reverse
listing” approach where only listed “safe” wastes allowed to be
disposed of at sea pursuant to a permit)
* Quite weak in addressing land-based pollution, e.g.
> No province mandates pollution prevention plans as a
precondition to licensing / approving industrial emissions
> Only one province (Nova Scotia) has adopted the precautionary
approach in general environmental legislation
>While the Canadian Environmental Protection Act, 1999 (CEPA)
requires government officials to follow the precautionary principle
in implementing the Act, CEPA wanders away from strong
precaution
† Leaves over 23,000 chemicals on the market and continues a
reactive substance by substance toxicity assessment approach
† Gives very limited authority for federal government to control
land-based pollution other than toxic substances (only
objectives, guidelines and codes of practice may be established)
† Limits power of MOE to impose pollution prevention plans
(for listed toxic substances and international air or water
pollutants)
>While federal Fisheries Act has prohibitions against deleterious
deposits and against harmful alterations of fish habitats, the Act has
not favored precaution in practice
† Regulations have been passed for six industries authorizing
deposits with weak and crude discharge standards
† Regulatory and legislative provisions have not been strictly
enforced (e.g. various environmental groups documented over
2,400 Alleged Violations of Pulp and Paper Mill Effluent
Regulations from 1995-2000 in Central and Eastern Canada
with only 8 prosecutions)
* Canada also quite weak in addressing pollution from seabed
activities (petroleum developments), e.g.
> No mention of the PP in the multiple statutes governing
offshore petroleum activities
> No specific regulatory requirements for chemicals used in
offshore drilling and production activities (just 1999 Guidelines
Respecting the Selection of Chemicals Intended to Be Used in
Conjunction with Offshore Drilling and Production Activities)
> Joint federal-provincial petroleum boards have been accused
of favoring industry interests over precaution, e.g.
†In March 2003, the Canada-Nova Scotia Offshore
Petroleum Board gave approval for two oil companies to
undertake seismic testing in marine waters off Cape Breton,
Nova Scotia with various precautionary measures such as:
~ Seismic ships to stay at least 10 km offshore
~ Air-gun blasts to be phased in to encourage species to
swim away
† Fishermen and environmental groups outraged in light of
limited scientific information on effects of seismic testing
on species like snow crabs and lobsters
– How Canada has been approaching precaution in living resource management
* DFO has yet to “spell out” what the precautionary approach should mean in
the ocean context (The Oceans Strategy simply reiterates a general
commitment and the need to give priority to maintaining ecosystem health and
integrity)
* DFO has held various national workshops on the precautionary approach in
fisheries but the focus has been on how to establish cautious catch limits not
on the broader issues, such as promoting environmentally appropriate fishing
techniques/gears and enhancing public participation in fisheries management
* Canada’s Fisheries Act dates back to 1868 and has yet to be modernized to
reflect modern ocean governance principles including the precautionary
approach
* DFO has adopted a Fisheries Decision-making Framework for
Incorporating the Precautionary Approach (March 2007)
> Advocates the establishment of two key fish stock reference
points
† Limit reference point (stock status level below which
serious harm to productivity is likely to occur)
† Upper stock reference point (target stock status for
ensuring an adequate buffer for avoiding serious harm to
productivity)
> Suggests the categorization of fish stocks into three categories
† Critical zone (below the limit reference point) (red light)
† Cautious zone (between the limit reference point and
upper stock reference point) (yellow light)
† Healthy zone (above the upper stock reference) (green
light)
> Proposes fisheries removal/exploitation rates should vary according to
the category
† Critical Zone
~ Conservation concerns are paramount
~ Removals must be kept to the lowest possible level
† Cautious Zone
~ Socio-economic and biological factors must be balanced
~ Exploitation rate should set to ensure high probability of
moving toward the healthy zone
† Healthy Zone
~ Socio-economic considerations prevail
* Precautionary reference points have been established thus far for relatively
few fish stocks
* DFO has yet to issue regulations clarifying the precautionary
approach to genetic modification of aquatic organisms (for
example, transgenic fish)
> Present federal government policy appears to be in favor of
allowing future commercial development
> However, restricting transgenic aquatic organisms to landbased facilities where they cannot escape
* No Province has included the precautionary approach in
aquaculture or fisheries legislation
+ The ecosystem approach
– Canada has made general commitments to manage human uses of the
oceans to ensure healthy ecosystems, for example
* Canada’s Oceans Act states:
“Canada holds that conservation, based on an ecosystem
approach, is of fundamental importance to maintaining biological
diversity and productivity in the marine environment.”
* Canada’s Oceans Act (s. 42(e)) authorizes the Minister of Fisheries
and Oceans to:
“Carry out investigations for the purpose of understanding oceans
and their living resources and ecosystems.”
– Canada has established eight MPAs pursuant to the Oceans Act (far
from a comprehensive network)
– Canada has held various workshops to discuss objectives and indicators
for ecosystem-based management
* National workshop in 2001 developed three broad ecosystem
objectives
> To conserve enough components (ecosystems, species,
populations, etc.) so as to maintain the natural resilience of the
ecosystem
> To conserve each component of the ecosystem so that it can
play its historic role in the food web
> To conserve the physical and chemical properties of the
ecosystem
* 2004 Workshop developed a further 32 guidelines for moving
towards an ecosystem approach (The Habitat Status Report on
Ecosystem Objectives is available at the Canadian Science
Advisory Secretariat website <www.dfo-mpo.gc/ca/csas>).
– Canada has been hesitant to protect sensitive benthic ecosystems from
bottom trawling because of powerful socio-economic interests
* A DFO Policy for Minimizing the Impacts of Fishing on Sensitive
Benthic Areas (Last Updated January 21, 2008) is obviously concerned
over totally closing sensitive sea areas (like cold water corals and sponge
beds) to bottom trawling
> In frontier areas (deep water ecosystems below 2000 m and Arctic
marine ecosystems) DFO willing to consider exploratory, smallscale fisheries to collect data on the presence of benthic habitats and
non-target species
> In historically trawled areas
† A balancing act to protect identified sensitive benthic areas and
to recognize the socio-economic importance of the fishery is
suggested
† A menu of management measures set out, e.g.
~ Partial or total time and area closures
~ Gear restrictions or modifications to reduce contact with the
seaflour
~ Effort reduction
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