OceanMOOC | 7.4 | Governing Marine Biodiversity

Although we don’t usually build fences around
our wilderness reserves on land, the idea is very clear. You have a clearly defined
patch of land where the uses are restricted. Flora and fauna are protected and compliance
with the rules are monitored. But there are often problems with this element of compliance,
it’s quite obvious but at least we are talking about an area of land where it’s very clear
who has sovereignty to regulate and to enforce. It’s a state on whose territory we have
this wilderness reserve. This can be very different in the oceans.
There’s a whale sanctuary in the Southern Ocean but this is very different from the
traditional nature reserves on land. Nobody has sovereignty over this part of the ocean,
and while commercial whaling is prohibited for those states who are member to the International
Convention on the Regulation of Whaling, other users are not necessarily prohibited and non-members
could still engage in whaling. So, who can control what happens in this far off place
in the ocean? And would there be a court to sanction a flag state of a vessel that engages
in illegal whaling? The answer is very far from obvious, although the International Court
of Justice has already dealt with the legality of the Japanese scientific whaling programme
when Australia successfully claimed that the programme breached international law.
In any case, we have to look very closely in which maritime zone and what kind of marine
protected area’s established, what users should be excluded and who should be bound by it.
We tend to be very concerned with certain species when we consider…we consider worth
protecting, like whales, like seals, turtles or polar bears. While species-specific measures
like whale sanctuaries, like restrictions on international trade, that can assist with
protecting species, this sectoral approach can only be part of a more comprehensive scheme.
International regulation has come a long ways since the beginning of the twentieth century
that demonstrates a change in the mindset of what humans consider valuable. And this
is something we need to reflect upon. What do we think is worth protecting? First, only
those species considered useful were addressed in international agreements while the non-useful
or the harmful could be killed. This was, for example, the case for large birds of prey
that were considered harmful for agriculture. Later on, the protection of habitat was a
focus of attention because species could not be protected in isolation and sectoral agreements
like the prohibition of trade added to the protection of species but could not prevent
loss if habitats were not protected. The 1970s was also the time of the establishment
of large nature reserves and parks fostered by international conventions like the Ramsar
Convention on wetlands or the UNESCO World Heritage Conventions. Yet another step further
in the conservation of biological diversity was a Convention on Biological Diversity that
moved away from species or habitat towards a comprehensive understanding of biological
wealth based upon an intrinsic value of diversity. So, this convention was adopted in 1992. It
enjoys universal membership and defines biological diversity as follows: Biological diversity
means a variability among living organisms from all sources including, inter alia, terrestrial,
marine, and other aquatic ecosystems and ecological complexes of which they are part. This includes
diversity within species, between species and of ecosystems. And you see, this goes
a lot further than protecting birds useful for agriculture in the 1930s. The convention
is applicable to the marine environment as far as national jurisdiction reaches. So what
our main problems is: how do we protect marine biological diversity beyond areas of national
jurisdiction? At the moment, there is no international treaty
addressing, for example marine protected areas on the high seas. Such an instrument however
is at the early preparatory stage and although currently not even diplomats who have been
closely following the process for a decade have an idea how this instrument will look
like in the end, it’s at least one step forward to create, to make it possible that
there are marine protected areas on the high seas.
If we take protecting biodiversity in the ocean seriously, we need to take an integrated
approach. This means, as a matter of principle, that no issues should be excluded if biodiversity
is to be protected effectively. This would also include a biodiversity-oriented sustainable
fisheries management and the establishment of protected areas and I can tell you already
that states will be very reluctant to integrate rules on the conservation of biological diversity
and fisheries law because they are regarded as two completely distinct fields of law.
It’s obvious they’re closely related on a factual basis but it will be difficult to
come…to make states agree on integrated solutions.
To change the current approach to the conservation of biological diversity in the oceans, it
would be necessary to establish regulations on integrated approaches and to again, to
have strong institutions that can monitor and enforce compliance. Marine protected…protected
areas exist on land, in coastal zones like the Wadden Sea but also in the seas. The Australian
Great Barrier Reef is an example for a marine park. Many sites are considered particularly
valuable that have been turned into such marine reserves.
Marine protected areas are one tool to protect biological diversity on land or water but
from the perspective of effective governance, it’s hard to say how we can define an MPA.
There is no commonly agreed definition and there is no catalogue of criteria what must
be prohibited in such an area. So, they can serve a variety of purposes and connected
to this, they can include or exclude different uses. While one MPA in the territorial sea
may allow for snorkelling and low scale fishing, other MPAs may restrict the fishing gear to
certain equipment while others may go further and have strict no-take zones and even prohibit
navigation. On the high seas, currently MPAs are very rare and if they are established,
it’s a good step forward because it shows willingness to act but they’re very limited
in scope. So, the regional convention for the Northeast Atlantic (OSPAR) has been praised
for the establishment of a network of high seas MPAs. However, they rather resemble paper
parks. This means they look good on paper but it’s quite hard to effectively restrict
certain uses. Members of a treaty can between themselves…could prohibit fishing, they
could prohibit navigation but the current regimes we have don’t do that. And what
you cannot do is to impose restrictions on other states. You cannot force third states
to refrain from fishing on the high seas. There’s a freedom of fishing and states
can comply with that. So, even if two states have a perfect MPA
treaty restricting fishing, the other 190 states of the world could go and fish and
profit. Maybe if we’re…if you’re have a successful MPA and stocks are recovering,
another state could just come and fish and take all your fish that you’ve protected.
A way forward, of course, would be a global instrument with broad participation and ideally,
this would cooperate…cooperation with the for example also the International Seabed
Authority, if you think about a marine protected area that has the water column and the seabed.
At the moment, we don’t have such an instrument. One crucial question that’s also relevant
for politicians and lawyers is how do we know which areas are particularly worth protecting.
Here we know we need a process that connects political decision-making with science. We
would need to define the purpose of an MPA and this could be the protection of a field
with hydrothermal vents because of their unique biodiversity or protect a spawning site of
a fish stock but to be able to do this, we would need the science, we would need to know
where these hotspots are. And also what kind of network would you need? Would it be sufficient
to have isolated MPAs? Or would that not serve the purpose because in between, if you have
migrating species, they would not be protected. So, a small, a single, small-sized MPA in
an area where we lack knowledge about what we are actually protecting will most likely
be just another paper park. For the new implementing agreement that I
have just mentioned, that could be a step forward. Ever since the Convention on Biological
Diversity has been adopted in 1992, there have been discussions on how to address the
establishment of MPAs and access and benefit sharing to genetic resources in areas beyond
national jurisdiction. The convention itself does not address these questions because it’s
deliberately limited in scope. The Convention on the Law of the Sea was to be left unaffected
by this new agreement and enjoys explicit preference over the Biological Diversity Convention.
However, the Law of the Sea Convention was adopted in 1982, it doesn’t mention the
term biological diversity, it doesn’t mention the term genetic resources, it doesn’t explicitly
address the establishment of marine protected area. So, at that time in 1982, states had
different interests and a different focus. They’re focused on straits, on warships,
on resources on the continental shelf but not on biodiversity. Now, with this new implementing
agreement, it’s the idea to have something that can address these issues where hopefully
many states will become a party. While for a long time after the adoption of
the Law of the Sea Convention, it seemed too difficult to incorporate new ideas and new
challenges into that instrument, now the times seem to have changed. A working group of states
representatives has been working on questions on how to protect marine biological diversity
for a decade. They have identified four crucial issues to be addressed to better protect biodiversity
in areas beyond national jurisdiction and this new instrument is supposed to be an implementing
agreement to the Law of the Sea Convention. So, it’s deliberately incorporated into
this treaty of 1982. These four issues are the establishment of MPAs, access and benefit
sharing concerning genetic resources, environmental impact assessment, and a transfer of technology.
So, will this new agreement be legally binding any time soon? No. Not at all. International
law is very, very slow. The UN General Assembly has decided to establish a preparatory commission
to make some suggestions. At the end of this process, however, is not the agreement which
will then be binding, but it will…the General Assembly will decide whether or not it wants
a diplomatic conference to deal with the new agreement. And only at the end of this diplomatic
conference will there be a text of a treaty to be adopted. Once it’s adopted, states
can sign and ratify it. If a certain number of ratifications is reached, the treaty enters
into force but only for those states who have ratified, not for the others. This means it’s
a very good thing to have discussions on a new implementing agreement, it’s good that
they have left the stage of informal working groups but it will take many years before
the end of the process is reached and we cannot know yet how the implementing agreement will
look like and whether the instruments are weak or strong and how many states will commit
to it in the end. To summarise this chapter, we have learned
that ocean biodiversity must be protected by integrating issues, such as fisheries management,
that have been viewed separately. There’s no legal definition for ‘marine protected
area’, although it’s good that states start to agree on high seas MPAs. They are still
very limited with regard to effective protection. A new implementing agreement to the Law of
the Sea Convention on biological diversity is supposed to address the question of MPAs
on the high seas and other important issues but it will take many years before the text
of the new agreement will be adopted.

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