Implementation of Existing International Legal Instruments for Conservation and Sustainable Uses of Marine Biodiversity in Areas beyond National Jurisdiction: A Case Study of the OSPAR Convention

Autor:Lindsay Ryan Valerio
Càrrec:Predoctoral student. Universitat Rovira i Virgili

The states of the world face the new challenge of attempting to prevent the global loss of marine biodiversity by protecting the 64% of the surface area of the oceans that lies beyond national jurisdiction. With this aim, various regional agreements have been negotiated to commit states to set up representative networks of marine protected areas (MPAs). The aim of this note is to explain how it... (ver resumen completo)


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I Introduction

The States of the world face new challenges if they are to prevent the global loss of marine and coastal biodiversity.1They need to increase efforts to protect 64% of the ocean located in areas beyond national jurisdiction (hereinafter, ABNJ), a goal that can only be achieved through public international law and regional cooperation.2

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For this reason an increasing number of international instruments are still calling for the use of area-based management tools, in particular MPAs,3for the protection and preservation of marine biodiversity and the sustainable use of the oceans’ resources. The MPAs will help to reduce the decline in ocean biomass and the risk of fisheries collapse and will improve the negative impacts of human activities such as cable laying or deep sea bottom trawling.4

With these aims, a collage of regional agreements has been negotiated around the globe to commit States to protecting their offshore marine environments by regulating various sources of marine pollution and establishing MPAs.5The geographical scope of many of them is limited to waters within national jurisdiction, while a few others provide for conservation and the sustainable use of marine biodiversity in ABNJ based on framework conventions. An example of the latter is the designation of MPAs in the ABNJ of the North East Atlantic region by the OSPAR Convention (see below).6

In this regard, international environmental law has developed rapidly since the 1972 United Nations Conference on Human Environment (Stockholm Conference),7and awareness has been raised about the seriousness of environmental degradation and the need for extensive cooperation among nations if it is to be combatted. Subsequently, the 1992 United Nations Conference on Environment and Development (UNCED)8adopted one of the important treaties - the Convention on Biological Diversity (CBD)9- which

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have had considerable impact not only on the development of international environmental law, but also on economic development and trade relations. Also influential have been two non-binding documents issuing from UNCED: the Declaration of the Conferences (Rio Declaration) and the Agenda 21, a program of action setting out the measures required to protect and preserve the environment in the 21st century.10Many of these instruments were strongly reaffirmed at the World Summit on Sustainable Development (WSSD)11and have direct implication for the protection of the marine environment and the living resources of the sea.

During this period, we have also seen the parallel negotiation and entry into force of the United Nations Convention on the Law of the Sea 1982 (LOSC),12which is an important legal framework for the world’s oceans and seas, and unifies instruments related to biodiversity (such as the CBD), fisheries (such as the Food and Agriculture Organization, FAO), and sources of pollution (such as measures adopted in the context of the International Maritime Organization, IMO).

The purpose of this note is to provide an overview of the implementation of the existing international legal instruments for the conservation and sustainable uses of marine biodiversity BNJ. With this objective, brief mention is made of several policy initiatives that have been taken by the international community to establish MPAs as a global goal. The legal frameworks, in particular LOSC and CBD that regulate the MPA in ABNJ, are also discussed. The topic of the third part is how the OSPAR Convention is implementing these instruments at both the global and regional levels for the conservation and sustainable uses of marine biodiversity, specially creating the first network in the world of MPAs located in the high seas.

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II Establishing an international legal framework for conservation and sustainable uses of marine biodiversity beyond national jurisdiction
1. General observations

The establishment of MPAs has been a priority for global marine conservation. In fact, the first international commitments to a global system of MPAs, which include the high seas, was the resolution adopted at the IUCN General Assembly in 1988.13

Nevertheless, there have been various other commitments this century. Firstly, in 2002 the States at the World Summit on Sustainable Development (WSSD)14adopted further commitments to reduce the rate of biodiversity loss by 2010 and also set up MPAs in accordance with international law, including representative networks by 2012.15

Subsequently to this commitment, as the global political forum in all matters of the ocean including the implementation of the UNCLOS,16the United Nations General Assembly (UNGA) reaffirmed the commitment of the States to developing and facilitating the use of a variety of approaches and tools for conserving and managing vulnerable marine ecosystem by 2012, with special attention to ABNJ.17

In relation to the UNGA and its role, mention should be made of the work of the Ad Hoc Open-Ended Informal Working Group,18which is currently dealing with the process to ensure that the existing legal framework under LOSC effectively addresses conservation and the sustainable use of marine biodiversity in ABNJ.19On this issue, it should be pointed out that a proposal has been made for a new implementing agreement

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to UNCLOS,20which hopefully can provide a vehicle for implementing the ecosystem and precautionary approaches to high seas management, including MPA and Marine Spatial Planning.21

A final global commitment assumed in 2012, derived from the Conference of the Parties (COP) to the CBD and in accordance with the Jakarta Mandate,22was to develop marine and coastal protected areas (MCPAs) including representative global networks in ABNJ.23It was also agreed to submit 10 percent of the areas with particular importance for biodiversity to a regime of effective and equitable management and other area-based conservation measures by 2020. This is known as the Aichi target.24

All these global commitments have generated multiple measures and some regional agreements sponsored by international organisations. Thus, these regulatory efforts have set strong expectations that global rules will be adopted to guide the future establishment of MPAs outside state jurisdictions.25These rules could be drawn up on the basic requirements in LOSC and the CBD. However, there is a need for a legal instrument that can regulate the management and assessment of the environmental impacts of existing and emerging activities in waters BNJ. Only in this way will marine environmental protection, the sustainability of resources and the legitimate interests of the international community be properly harmonized and integrated.26

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2. Legal Framework for regulating Marine Protected Areas beyond National Jurisdiction
2.1. United Nations Convention on the Law of the Sea

The 1982 United Nations Convention on the Law of the Sea (LOSC) provides the global legal framework for the seas and oceans, which promotes the sustainable use of their resources, the conservation of their living resources and the preservation of the marine environment, under the sovereignty27and jurisdiction28of its member States. It is complemented by two implementation agreements: namely, the Agreement relating to Part XII of LOSC29and the Agreement for the Implementation of the provisions of LOSC relating to the conservation and management of straddling fish stock and highly migratory fish stocks.30

The Convention sets out States’ rights31and responsibilities, within and beyond the limits of national jurisdiction.32In ABNJ that include the high sea, seabed and ocean floor, all States are under a general obligation to protect and preserve the marine environment.33These duties include those necessary measures 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.34In addition, all States have the duty to

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cooperate, both globally and regionally, in formulating and drafting international rules, standards and recommended practices and procedures to achieve these ends.35

In the case of the high sea, as remarked by the International Tribunal for the Law of the Sea (ITLOS) in the Order rendered on 3 December 2001, MOX Plant, "the duty to cooperate is a fundamental principle in the prevention of pollution of marine environment under Part XII of the Convention and general international law and that rights arise therefrom which the Tribunal may consider appropriate to preserve under article 290 of the Convention."36In this understanding, the international community as the trustee of the high sea may improve the coordination and cooperation with the global and regional bodies with sectoral responsibilities, such as the Conference of the Parties to the CBD, the Regional Fisheries Management Organizations (RFMOs), the IMO, the FAO and the regional agreements, which fulfill a relevant role in the protection and conservation of the marine environment.37

Furthermore, for the purpose of this note, the regime for the...

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