The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements?

Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎

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The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements? Jeff A. Ardron a,n, Rosemary Rayfuse b,c, Kristina Gjerde d, Robin Warner e a

Institute for Advanced Sustainability Studies e.V., Berliner Strasse 130, 14467 Potsdam, Germany Faculty of Law, UNSW Australia (The University of New South Wales), Sydney, NSW 2052, Australia c Faculty of Law, Lund University, Sweden d IUCN Global Marine and Polar Programme and World Commission on Protected Areas, 105 Irving St., Cambridge, MA 02138, USA e Australian National Centre for Ocean Resources and Security (ANCORS), Building 233 Innovation Campus, University of Wollongong, Australia b

art ic l e i nf o

Keywords: Areas beyond national jurisdiction Biodiversity High seas International cooperation MPAs

a b s t r a c t While the international community debates the desirability and possible content of a new global instrument for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, alternative approaches to improving the application and implementation of existing agreements for the protection of biodiversity appear to have fallen off the agenda. Recent practice under existing global and regional agreements suggests that, given political will, significantly greater protections could be achieved through the more effective implementation of individual sectoral agreements. However, while single-sector measures have the potential to make a valuable contribution, ultimately only multi-sectoral, integrated, cooperative management can ensure the conservation and long-term sustainable use of marine biodiversity in ABNJ. This requires establishing mechanisms for cooperation both intra and inter-sectorally, as well as between the sectoral and global and regional conservation agreements. This paper examines recent initiatives within various sectoral and conservation treaty regimes aimed at improving their application within ABNJ as well as some of the challenges to, and options for, further and better cooperation and coordination among and between existing regimes, and it identifies a range of possible mechanisms for achieving more effective implementation and coordination among them. Greater use of existing mechanisms represents a sensible approach to making the most of existing arrangements without in any way foreclosing the possibility of the adoption of a more comprehensive, integrated global agreement for the protection of marine biodiversity in ABNJ. & 2014 Elsevier Ltd. All rights reserved.

1. Introduction The past decades have witnessed important legal and policy progress towards the better management of expanding human activities and their detrimental impacts upon marine ecosystems. However, this progress, which has resulted in the adoption of a wide range of legal and policy instruments and arrangements, is counter-balanced with the sobering news that the ecological success stories remain stubbornly few, particularly in areas beyond national jurisdiction (ABNJ) [1]. In general, marine biodiversity is under increasing pressures and most indicators show its condition as worsening rather than improving [2–4]. In the ABNJ context, this has led to increasing calls for a new global agreement to protect biodiversity in ABNJ [5,6]. In 2013, the n

Corresponding author. Tel.: þ 49 331 288 22 385. E-mail addresses: [email protected] (J.A. Ardron), [email protected] (R. Rayfuse), [email protected] (K. Gjerde), [email protected] (R. Warner).

United Nations 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 (BBNJ Working Group) [7] agreed to a process to consider the “scope, parameters and feasibility” of a new international instrument under the United Nations Convention on the Law of the Sea (LOSC) [8] for the conservation and sustainable use of marine biodiversity beyond national jurisdiction [9]. A decision is to be taken by August 2015 on whether or not to proceed with the negotiation of the new instrument. The possibility of a negative decision, meaning a decision not to proceed to negotiate a new instrument, appears to be a very real one, with key States having agreed to a so-called ‘package approach’ requiring progress on the other issues in the package, including questions related to benefit sharing of marine genetic resources from ABNJ, and on capacity building and transfer of technology, before proceeding on issues related to marine conservation [5]. Given the current intense focus on the desirability and possible content of a new instrument, alternative approaches to improving

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Please cite this article as: Ardron JA, et al. The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements? Mar. Policy (2014), http://dx.doi.org/10.1016/j.marpol.2014.02.011i

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the application and implementation of existing agreements for the protection of biodiversity have, for now at least, fallen off the agenda. Nevertheless, while the value of a new global agreement cannot be understated, even its successful negotiation is unlikely to render redundant the need for both improved implementation of individual agreements and improved coordination and cooperation between and among existing regimes [10]. Indeed, on the contrary, a new agreement may mandate or at least presuppose this. Thus, regardless of the outcome of the BBNJ discussions, consideration must be given to the question of what can, and should, be achieved using existing international agreements. This paper examines the opportunities for, and challenges to, the more effective implementation and coordination of the existing legal framework for the conservation and sustainable use of marine biodiversity in ABNJ. It begins with an outline of the existing legal framework and provides an overview of recent initiatives within the various treaty bodies aimed at improving their application within ABNJ. It then examines some of the challenges to, and options for, further and better cooperation and coordination among and between existing regimes. While a comprehensive assessment of possible ways and means of achieving more effective implementation and coordination of existing regimes is beyond the scope of this paper, it is hoped that the examples and suggestions contained within this paper will help to reinvigorate the discussion on the role of existing mechanisms, not necessarily as an alternative to, but rather, as a complement to any eventual new global agreement

2. Existing agreements applicable to ABNJ The legal framework currently governing ABNJ is complex. The key agreements relevant to marine resources management and the conservation of biodiversity in ABNJ, and the institutions or organisations responsible for their implementation, are set out in Tables 1a and 1b. With the exception of the over-arching LOSC, these agreements can be sub-divided into two general groupings: (1) sector-specific agreements for the management of marine resource exploitation and maritime activities and their associated

institutions and parties (henceforth the sectoral agreements); and (2) conservation-oriented agreements, mandated to conserve species, habitats, and/or ecosystems and their associated institutions and parties (henceforth, the conservation agreements). These agreements can be further categorised by their geographic scope; some being global and others regional in scope. 2.1. Sectoral agreements The maritime sectoral activities with the greatest potential to affect marine biodiversity in ABNJ, and hence the agreements of interest here, are those concerning fishing (including whaling), shipping (including dumping and placement of wastes at sea), and seabed mining. At the global level, whaling is regulated by the International Whaling Commission established by the globally applicable International Convention for the Regulation of Whaling [11]. Shipping is regulated pursuant to a host of treaties of both global and regional application relating to the prevention of pollution and dumping adopted under the auspices of the International Maritime Organisation, in particular the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973 [12]. Deep seabed mining in ABNJ is regulated by the International Seabed Authority established pursuant to Part XI of the LOSC. Commercial fisheries in ABNJ are more complex: they are managed by an extensive but not comprehensive number of regional fisheries management organisations/agreements (RFMO/As) and, where no such agreements exist, by flag States. These RFMO/As operate within the global context established by the LOSC, the Fish Stocks Agreement [13] and the binding agreements adopted under the auspices of the FAO, the Compliance Agreement [14] and the Port State Measures Agreement [15], as well as the FAO's voluntary Code of Conduct for Responsible Fisheries [16] and its four voluntary International Plans of Action [17]. These sectoral agreements rely mostly upon binding management measures, such as fisheries closures and shipping discharge restrictions adopted by the relevant organisation or conference of the parties. They also utilise voluntary measures such as recommended ships routing and reporting requirements. Generally speaking, compliance

Table 1a Summary of key agreements relevant to marine resources management and the conservation of biodiversity in ABNJ. Short name

Full name

Global framework agreement LOSC (UNCLOS) United Nations Convention on the Law of the Sea (also known as: Law of the Sea Convention) Global sectoral agreements (to manage marine natural resource exploitation and maritime activities) Part XI Agreement relating to the implementation of Part XI of the United Nations Convention on the Agreement Law of the Sea of 10 December 1982 Fish Stocks The United Nations Agreement for the Implementation of the Provisions of the United Nations Agreement Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks International Convention for the Prevention of Pollution from Ships, and other shipping MARPOL and agreements other agreements LC/LP Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 and 1996 Protocol Thereto IWC International Convention for the Regulation of Whaling Global conservation agreements (primarily to protect species, habitats, and/or biodiversity) CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora CMS The Convention on the Conservation of Migratory Species of Wild Animals CBD Convention on Biological Diversity [WHC] [Convention for the Protection of the World Cultural and Natural Heritage] Regional agreement bodies (summarised – see Rochette et al. this issue) RFMO/As Regional fisheries management organisations/agreements RSA/Ps Regional Seas Agreements and Programmes CCAMLR/ATS Convention for the Conservation of Antarctic Marine Living Resources/Antarctic Treaty System

Year/in force

Parties

1982/94

166 (including the European Union – EU)

1994/96

145

1995/01

81

1972 and 78/83 (Annex VI protocol1997/05)

74a

1972/75 (Protocol 1996/ 06)

87 - 42

1946/48

88

1973/75 1979/83 1992/93 1972/75

178 119 193 (including the EU) 190

Various Various 1982/82; 1959/61

Various Various 36

Please cite this article as: Ardron JA, et al. The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements? Mar. Policy (2014), http://dx.doi.org/10.1016/j.marpol.2014.02.011i

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Table 1b Summary of governance bodies associated with the agreements in Table 1a. Short name

Governance/admin. bodies

Comments

LOSC

UN Division for Ocean Affairs and Law of the Sea

For resources management, UNCLOS is supplemented by two implementing agreements, below.

International Seabed Authority (ISA)

The ISA Council and Assembly meet annually.

Regional fisheries management organisations/agreements and Flag States are expected to implement the agreement. No secretariat per se.

There have been two UN review conferences (2006 and 2010).b Parties need not have ratified UNCLOS (e.g. the USA).

International Maritime Organization (IMO)

There are over 50 shipping-related IMO conventions/agreements. Assembly meets every 2 years.

Part XI Agreement Fish Stocks Agreement MARPOL and other agreements LC/LP IWC CITES CMS CBD [WHC] RFMO/As

RSA/Ps

CCAMLR/ATS

Secretariat of the LC/LP is hosted by the IMO (see above)

Consultative Meeting of the Contracting Parties is annual. In 1986 a moratorium on commercial whaling was established, International Whaling Commission with some exceptions for scientific and subsistence purposes. Meets annually. CITES has relatively recently begun to list marine species – see text Autonomous secretariat below. Conference of Parties (COP) every 2–3 years. 7 binding Agreements, 5 of which are marine-related;c 19 Secretariat under the UN Environment Programme (UNEP) voluntary MoUs, of which 6 are marine.d COP at least every 3 years. All UN member States are Parties, except for the United States, Secretariat under UNEP Andorra, Holy See and South Sudan. Bi-annual COP. Secretariat under the UN Educational, Scientific and Cultural Organization (UNESCO) The WHC is currently not applied in ABNJ – see text below. RFMO/As may fall under the UN Food and Agricultural In ABNJ: 5 tuna RFMOs ( þ1 dolphin agreement).e 9 geographic RFMOsf þ2 Organization's (FAO) Constitution, or outside the FAO framework g but with FAO depository functions, or completely outside FAO's advisory. Some have FAO oversight (see comment). framework. Regional Seas Programmes are administered under UNEP. The Four currently extend into ABNJ: Mediterranean (Barcelona Convention); Northeast Noumea Convention Article 2(a)(ii) includes those areas of high Atlantic (OSPAR),South Pacific (Noumea Convention for high seas pockets), and seas which are enclosed from all sides by the 200 nm zones of the Antarctic (CCAMLR – see below). parties. The Convention, administered by a Commission of the same name, is part of the Often treated as an RFMO it also has characteristics of an RSA/P. Antarctic Treaty System. (see text below). Meets annually.

a The combined merchant fleets of these parties constitute approximately 94.73% of the gross tonnage of the world's merchant fleet. http://www.imo.org/About/ Conventions/StatusOfConventions/Documents/Status%20-%202013.pdf [accessed Nov 2013]. b Technically, since the first meeting was not closed, the second was a continuation of the first.; i.e. two parts of a single meeting. c Cetaceans of the Mediterranean Sea, Black Sea and Contiguous Atlantic Area; Small Cetaceans of the Baltic, North-East Atlantic, Irish and North Seas; Seals in the Wadden Sea; African-Eurasian Migratory Waterbirds; Albatrosses and Petrels. d Marine Turtles of the Atlantic Coast of Africa; Marine Turtles and their Habitats of the Indian Ocean and South-East Asia; Cetaceans and their Habitats of the Pacific Island Region; Dugongs and their Habitats; Eastern Atlantic Populations of the Mediterranean Monk Seal; Small Cetaceans and Manatees of West Africa; Sharks. e International Commission for the Conservation of Atlantic Tunas (ICCAT), Indian Ocean Tuna Commission (IOTC), Western and Central Pacific Fisheries Commission (WCPFC), Commission for the Conservation of Southern Bluefin Tuna (CCSBT), Inter-American Tropical Tuna Commission (IATTC); Agreement on the International Dolphin Conservation Programme (AIDCP) (associated with IATTC). f North-East Atlantic Fisheries Commission (NEAFC), Northwest Atlantic Fisheries Organization (NAFO), North Atlantic Salmon Conservation Organisation (NASCO), South-East Atlantic Fisheries Organisation (SEAFO) South Indian Ocean Fisheries Agreement (SIOFA), South Pacific Regional Fisheries Management Organisation (SPRFMO), Convention on Conservation of Antarctic Marine Living Resources (CCAMLR), General Fisheries Commission for the Mediterranean (GFCM), Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (CCBSP). g Western Central Atlantic Fisheries Commission (WECAFC), Fisheries Committee for the Eastern Central Atlantic (CECAF).

can be difficult to ascertain, as only some agreements have established compliance mechanisms [18,19] and, in the case of fisheries and whaling, none have a comprehensive system of compliance control [20]. 2.2. Conservation agreements With respect to conservation, three specific global agreements are of particular relevance to ABNJ: the Convention on Biological Diversity (CBD) [21]; the Convention on the Conservation of Migratory Species of Wild Animals (CMS) [22]; and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) [23] which, as discussed below, has recently restricted trade in some marine species. Unlike the sectoral agreements, which have clear legal competencies to establish regulations binding on their parties, the ability of the conservation agreements to develop binding measures varies. The CBD lacks the regulatory authority to adopt binding regulatory measures, applicable within or beyond national jurisdiction. Under Article 4 (b), the CBD only applies to the human “processes and activities” under the control of States in ABNJ, as opposed to protecting the processes and components of biodiversity that reside

there. Article 22 further requires the CBD to be interpreted and applied consistently with the LOSC. The CBD's legal competence in ABNJ is therefore strictly limited and it must rely on the goodwill of its Parties and other competent organisations to implement its decisions, targets and guidance documents. The CMS is a framework agreement pursuant to which both binding agreements and voluntary memoranda of understanding (MOUs) have been adopted relating to the protection of migratory species and their habitats in the marine environment. Examples include fisheries related bycatch of marine mammals (covered in binding and non-binding agreements; Table 1b), certain seabirds (binding agreements; Table 1b), turtles (non-binding; Table 1b), or sharks (non-binding; Table 1b). However, even in the case of the binding agreements, the CMS like the CBD, is limited in its regulatory competence and must rely on its Parties to bring forward appropriate measures to the relevant sectoral agreements for possible adoption as binding measures. Thus, operationally, a sub-agreement’s legal status is moot, since implementation of measures adopted under it still requires the crafting and adoption of regulatory measures by sectoral agreements. CITES, however, stands apart from CMS and CBD in that it has the authority to adopt binding regulations and compliance

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mechanisms. For this reason, its listing of certain commercial fish species has been controversial with those in the fishing community [24]. However, these are species-specific trade measures only, and CITES does not consider other conservation measures such as gear restrictions or protected areas; for these sorts of options, sectoral cooperation is necessary. At the regional level, the sectoral/conservation agreement subdivision also holds true with RFMO/As primarily concerned with the management of fisheries, while regional seas agreements (RSAs) including those adopted under the UNEP Regional Seas Programme (RSP) and autonomous regional seas agreements such as the OSPAR [25], Noumea [26], and CCAMLR Conventions [27] are primarily concerned with environmental protection issues such as pollution and the protection of regionally endangered species and habitats. As with the global conservation agreements, the regional agreements employ a mix of binding and non-binding measures but generally lack legal competence to manage or constrain key sectoral activities (such as fishing, shipping, or mining) that may pose a threat to the environment. One exception is the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) which is charged with a unique blend of management objectives characteristic of both a RFMO and a regional seas agreement including the obligation to maintain a balance between fisheries interests, scientific research, and conservation. This mixed mandate has produced some unique fisheries measures, such as a de facto moratorium on bottom trawling [28] – the only region to have done so. However, its consensusbased decision-making means that progress can be blocked on issues opposed by a small minority of parties. This has arguably been evident in CCAMLR's troubled, and to date unsuccessful, process to establish two large marine protected areas (MPAs) in the Ross Sea and East Antarctic, which appears to reflect the growing influence of fishing interests within its membership [29]. Despite the number of existing sectoral and conservation agreements, their effectiveness in protecting biodiversity in ABNJ is open to question. Voluntary measures, most commonly used in the conservation context, have often had limited effect [30]. For example, after nearly 14 years, the FAO International Plans of Action have generated minimal engagement. In particular, only 14 countries have submitted management plans for sharks [31], while compliance with these plans remains unknown. Implementation of binding agreements is better, although as the CCAMLR example above indicates, Parties often fall far short of goals and objectives [32,33]. This is particularly evident in RFMO/As where conservation measures agreed to may be binding on States Parties but where non-existent or weak enforcement measures encourage poor compliance. Nevertheless, having an agreement in place, even a voluntary one, is still seen by many as better than no agreement at all [34]. As demonstrated in the context of marine geoengineering, discussed below, voluntary measures may at least provide, among other things, a structure and a process to oversee and, as necessary, further develop binding obligations.

3. Recent agreement specific initiatives Ample evidence exists of several geographic, sectoral, and governance gaps in ABNJ [35–37]. Admittedly, not all of these gaps can be filled using existing agreements and institutions. For example, bioprospecting and subsequent exploitation of marine genetic resources is an issue on which diametrically opposed positions have been taken at the UN. A solution to the management of marine genetic resources in ABNJ is therefore unlikely to be found in adapting an existing instrument or agreement [38]. Nevertheless, as illustrated by the examples discussed below, there are a number of ways in which existing agreements can

and in some cases have begun to expand or interpret their mandates to fill certain governance gaps. 3.1. Adopting new regional agreements to fill geographic gaps Perhaps the most obvious governance gaps in ABNJ are geographic; i.e. ocean areas where certain types of management and conservation agreements or institutions do not yet exist [39]. In the fisheries context, with some notable exceptions,1 many of these gaps have been filled since the adoption of the UN Fish Stocks Agreement through the establishment of new RFMO/As. Beyond fisheries, however, regional agreements with broader conservation-based mandates for ABNJ remain the exception rather than the rule (Table 1b). The opportunity therefore exists for the negotiation of new regional agreements for the protection of the marine environment and/or for existing UNEP RSP/As to expand their conservation-based mandates into ABNJ [40]. 3.2. Adapting to new ocean uses: the example of marine geoengineering Existing agreements can also interpret, adapt or expand their mandate to regulate new activities and ocean uses. For example, regulation of ocean fertilisation and other marine geoengineering activities, previously considered a serious gap, is being addressed by the London Convention and Protocol (LC/LP) and by the CBD. Initially both bodies adopted voluntary measures [41]. However, in 2008, controversy erupted over compliance with the measures in respect of an ocean fertilisation experiment in the Southern Ocean co-led by a German research institution. Although the experiment was initially suspended by the German authorities after the research vessel had set sail, compliance was ultimately confirmed and the experiment went ahead [42]. In 2012, a wholly unauthorised fertilisation experiment was conducted off the west coast of Canada, involving private interests funded by a Canadian First Nations band [43]. In this second instance, the researchers were not linked to a research institution. This latter event, in particular, appears to have hastened work under LC/LP to adopt stronger, non-voluntary measures. In October 2013, Contracting Parties to the LC/LP adopted an amendment to the Protocol covering all marine geoengineering activities. Only listed marine geoengineering techniques are permitted under the Protocol and only for the purposes of legitimate scientific research as verified by a scientific review procedure [44]. Admittedly, the amendment currently lists only ocean fertilisation as a regulated activity. However provision is made for the addition of other marine geoengineering methods as they arise [45]. While technically not marine geoengineering, the Parties to the LC/LP have also adopted amendments to the Protocol regulating the conduct of subseabed carbon capture and storage [41]. These examples highlight the flexibility of an existing instrument to expand to encompass new and emerging human activities. 3.3. CITES: slowly expanding into the marine realm This flexibility is also apparent in developments under the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES). The purpose of CITES is to regulate and in some cases prohibit trade in endangered species. Unlike most 1 A large gap remains with regard to fisheries in the Southwest Atlantic, where a territorial dispute (re the Malvinas/Falkland Islands) is likely to preclude the establishment of an RFMO for several more years. There is also a gap in the Central Arctic Ocean, Northern Indian Ocean, and another between the North and South Pacific RFMOs on their eastern side. However, apparently little fishing occurs in the ABNJ of these regions – for now, at least.

Please cite this article as: Ardron JA, et al. The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements? Mar. Policy (2014), http://dx.doi.org/10.1016/j.marpol.2014.02.011i

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conservation agreements, CITES establishes strict reporting requirements and compliance mechanisms. In recent years, CITES has become involved in the protection of endangered marine species of commercial value, including some species of sea horses, corals, eels, and sharks. Nevertheless, as the opposition to the proposed listings of Bluefin Tuna and various shark species demonstrates, States engaged in those fisheries consider such listings to be inappropriate and have opposed CITES listing on the basis that the regulation of fisheries should remain the exclusive domain of existing fisheries agreements. On the other hand, it has been argued that adding a global trade component would support the regional decisions of the RFMO/As, and hence the invocation of CITES could be mutually beneficial for fisheries management [46]. Notwithstanding the reluctance of some States, CITES is unique in its role as an international multilateral agreement that seeks to address conservation through trade measures. The conservation of marine biodiversity in ABNJ, as, indeed, within national jurisdiction, is a complex problem requiring multi-dimensional solutions. With 177 States Parties, global support for CITES is broad. Moreover, its extensive Appendices, combined with a long history of implementation and compliance, suggest that the potential future role of CITES in the sustainable use and conservation of biodiversity in ABNJ through the listing of new threatened or endangered species in the Appendices should not be discounted. 3.4. World Heritage designations in ABNJ? Another global agreement that could potentially be applied to ABNJ is the 1972 World Heritage Convention [47]. The Convention represents a well-established vehicle for protecting places of outstanding universal value. Although its application has, to date, been limited to land and national waters, there is growing interest in considering how its coverage could be expanded.2 In 2011, the 18th General Assembly of States Parties to the World Heritage Convention endorsed the audit of the Convention's global strategy, Recommendation Five of which called upon the parties to: “reflect upon appropriate means to preserve sites that correspond to conditions of outstanding universal value, which are not dependent on the sovereignty of States Parties” [48]. Indeed, a glance at the definitions of ‘natural’ and ‘cultural’ heritage in Articles 1 and 2 of the Convention shows that its application is not restricted to the protection of heritage in areas under national jurisdiction. Thus it is open to the parties to develop relevant procedures and management and compliance mechanisms in respect of sites in ABNJ. Certainly, a number of issues would need to be resolved such as identification and possible establishment of a responsible body for developing management plans and monitoring compliance, and the range of measures available to address non-compliance. These hurdles are not, however, insurmountable. 3.5. The CBD processes In 2005, the CBD launched its EBSA process (described more fully in [49]) designed to identify ecologically or biologically significant areas in ABNJ (and also under national jurisdiction when invited to do so). In 2008, the CBD Conference of Parties (COP) adopted criteria for the identification of EBSAs [50] and, after a series of regional workshops, the first group of 48 EBSAs was considered at CBD COP 11 in October 2012. At the request of the COP, a letter was sent by the Secretariat to the UNGA on 19 2 This was the topic of an expert advisory group meeting, 18–19 March 2013, supported by UNESCO World Heritage Programme, hosted by IASS, in Potsdam, Germany, and attended by some of the authors.

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March 2013 introducing the EBSAs. This was distributed to state parties by the UN on 17 April 2013 [51]. By systematically describing ecologically important places in most parts of the global ocean, the CBD EBSA process has aided regional capacity building and cooperation and has added significantly to the knowledge base upon which conservation efforts can proceed. In this respect it demonstrates that an existing conservation agreement, even with limited powers, can contribute to the conservation of global marine biodiversity. Significantly, however, while the CBD EBSA process has been impressive in its scope and ambition, the question remains how to encourage the sectoral agreements to incorporate EBSAs into their planning and decision-making. The distribution of a letter between Secretariats is unlikely to be sufficient. EBSAs, like all conservation initiatives in ABNJ, will need strong State ‘champions’ if they are to become accepted outside of the CBD. The CBD has also been active in other ways. It has elaborated guidelines for biodiversity-inclusive environmental impact assessments (IEAs) and strategic environmental assessments (SEAs) specifically for marine and coastal areas, including ABNJ [52]. In 2010, the COP adopted twenty Aichi Biodiversity Targets, two of which are particularly relevant to marine conservation. Target 6 seeks to establish sustainable fisheries by 2020, and Target 11 seeks to protect through “protected areas and other effective areabased conservation measures” at least 10% of coast and marine areas (including ABNJ) by 2020 [53]. This new target replaced the previous (unfulfilled) CBD MPA target of 10% by 2012 [54]. Nevertheless, although the CBD COP has agreed to specific MPA and fisheries targets, as noted above, the CBD lacks the regulatory authority to directly implement them, either within or beyond national jurisdiction. Rather, it relies on compliance through the actions of its Parties nationally and, in ABNJ, through their actions as flag States and their participation in the sectoral agreements. 3.6. United Nations bodies, processes, and resolutions It is worth noting that UN bodies without a direct mandate in resource conservation and/or management can, and do, play a role in protecting biodiversity in ABNJ. For example, the United Nations Environment Programme (UNEP) has published on high seas biodiversity issues raising awareness of the challenges involved [55]. More significantly, however, the UN General Assembly (UNGA) has increasingly played a role in assessing, highlighting and directing conservation needs in ABNJ through its hosting of a number of ocean-related processes, including a periodic review of the Fish Stocks Agreement, the annual Open-ended Informal Consultative Process on Oceans and the Law of the Sea, the BBNJ Working Group on issues related to the conservation and sustainable use of biodiversity in ABNJ, and the annual negotiations of the Sustainable Fisheries and omnibus Oceans and Law of the Sea resolutions. Importantly, the UNGA has passed specific resolutions aimed at protecting marine species and habitats. While UNGA resolutions are generally considered to be ‘soft law’ [56], when properly formulated they can, in practice, be very compelling, as evidenced by the indefinite moratorium on large scale drift net fishing adopted by UNGA Resolutions in 1990–1992 [57]. More recently, in 2006 the UNGA passed resolution 61/105 (and in 2009, 64/72) calling upon States and RFMO/As with the competence to regulate bottom fisheries to adopt and implement four key measures, including area closures to protect vulnerable marine ecosystems (VMEs) [58]. The importance of these UNGA deep sea bottom fishing resolutions should not be under-estimated; despite some inconsistencies and flaws in implementation (briefly outlined below), they have nevertheless sparked the establishment of new RFMOs and have triggered several fisheries closures, many

Please cite this article as: Ardron JA, et al. The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements? Mar. Policy (2014), http://dx.doi.org/10.1016/j.marpol.2014.02.011i

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of them in regions where no closures had ever previously existed. These resolutions may also have played a significant role in the updating of the mandates of and measures adopted by a number of RFMOs, including NEAFC and NAFO in the North Atlantic. An important reason for the apparent success of these resolutions lies in the procedures adopted. The 2006 resolution set out a clear time line requiring a UNGA review of progress in 2009, which then resulted in a second review in 2011. However, even with a clearly stated timeline, the 2011 review found that while some progress had been made, many further actions were required [59]. These findings reflected to a large degree what both environmental non-governmental organisations (NGOs) [60] and scientists [61] had been saying in separate reports; i.e. that the threat from bottom fishing to deep sea ecosystems, although reduced, still remains significant. Problems in the implementation of these measures have included problems in “freezing of the fishing footprint” [62], the selection of areas to be closed, and how best to engage the fishing industry. In particular, while the importance of stakeholder engagement in ensuring compliance is well recognised [63], an overly influential role for the offshore deep sea bottom fishing industry has arguably led to some poor conservation decisions, protecting areas of little interest from both a fishing and a conservation standpoint but failing to protect areas of both conservation and fishing interest [64]. Hence, a more balanced approach to implementation, which incorporates the provision of peer-reviewed science and transparent reporting procedures, is needed. ‘Good practices’ regarding the identification and protection of vulnerable marine ecosystems (VMEs) are now emerging [65] and the lessons learned might also be valuably applied elsewhere, such as in the protection of the EBSAs, discussed above [66].

4. The challenge of integrated area-based measures As captured in the commitments made by States at the United Nations Earth Summits (Rio 1992, Johannesburg 2002 [67] and Rio 2012 [68]), and in CBD Aichi Target 11 (discussed above), broad recognition exists of the value of area-based management tools including MPAs. Indeed, MPAs have been identified by the BBNJ Working Group as one of two key management tools (the other being Environmental Impact Assessment) for achieving ‘coordinated implementation of ecosystem approaches by sectoral bodies and States' [69]. Given that less than half a per cent of ABNJ is currently protected through MPAs [51], they have become something of a touchstone for those involved in the ABNJ debates as a significant indication of governance short-comings. Legally, an ecosystem-based approach including a representative system of comprehensive MPAs that protect a full range of species and habitats falls outside the scope of any single agreement [70]. As Table 2 indicates, no single agreement has the mandate to establish comprehensive networks of MPAs. Sectoral agreements, by definition, apply only to sectoral activities. Conservation agreements, though possessing broader mandates, lack the powers necessary to regulate the major anthropogenic threats. Moreover, only half of the listed agreements have applicable spatial tools, while half do not. This suggests, at the very least, both an opportunity for further application of existing mandates as well as a need to expand the mandates of others to include the availability and application of spatial protection measures. Nevertheless, while more can certainly be done on a sector-bysector basis, the lack of an overarching MPA mandate begs the question as to the efficacy of sectoral and individual area-based designations in contributing to an integrated, ecologically coherent, representative, and comprehensive network of MPAs. While progress in ABNJ has indeed been slow, this may not be entirely

due to governance gaps. Rather it may also be a reflection of the inherent difficulty of creating an ecologically coherent network of MPAs, a task which requires enhanced efforts by existing authorities that go beyond their normal duties [71]. Underlining the difficulty of the task, in areas under national jurisdiction, where conservation efforts have had several decades to mature, despite many national objectives being set and agreement on the urgency of the issues, nowhere has a coherent network of protected areas yet been designated – except perhaps recently in Australia, amidst controversy coming from scientists and stakeholders on both sides of the debate [72–74]. While national networks of MPAs have not yet fully met desired network-level goals such as representativity, replication, connectivity, and adequacy/viability [75], the individual MPAs that have been established within national jurisdictions have often proven to be very effective at rebuilding abundances of local populations of exploited fishes and other species [76]. In practice, the approach within national jurisdictions has been to proceed incrementally, first protecting a few key (often well-known) areas, and then progressively filling in gaps to move toward the goal of representativity. Admittedly this incremental approach is contrary to the objectives of systematic and complementary network planning [77]. However, scheduled prioritisations, considering sites most critical to biodiversity (i.e. irreplaceable) and also under threat (i.e. vulnerable) is at least a pragmatic, if less than perfect, approach that has been used in areas under national jurisdiction [78,79]. Extrapolating to ABNJ, it is arguable that a graduated site-based or sector-by-sector approach that selects areas based on their ecological or biological significance, using for example, the criteria and information developed by the CBD, could be a good place to start. It is unlikely that all ecologically important areas in ABNJ can be protected at once. Thus, an incremental approach could be initiated in ABNJ using sector-specific area-based protection measures, considering critical sites most at risk from the sector's activities. The UN bottom fishing resolutions and the VME rules adopted by RFMO/As are one manifestation of this approach. Closures of whale calving grounds to shipping are another. While increased use of the incremental approach alone would not meet internationally accepted commitments or objectives, it would at least be a worthy beginning. Nevertheless, ultimately only inter-sectoral and cross sectoral/ conservation cooperation that addresses multiple species, habitats and cumulative impacts will provide the means to fully achieve conservation objectives. Since its first meeting in 2006 the BBNJ Working Group has regularly noted the need for existing mechanisms and institutions to move away from the sectoral approach to a multi-sectoral and integrated approach to cooperative management of ABNJ [80]. However, moving beyond sector-specific areabased protection measures represents a significant challenge. The question is how to achieve this shift.

5. The necessity and challenge of cooperation As the above discussion on area-based protection highlights, effective, or more effective, implementation of existing agreements is not enough. What is also needed is more effective coordination between and among the various sectoral and conservation regimes. At its extreme, this requires the identification of institutional synergies for the purpose of fostering activities towards the gradual institutional consolidation of various regimes, as has been achieved in the context of the Basel, Stockholm and Rotterdam Conventions. The fostering of such synergies and their potential cost-saving and legally de-fragmenting effects are worthy of serious examination. However, for reasons of space the discussion here focuses only on

Please cite this article as: Ardron JA, et al. The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements? Mar. Policy (2014), http://dx.doi.org/10.1016/j.marpol.2014.02.011i

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Table 2 Area-based management tools established by international agreements or their implementing bodies. Short name (see Table 1)

Area-based tools in ABNJ

Comments

UNCLOS

None

Provides the legal framework for the sectoral and conservation agreements below. Requires the protection of rare and fragile ecosystems and the habitats of depleted, threatened or endangered species (Article 194.5) but no specific provisions.

Part XI Agreement (ISA)

Areas of Particular Environmental Interest (APEI), Preservation reference zonesa

9 APEIs in the North Central Pacific (Clarion-Clipperton Zone)b

Fish Stocks Agreement

None

Requires the protection of biodiversity in the marine environment (article 5(g)) but no specific provisions. Closed areas are briefly mentioned but not specified in §11(c).

MARPOL and other shipping agreements (IMO) LC/LP IWC CITES CMS CBD [WHC] RFMO/As RSP/As CCAMLR/ATS

Special Areas (SAs) under MARPOLc, Particularly Sensitive Sea 2 SAs in ABNJ (Mediterranean and Antarctic). Ship routing measures could also Areas (PSSAs) under IMOd, Areas To Be Avoided (ATBAs) under be considered as a tool. SOLASe While permitting/approval of activities and projects can have a spatial None component, there is no protected area designation per se. Sanctuaries Two established: Indian Ocean (1979) and Southern Ocean (1994) None CITES focusses on trade. Requires the protection of habitats and removal of obstacles to migration. CMS None has mostly focussed on national jurisdiction, where Range States are expected to cooperatively develop such measures. While CBD actively encourages the establishment of protected areas, it lacks the None authority to do so itself. [World Heritage sites] WHC currently not applied in ABNJ In response to the UNGA bottom fishing resolutions, there are several closures Fisheries closures in place to protect VMEs. 7 MPAs in ABNJ under OSPAR (NE Atlantic) and 1 under the Barcelona MPAs Convention (Mediterranean) MPAsf, fisheries closures, Antarctic Specially Protected Areas 1 offshore MPA, annual fisheries closures, and several coastal ASMAs/ASPAs and Antarctic Specially Managed Areas (ASPAs, ASMAs)g with a marine component (technically ABNJ)

a ISA. Decision of the Council of the International Seabed Authority relating to amendments to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and related matters. 2013; ISBA/19/C/17; Section V.31.6. b ISA. Decision of the Council relating to an environmental management plan for the Clarion-Clipperton Zone. 2012. ISBA/18C/22. http://www.isa.org.jm/files/documents/ EN/18Sess/Council/ISBA-18C-22.pdf [accessed October 2013]. c MARPOL, Annexes 1, 2, 4, 5, 6. d IMO. Revised guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs), 2005; A.982(24). e Safety of Life at Sea Convention (SOLAS), 1974; V.10 and the General Provisions on Ships' Routing. f CCAMLR. General framework for the establishment of CCAMLR Marine Protected Areas, 2011; Conservation Measure 91-04. g The Antarctic Treaty system. Protocol on environmental protection, 1991; Recommendation XVI-10, Annex V.

the challenges to improved operational coordination between and among existing agreements qua existing agreements. This we refer to generically as ‘cooperation’. More than just a valuable approach, cooperation is a legal duty, incumbent on all states [81]. As noted above, States have cooperated in the adoption of a plethora of agreements relevant to the protection of marine biodiversity in ABNJ. However, the governance bodies established by these agreements, be they COPs, meetings of the parties (MOPs), or independent organisations of member States, have largely kept to themselves, developing their own particular culture, vernacular, and ways of framing issues. Nevertheless, the value of inter-regime cooperation has now been recognised [82,83] and some progress has been made in the ABNJ context. This emerging practice provides insights into possible mechanisms for achieving further coordinated and effective implementation of cooperative management in ABNJ.

5.1. Cooperation among ‘siloes’ At the minimalist end of the scale, a State party to two agreements may report at meetings of one on decisions taken at meetings of the other. More formally a representative of one treaty body may attend the meetings of another as observer. Both these approaches have been used increasingly in RFMO/As where even more formal linkages are developing as evidenced, for example, by the three joint meetings of the six tuna RFMOs that have taken place since 2007 [84], and the development of the Regional

Fishery Body Secretariats Network, which includes all active RFMO/As and has met biennially since 1999 [85]. For their part, the conservation agreements have also established inter-regime cooperative mechanisms. For example, the MOU on cooperation between the CITES and CMS Secretariats calls for the development of a range of activities aimed at fostering synergies and strengthening operational cooperation [86]. To that end, the most recent joint work programme encompasses activities around the harmonisation of taxonomy and nomenclature, joint activities regarding species protected by both agreements, administration and fund-raising and outreach and capacity building. Inter- sectoral or cross sectoral/conservation agreement cooperation is also beginning to develop as evidenced, for example, by the cooperation between NEAFC and OSPAR in relation to the designation of MPAs closed to bottom fishing in the North Atlantic. However, as discovered by the OSPAR Commission in its ongoing attempts to develop cooperative management plans for its high seas MPAs, attempting this sort of cross-sectoral cooperation can add considerably to a secretariat's workload [87]. Mechanisms to manage such workload increases are needed to encourage and facilitate future cooperation of this nature. While intra- and event inter-sector cooperation is becoming more commonplace, cooperation between sectoral and conservation agreements, similar to that between NEAFC and OSPAR, that extends beyond like-minded institutions remains rare, effectively compromising implementation of an ecosystem approach. This approach, which is incorporated in a range of treaties including CCAMLR and the Fish Stocks Agreement and was adopted by the

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Parties to the CBD in 2000 [88], requires the adoption of conservation measures designed to protect a broad range of species and habitats from the (potential) impacts of human activities as a whole. As the experience in CCAMLR makes clear, implementing the ecosystem approach is both scientifically and politically challenging. Beyond CCAMLR with its unique ecosystem mandate, implementation of the ecosystem approach is further exacerbated by the need for extensive inter-regime cooperation the level and between sectoral and conservation regimes. 5.2. Balancing sectoral and conservation interests As noted above, the conservation agreements do not have direct competence in the management of maritime activities. Rather, they must rely on the sectoral agreements for implementation of their mandates through regulation of activities that may pose a threat to biodiversity as a whole. In other words, a proposal originating in a conservation agreement must find a government that is also a member of a sectoral agreement willing to shepherd it through the intricacies of the sectoral agreement's regulatory approval process. While finding a government willing to champion the progress of a particular measure can be difficult, it is clear that from the perspective of the conservation agreements, in order to meet their ecosystem-based objectives, cooperation with the sectoral agreements is seen as advantageous and necessary. However, from the perspective of the sectoral agreements, the advantages of cooperating with conservation agreements are perhaps less pressing or apparent. For parties to sectoral agreements to better appreciate the value of such cooperation, three pre-conditions would likely have to be met: (1) broad acceptance by the sectoral agreements that there is a need for and potential benefits for the respective sectors in further conservation actions [89]; (2) recognition of the duty in their underlying legal agreements to cooperate in the coordination of measures with other sectoral agreements; and (3) recognition of a duty to cooperate in the development of measures necessary for the protection and preservation of marine living resources with those bodies that have such expertise, the international conservation agreements. By way of illustration of the complexities involved, in December 2011, the CBD Secretariat convened a joint expert meeting to review the extent to which biodiversity concerns are addressed in existing assessments of fisheries stocks and to propose options to address biodiversity concerns [90]. This meeting brought together representatives of RFMOs, the Fisheries Expert Group of the International Union for Conservation of Nature's Commission on Ecosystem Management and other relevant organisations, processes and scientific groups. The meeting report noted that successive ICES expert reviews have found that there is fairly full attention to the major biodiversity considerations in the RFMO conventions and overarching high level policies but implementation is often highly variable and inadequate [91]. In some cases, the priority that fisheries management agencies could give to the biodiversity commitments in RFMO conventions and policies was constrained by these documents giving explicit primacy to single species Maximum Sustainable Yield (MSY) goals or other harvest goals for the single species [92]. The review also found that limits on knowledge of ecosystems and the fisheries and on capacities for assessments and management can impede the achievement of high level biodiversity goals [93]. A number of recommendations as to how to improve cooperation between the CBD and RFMOs were produced but remain, as yet, unimplemented [94]. In addition to constrained management mandates, the difficulty of balancing sectoral and conservation interests may be further exacerbated by the existence of vested economic interests. Particularly in the fisheries and shipping sectors, private economic

interests often exert a disproportionate influence on State positions. For example, fishing quota allocations in RFMOs typically preference the economic interests of companies, nationals, and vessels under the flag of member states over both the interests of non-member states and of scientifically verified conservation needs. Similarly, with regard to shipping, those flag states with a larger stake in the industry (i.e. more registered tonnage) have greater say in decision-making affecting the industry.3 What they say is, in turn, more heavily influenced by the private economic interests of the industry. At first blush, the situation may appear similar in the seabed mining context. Under the LOSC and its Part XI Implementing Agreement, the seabed beyond national jurisdiction (the Area) is legally regarded as the common heritage of mankind and seabed mining is subject to the establishment of a benefit-sharing mechanism. Thus, in the International Seabed Authority (ISA), there is a broad expectation that mining profits will be shared. Hence there is also an incentive towards approving mining requests, since all Parties stand to gain. In an important distinction, however, commercial exploitation of deep seabed minerals has yet to occur and the details of a benefit-sharing mechanism have yet to be determined. This has provided space for significant work to be undertaken delineating the environmental responsibilities of States and their authorised contractors during the prospecting, exploration, and eventually, exploitation phases. Environmental safeguards have been incorporated into the ISA's regulations governing exploration for polymetallic nodules, polymetallic sulphides and cobalt rich crusts (collectively, the ‘Mining Code’) including requirements for prior environmental impact assessments and monitoring of environmental impact [95–98], and the obligations on sponsoring states and contractors have been significantly clarified by the Sea Bed Disputes Chamber in its Advisory Opinion on Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area [99]. Perhaps the lesson to be learned here is that it is easier to achieve strong environmental protections and to regulate an activity before it actually begins, a luxury rarely shared by the fishing and shipping sectors. Nevertheless, as the experience of the adoption of the Environmental Management Plan for the Clarion Clipperton Zone makes clear, scientifically verified conservation requirements can be challenged by the tenure rights of vested economic interests [100]. The spectre of adverse impacts of vested interests on future decisions taken in the ISA cannot, therefore, be discounted.

6. Conclusion: towards achieving more effective implementation, coordination and cooperation of existing agreements As discussed above, the management regimes created by existing agreements are beginning to expand their mandates to better protect marine biodiversity in ABNJ. Nevertheless, considerable scope still exists for the individual regimes already in place for managing fisheries, shipping, and seabed mining to be even more proactive in addressing the most pressing of the current direct human threats to biodiversity in ABNJ. Continued delay serves only to buy time for those who seek to profit from the 3 IMO's Council is comprised as follows: category (a), 10 States with the largest interest in providing international shipping services; category (b), 10 other States with the largest interest in international seaborne trade; category (c), 20 States not elected under (a) or (b) above which have special interests in maritime transport or navigation, and whose election to the Council will ensure the representation of all major geographic areas of the world. (http://www.imo.org/About/Pages/Structure. aspx).

Please cite this article as: Ardron JA, et al. The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements? Mar. Policy (2014), http://dx.doi.org/10.1016/j.marpol.2014.02.011i

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unsustainable use of the resources [101,102]. However, while single-sector measures have the potential to make a valuable contribution and are a necessary beginning, ultimately only multi-sectoral, integrated, cooperative management can ensure the conservation and long-term sustainable use of marine biodiversity in ABNJ. This requires cooperation both intra and intersectorally as well as between the sectoral and the conservation agreements. To date, cooperation has shown itself to be the Achilles heel of the existing constellation of agreements. Nevertheless, the above discussion suggests a number of mechanisms that could be utilised to improve cooperation and coordination. Undoubtedly there are many others that can and should be developed. However, as a first step mechanisms to manage increased secretariat workloads would facilitate future progress. Beyond this, while secretariats can deliver messages back and forth to their respective COPs, greater cooperation could be achieved through increased use of MOUs between regimes providing for joint meetings, joint work plans, and/or the designation of joint science advisory bodies or processes. Another mechanism to build and streamline cooperation might be one that allowed for a secretariat from one agreement body to officially submit proposals to another. Each of these processes has been utilised within either the sectoral or the conservation agreement families. However, given the obvious synergies and economies of scale to be gained by joining forces and sharing expertise across the conservation-sectoral divide, these possibilities are worth further examination. In this respect a common global mandate from a UNGA resolution (or indeed a new global agreement), could help stimulate progress, particularly if accompanied by funding to incentivize such inter-regime cooperation. For those who argue that the existing agreements are alone sufficient to achieve the protection of biodiversity, they will first have to better demonstrate how inter-agreement cooperation can be achieved, leading to integrated management. Furthermore, it is clear from recent experiences reviewed here that the greater use of existing mechanisms is not itself a panacea or an easy fix. However, in many situations it represents a sensible approach to making the most of what we have, without in any way foreclosing the possibility of the adoption of a better, more comprehensive, integrated approach to the protection of marine biodiversity in ABNJ.

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