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The incongruity between the ecosystem approach to high seas marine protected areas and the existing high seas conservation regime

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Aegean Review of the Law of the Sea and Maritime Law

Abstract

Many of the conferences and meetings which were held about high seas conservation in the 2000s called for the establishment of high seas marine protected areas (HSMPAs) based on an ecosystem approach, they also called for the conservation of deep sea features. However, jurisdictional limitations to components on the high seas can obstruct both the effective conservation of high seas ecosystems and the effective implementation of the ecosystem approach in HSMPAs. This article examines the restriction of jurisdictional nature with regard to implementing HSMPAs based on the ecosystem approach. The states that took part in the Convention on Biological Diversity (CBD) debated the restriction of the jurisdictional limitations to high seas conservation under the convention. After reviewing the calls for, and defining HSMPAs, this study examines the implications of internal discussion within the CBD system on the effectiveness of HSMPAs. This study has also examined whether such implications can also apply to other relevant conventions, including regional fisheries management agreements which have recently employed HSMPAs.

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Notes

  1. Preamble of the United Nations Convention on the Law of the Sea (adopted on 10 December 1982, entered into force on 16 November 1994) 1833 UNTS 396 (LOSC).

  2. The high seas are defined as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State or the archipelagic waters of an archipelagic State.” Article 86 LOSC. Strictly speaking, this definition does not exclude the Area from the high seas although it may be controversial to include the Area in the high seas.

  3. The recommendations from the first World Conferences on National Parks and the following four World Parks Congresses are available in Adams (1964), at 375–386; and National Parks Centennial Commission (1973); McNeely and Miller (1984); IUCN (1993), viii+260; IUCN (2005).

  4. The directly related recommendations on marine affairs are 3. Marine and Coastal Protected Areas, and 4. Antarctica. See details in J. A. McNeely, and K. R. Miller (eds.) ibid, at 765–776.

  5. Churchill and Lowe (1999) at 160.

  6. This Congress recommended all nations “to establish large sanctuaries in the open ocean in order to collect further knowledge of those areas beyond the limits of national jurisdiction and to protect the Common Heritage of Mankind.” ‘The Common Heritage of Mankind’ may mean all natural heritage of open ocean rather than mineral resources on the international seabed. J. A. McNeely, and K. R. Miller (n. 3) at 767.

  7. The directly related recommendations on marine issues are 10: Policy Linkages between Relevant International Conventions and Programmes in Integrating Protected Areas in the Wider Landscape/Seascape, 22. Building a Global System of Marine Coastal Protected Areas Networks, 23. Protecting Marine Biodiversity and Ecosystem Processes through Marine Protected Areas beyond National Jurisdiction. See Recommendations of the Vth IUCN World Parks Congress, Benefits Beyond Boundaries (n. 3).

  8. See WPC Recommendation V. 23 Protecting Marine Biodiversity and Ecosystem Processes through Marine Protected Areas beyond National Jurisdiction ibid, at 194.

  9. Ibid, at 194–195. See further discussions on the CBD meetings in 4.

  10. Paragraph 6 in the WPC Recommendation V. 23 ibid, at 196.

  11. Ibid.

  12. Ibid, at 194–196.

  13. See ‘Conclusions and summary record of the expert workshop on managing risks to biodiversity and the environment on the high seas, including tools such as marine protected areas’ in Thiel and Koslow (2001) at 15.

  14. Ibid.

  15. Ibid, at 17.

  16. “Maintain the productivity and biodiversity of important and vulnerable marine and coastal areas, including in areas within and beyond national jurisdiction (Paragraph 32(a)); develop and facilitate the use of diverse approaches and tools, including the ecosystem approach, the elimination of destructive fishing practices, the establishment of marine protected areas consistent with international law and based on scientific information, including representative networks by 2012, time/area closures for the protection of nursery grounds and periods, proper coastal land use and watershed planning and the integration of marine and coastal areas management into key sectors (Paragraph 32(c)).”

    Resolution 2—Plan of Implementation of the World Summit on Sustainable Development, ‘Report of the World Summit on Sustainable Development’ (Johannesburg, South Africa 26 August–4 September 2002) UN Doc A/CONF.199/20*, at 24–25.

  17. CBD Recommendation VIII/3: marine and coastal biodiversity: review, further elaboration and refinement of the programmed of work, SBSTTA (2003) UNEP/CBD/COP/7/3.

  18. CBD Decision VII/5: Marine and Coastal Biological Diversity (2004) UNEP/CBD/COP/7/21/.

  19. Ibid, para. 31.

  20. CBD Decision VIII/24: Protected Areas (Curitiba, Brazil, 2006) UNEP/CBD/COP/8/31 225. The paragraph 39 is read as “Recognizes that there is a need to achieve a more integrated approach to establishing and managing marine protected areas beyond national jurisdiction, consistent with the ecosystem approach.”

  21. The UN Fish Stocks Agreement refers to the UN Agreement for the Implementation of the Provisions of the United Nations 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 (adopted on 4 August 1995, entered into force on 11 December 2001) 2167 UNTS 88 (UNFSA).

  22. See paragraph 83 UNGA Res. 61/105 (March 2007); paragraph 98 UNGA Res. 62/177 (Feb 2008); and paragraph 103 UNGA Res. 63/112 (Feb 2009); paragraph 116 UNGA Res. 64/72 (March 2010).

  23. 83. Calls upon regional fisheries management organizations or arrangements with the competence to regulate bottom fisheries to adopt and implement measures, in accordance with the precautionary approach, ecosystem approaches and international law, for their respective regulatory areas as a matter of priority, but not later than 31 December 2008:

    (a) To assess, on the basis of the best available scientific information, whether individual bottom fishing activities would have significant adverse impacts on vulnerable marine ecosystems, and to ensure that if it is assessed that these activities would have significant adverse impacts, they are managed to prevent such impacts, or not authorized to proceed;

    (b) To identify vulnerable marine ecosystems and determine whether bottom fishing activities would cause significant adverse impacts to such ecosystems and the long-term sustainability of deep sea fish stocks, inter alia, by improving scientific research and data collection and sharing, and through new and exploratory fisheries;

    (c) In respect of areas where vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold water corals, are known to occur or are likely to occur based on the best available scientific information, to close such areas to bottom fishing and ensure that such activities do not proceed unless conservation and management measures have been established to prevent significant adverse impacts on vulnerable marine ecosystems;

    (d) To require members of the regional fisheries management organizations or arrangements to require vessels flying their flag to cease bottom fishing activities in areas where, in the course of fishing operations, vulnerable marine ecosystems are encountered, and to report the encounter so that appropriate measures can be adopted in respect of the relevant site; Ibid. This can be seen as the UNGA called RFMOs for establishment of the new HSMPAs. The Code in paragraph 5 refers to the Code of Conduct for Responsible Fisheries of the Food and Agriculture Organization of the United Nations.

  24. See para. 73 and 74 in UNGA Res. 59/24 (February 2005).

  25. Ibid, para. 73.

  26. UNGA 61/65 (March 2006).

  27. UNGA 63/79 (May 2008) at 7.

  28. UNGA 65/68 (March 2010) at 9–10.

  29. UNGA 66/119 (30 June 2011) at 2.

  30. Ibid, at 6.

  31. See Baker et al. (2001)

  32. With respect to the discussion within the Ad Hoc Open-ended Informal Working Group also see Scovazzi (2011).

  33. See the report of the 2011 UNICPOLOS meeting. UNGA 66/186 (July 2011).

  34. IUCN (2007).

  35. CBD Decision V/6, Ecosystem Approach, in Annex III. Decisions Adopted by the Conference of Parties to the Convention on Biological Diversity at its Fifth Meeting (Nairobi, Kenya, May 2000) UNEP/CBD/COP/5/23, at 103–104.

  36. This statement notes "The application of the precautionary principle is equally a central part of the ecosystem approach." OSPAR Commission, ‘Statement on the Ecosystem Approach to the Management of Human Activities-“Towards an Ecosystem Approach to the Management of Human Activities”’, First Joint Ministerial Meeting of the Helsinki and OSPAR Commissions (JMM) (Bremen German 25–26 June 2003) Agenda item, ANNEX 5, Ref. §6.1, http://www.ospar.org accessed on 6 February 2012.

  37. Richardson (2006).

  38. UNICPOLOS, ‘Marine Environment, Marine Resources and Sustainable Use: Implementing the Ecosystem Approach,’ submitted by the delegation of Norway, fourth meeting, UNGA, 20 May 2003, A/AC.259/7, at 1.

  39. FAO, ‘Implementing the Ecosystem Approach to Fisheries, Including Deep-sea Fisheries, Biodiversity Conservation, Marine Debris and Lost or Abandoned Fishing Gear,’ Committee on Fisheries, December 2006, COFI/2007/8.

  40. Ecosystem dynamics is defined as “those intrinsic ecological functions through which an ecosystem becomes self-regulating, self-sustaining, and capable of recovery from external forces (for example, damaging storm events). These intrinsic processes may cause continual change in biotic composition and structure at specific localities. Collectively, these changes represent internal flux, rather than substantive and permanent alteration of the ecosystem regionally.” ‘Biology Online,’ http://www.biology-online.org/dictionary/Main_Page accessed on 4 October 2008.

  41. Parsons (2005), at 406.

  42. In case of fisheries, see Lack et al. Available at http://www.wwf.org.au/publications/orange_roughy/ accessed on 4 October 2008, at 55.

  43. Parsons and Molenaar insisted that the target and associated resources management in the CCAMLR should be considered as the ecosystem approach. See Parsons, ibid and Molenaar (2002), at 575.

  44. The ecosystem approach itself includes the application of the precautionary principle. Thus, this definition does not contain the precautionary principle separately. See Parsons, at 402. This definition is based on existing definitions on MPAs by IUCN, CBD, FAO and OSPAR Commission.

  45. Jones (2007), at 31.

  46. See ibid.

  47. Ibid, at 2.

  48. Ibid, at 7.

  49. UNGA 63/79 (May 2008), at 7.

  50. Article 94 LOSC. On the high seas, flag states have complete legislative jurisdiction and somehow incomplete enforcement jurisdiction on their ships. Enforcement jurisdiction of flag states on the high seas is incomplete; for example, because all states can seize a pirate ship, which have different nationality, on the high seas. Article 105 LOSC.

  51. See Article 87(2) and 194 LOSC.

  52. Article 89 LOSC.

  53. Article 4 CBD:

    “Subject to the rights of other States, and except as otherwise expressly provided in this Convention, the provisions of this Convention apply, in relation to each Contracting Party: (a) in the case of components of biological diversity, in areas within the limits of its national jurisdiction; and (b) in the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction.”

    The Convention on Biological diversity (adopted on 22 May 1992) (entered into force on 29 December 1993) 1760 UNTS 79 (CBD).

  54. The IUCN Environmental Law Center (1993), at 30.

  55. See CBD Decision II/8 Preliminary consideration of components of biological diversity particularly under threats and action which could be taken under the Convention (1995) UNEP/CBD/COP/2/19; see CBD Decision VII/5 Marine and Coastal Biological Diversity (2004) UNEP/CBD/COP/7/21.

  56. See paragraph 29–30, UNEP/CBD/COP/7/21, ibid, at 137.

  57. See paragraph 39 of CBD Decision VIII/24 Protected Areas (2006) UNEP/CBD/COP/8/31, at 225.

  58. Paragraph 18 and 25 of CBD Decision VII/28 Protected Areas (Article 8(a) to (e)) (2004) UNEP/CBD/COP/7/21, at 345–346.

  59. The two initial studies are contained in CBD, ‘Scientific Information on Biodiversity in Marine Areas beyond the Limits of National Jurisdiction,’ Ad Hoc Open-ended Working Group on Protected Areas (May 2005) UNEP/CBD/WG-PA/1/INF/1 and CBD, ‘The International Legal Regime of the High Seas and the Seabed beyond the Limits of National Jurisdiction and Options for Cooperation for the Establishment of Marine Protected Areas (MPAs) in Marine Areas beyond the Limits of National Jurisdiction, Convention on Biological Diversity,’ Ad Hoc Open-ended Working Group on Protected Areas (2005) UNEP/CBD/WG-PA/1/INF/2.

  60. CBD, ‘Options for Cooperation for the Establishment of Marine Protected Areas in Marine Areas beyond the Limits of National Jurisdiction,’ Ad Hoc Open-ended Working Group on Protected Areas (2005) UNEP/CBD/WG-PA/1/2, at 2–6.

  61. Ibid para. 16(a), at 5.

  62. Ibid; Earth Negotiation Bulletin ‘Working Group Highlights: Monday, 13 June 2005’.

  63. Article 8. In situ Conservation: “Each Contracting Party shall, as far as possible and appropriate:

    (a) establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity; (b) develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity; (c) regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use; (d) promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings; (e) promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas; (f) rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies; (g) establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health; (h) prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species; (i) endeavour to provide the conditions needed for compatibility between present uses and the conservation of biological diversity and the sustainable use of its components; (j) subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices; (k) develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations; (l) where a significant adverse effect on biological diversity has been determined pursuant to Article 7, regulate or manage the relevant processes and categories of activities; and (m) cooperate in providing financial and other support for in situ conservation outlined in subparagraphs (a) to (l) above, particularly to developing countries.”

  64. Article 2 CBD.

  65. Ibid.

  66. Article 7(a) CBD.

  67. See Article 8(d) CBD.

  68. See discussions on a possible list of the ‘activities’ in Allen (2001) 563, at 653.

  69. According to FAO’s definition, MPA means “a protected marine intertidal or subtidal area, within territorial waters, EEZs or in the high seas, set aside by law or other effective means, together with its overlying water and associated flora, fauna, historical and cultural features. It provides degrees of preservation and protection for important marine biodiversity and resources; a particular habitat (e.g. a mangrove or a reef) or species, or sub-population (e.g. spawners or juveniles) depending on the degree of use permitted. The use of MPAs (for scientific, educational, recreational, extractive and other purposes including fishing) is strictly regulated and could be prohibited.” Report of the Secretary-General, ‘Oceans and the Law of the Sea’ (2003) GA 58/65, para. 224; FAO, ‘FAO Fisheries Glossary.’ Available at http://www.fao.org/fi/glossary accessed on 6 March 2012.

  70. See Article 2 CBD.

  71. CBD Decision VIII/24, UNEP/CBD/COP/8/31 (n 57) 7–9; CBD Decision IX/20. Marine and coastal biological diversity, COP (May 2008) UNEP/CBD/COP/DEC/IX/20 para. 19. See further details at the end of this section.

  72. CBD Decision VIII/24, UNEP/CBD/COP/8/31 ibid. The paragraph 39 is read as “Recognizes that there is a need to achieve a more integrated approach to establishing and managing marine protected areas beyond national jurisdiction, consistent with the ecosystem approach.”

  73. See Vierros and Ogolla (2003), at 2–3; Vierros et al. (2001); CBD, ‘Marine and Coastal Biodiversity: Review, Further Elaboration and Refinement of the Programme of Work—Study of the Relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the Conservation and Sustainable Use of Genetic Resources on the Deep Seabed (Decision II/10 of the Conference of the Parties to the Convention on Biological Diversity)’ (2003) UNEP/CBD/SBSTTA/8/INF/3/Rev.1, paragraph 70 and 87.

  74. CBD Decision VIII/24, UNEP/CBD/COP/8/31, at 9.

  75. Annex I Scientific Criteria for Identifying Ecologically or Biologically Significant Marine Areas in Need of Protection in Open-ocean Waters and Deep-sea Habitats and Annex II Scientific Guidance for Selecting Areas to Establish a Representative Network of Marine Protected Areas, Including in Open Ocean Waters and Deep-Sea Habitats, CBD Decision IX 20. UNEP/CBD/COP/DEC/IX/20.

  76. “By indicating where or how each type of provision applies, article 4 does not innovate, but simply applies existing rules of international law to the subject matter of the Convention.” The IUCN Environmental Law Center (n. 54) at 30.

  77. NEAFC was established by the Convention on future multilateral co-operation in North-East Atlantic Fisheries (adopted on 18 November 1980, entered into force on 17 March 1982) 1285 UNTS 129 (NEAFC);SEAFO was established by the Convention on the conservation and management of fishery resources in the South East Atlantic Ocean (adopted on 20 April 2001, entered into force on 13 April 2003) 2221 UNTS 189 (SEAFO Convention); NAFO was established by the Convention on future multilateral co-operation in the Northwest Atlantic fisheries (adopted on 24 October 1978, entered into force on 1 January 1979) 1135 UNTS 369 (NAFO Convention); GFCM was established by Agreement for the Establishment of the General Fisheries Commission of the Mediterranean (adopted on 6 November 1997, entered into force on 29 April 2004) 2275 UNTS 157 (GFCM Agreement).

  78. See Article 31(7) of the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISA, ISBA/6/A/18, July 2000, and Article 33(6) of the Regulations on Prospecting and Exploration for Cobalt-Rich Ferromanganese Crusts in Area, ISA (November 2009) ISBA/16/C/WP.2.

  79. ISA, ‘Rationale and recommendations for the establishment of preservation reference areas for nodule mining in the Clarion-Clipperton Zone—Summary outcomes of a workshop to design marine protected areas for seamounts and the abyssal nodule province in Pacific high seas,’ (Hawaii, USA 23–26 October 2007), ISBA/14/LTC/2, at 5.

  80. Gianni (2004).

  81. NEAFC, ‘Meeting of NEAFC Working Group on the Appraisal of Regulatory Measures for Deep-Sea Species,’ (Bergen, Norway 11–13 June 2002), at 17.

  82. Ibid 3.

  83. See NEAFC, ‘NEAFC Working Group to Examine Historic Catches of Deep-Sea Species and Effort Deployed in Catching these Species by Contracting Parties, Reporting from the Meeting Held in the NEAFC Headquarters’ (London, UK, March 2003).

  84. NEAFC, ‘Proposal from Norway to Consider Mechanisms to Protect Vulnerable Habitats Including Deep-Sea Species by Prohibiting Trawling on Identified Seamount in the Regulatory Area,’ in ‘Report of the 23rd Annual Meeting of the North-East Atlantic Fisheries Commission’ (8–12 November 2004) Volume I: Main Report 39–41. Also see NEAFC, ‘Proposal for a Recommendation for the Protection of Vulnerable Deep-water Habitats’ Agenda item 14 (2004) AM2004/57.

  85. NEAFC, ‘Deep Water Habitats Vulnerable to Fishing Activities. Closing of Areas for Closing in the Regulatory Area by the Delegation of Norway,’ Agenda item 14 (2004) AM2004/57, at 1–5.

  86. ‘Report of the 23rd Annual Meeting of the NEAFC’ (n. 84) at 40.

  87. NEAFC, ‘Recommendation for the Protection of Vulnerable Deep-water Habitats by Denmark (in respect of the Faroe Islands) and Greenland, Estonia, The European Community, Iceland, Norway and Poland,’ adopted in the 23rd Annual Meeting of NEAFC (2006) Management Measures 2006.

  88. Ibid.

  89. Ibid.

  90. Ibid.

  91. NEAFC, ‘Annex I—Recommendation VII: 2008, Recommendation by The North East Atlantic Fisheries Commission in Accordance with Article 5 of the Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries at its Annual Meeting in November 2007 to Adopt a Recommendation for the Protection of Vulnerable Deep-Water Habitats in the NEAFC Regulatory Areas,’ in ‘Report of 26th Annual Meeting of the North-East Atlantic Fisheries Commission’ (12–16 November 2007), vol II—Annexes 13; NEAFC, ‘Recommendation by the North-East Atlantic Fisheries Commission in Accordance with Article 5 of the Convention on Future Multilateral Cooperation North-East Atlantic Fisheries at its Annual Meeting on 10–14 November 2008 to Adopt the Following Recommendation for the Protection of Vulnerable Deep-Water Habitats in the NEAFC Regulatory Area’ (2009) NEAFC Recommendation XIV-2009.

  92. NEAFC, ‘NEAFC closes large areas to bottom fisheries on the Mid-Atlantic Ridge to protect Vulnerable Marine Ecosystems in the High Seas of the North East Atlantic’ Press Release (27 April 2009); NEAFC ‘Map of Vulnerable Marine Ecosystem Closures.’ Available at http://neafc.org/page/3239 accessed on 12 March 2012.

  93. See ‘Report of the 23rd Annual Meeting of the NEAFC’ (n. 84) at 39.

  94. Ibid. The OSPAR Convention area is exactly same as the NEAFC Regulatory Area.

  95. Ibid. The area of the Rockall Bank was closed to all fishing except longlines to protect haddock in 2003. See NEAFC Recommendation IV from the 22nd Annual Meeting, Regulating Measures for the Protection of Haddock in ICES Area Vib for 2003 (2003) NEAFC Recommendation IV-2003.

  96. NEAFC, ‘Report of 24th Annual Meeting of the North-East Atlantic Fisheries Commission (14–18 November 2005) NEAFC Commission Report AM/2005, at 26.

  97. See Press Release (20 November 2006) NEAFC 57, http://www.neafc.org. Also see NEAFC Recommendation by the North East Atlantic Fisheries Commission at its Annual Meeting in November 2006 to Adopt Conservation and Management Measures by Closing Certain Areas in the Regulatory Area in Order to Protect Deep-water Corals (2007) NEAFC Recommendation IX-2007.

  98. Recommendation IX-2007 ibid.

  99. NEAFC Recommendation by the North-East Atlantic Fisheries Commission in Accordance with Article 5 of the Convention of Future Multilateral Cooperation in North-East Atlantic Fisheries at its Annual Meeting in November 2009 to Adopt Conservation and Management Measures by Closing Certain Areas on the Hatton Bank, Rockall Bank, Logachev Mounds and West Rockall Mounds in the Regulatory Area in Order to Protect Vulnerable Marine Ecosystems from Significant Adverse Impacts in 2010 (2010), NEAFC Recommendation VIII-2010; NEAFC Recommendation by the North-East Atlantic Fisheries Commission in Accordance with Article 5 of the Convention of Future Multilateral Cooperation in North-East Atlantic Fisheries at its Annual Meeting in November 2010 to Adopt Conservation and Management Measures by Closing Certain Areas on the Hatton Bank, Rockall Bank, Logachev Mounds and West Rockall Mounds in the Regulatory Area in Order to Protect Vulnerable Marine Ecosystems from Significant Adverse Impacts in 2011 (8–12 November 2010) NEAFC Recommendation 14: 2011.

  100. Ibid.

  101. See Section 8. Conservation and Management Measures to Further the Objectives of the Convention in SEAFO, ‘Report of the 3rd Annual Meeting of the Commission’ (2006) at 5.

  102. SEAFO, ‘Conservation Measures 06/06 on the Management of Vulnerable Deep Water Habitats and Ecosystems in the SEAFO Convention Area’ (Approved 10/2006).

  103. Ibid.

  104. SEAFO, ‘Conservation Measure 11/07: laying down conditions for the resumption of fishing activities in areas subject to closure through conservation measure 06/06’ (Approved 2010).

  105. SEAFO Conservation Measures 06/06.

  106. Ibid.

  107. Ibid.

  108. Ibid.

  109. “Recognizing that RFMO/As today face new challenges and responsibilities, and while the governance of some RFMO/As has been improved by incorporating the principles and provisions of newly developed international instruments and tools, including, inter alia, those related to ecosystem considerations in fisheries management, other RFMO/As remain to be so improved and, to that end, there is a need for political will to further strengthen and modernize RFMO/As to ensure that such challenges and responsibilities are effectively addressed;… 4. We will work within RFMO/As of which the State or REIO we, respectively, represent is a member, to review and strengthen them, where necessary, in a manner that does not overlap or duplicate the mandate of the other existing RFMO/As, to: A. Implement a decision-making process which:…(ii) incorporates the precautionary approach; (iii) incorporates ecosystem considerations in fisheries management with due consideration to the work of relevant scientific bodies initiatives;”

    Conference on the Governance of High Seas Fisheries and the UN Fish Agreement—Moving from Words to Action (St. John’s Newfoundland and Labrador, Canada May 1–5, 2005). Available at http://www.dfo-mpo.gc.ca/fgc-cgp/decalaraion_e.htm accessed on 16 April 2009.

  110. NAFO, ‘NAFO Starts a Reform Process, 2005 Annual Meeting Press Release’ (23 September 2005).

  111. Ibid.

  112. The ecosystem approach is specified in the preamble of the amendment as “the Contracting Parties COMMITTED to apply an ecosystem approach to fisheries management in the Northwest Atlantic that includes safeguarding the marine environment, conserving its marine biodiversity, minimizing the risk of long term or irreversible adverse effects of fishing activities, and taking account of the relationship between all components of the ecosystem.” See Annex 17. Amendment to the Convention on Future Multilateral Cooperation (2007) GC Doc. 07/4.

  113. Annex 4. EAF Interim Measures (proposed by Canada), FC Doc. 05/7 in NAFO ‘Meeting Proceedings of the General Council and Fisheries Commission for 2005/2006’, at 140.

  114. Annex 13. Proposal on Precautionary Closure Four Seamount Areas based on the Ecosystem Approach to Fisheries, FC Doc. 06/5 in NAFO ‘Report of the Fisheries Commission, 28th Annual Meeting’ (18–22 September 2006) NAFO/FC Doc. 06/14, at 48–49.

  115. ‘Report of the Fisheries Commission, 28th Annual Meeting’ ibid, at 9.

  116. Ibid.

  117. Paragraph 5 of Article 14 of the NAFO Conservation and Enforcement Measures, NAFO.FC Doc.07/1.

  118. Ibid. NAFO, ‘NAFO Takes Stock-Further Progress made on International Fisheries Management,’ 2010 Annual Meeting Press Release (Halifax, Canada 24 September 2010).

  119. Para. 6 of Article 14 NAFO.FC Doc.07/1, ibid.

  120. Para. 9 of Article 14, ibid.

  121. NAFO, ‘Northwest Atlantic Fisheries Organization Conservation and Enforcement Measures’ (updated on 17 December 2009) NAFO/FC Doc. 10/1, at 12–13.

  122. Ibid, at 12.

  123. Ibid, at 13–14.

  124. Ibid.

  125. Article III (1), GFCM Agreement.

  126. Article III (2) GFCM Agreement.

  127. GFCM, ‘Establishment of Fisheries Restricted Areas in Order to Protect the Deep Sea Sensitive Habitats’ (2006) REC/GFCM/30/2006/3.

  128. Ibid.

  129. GFCM, 'the Establishment of a Fisheries Restricted Area in the Gulf of Lions to Protect Spawning Aggregations and Deep Sea Sensitive Habitats' (2009) Recommendation GFCM/33/2009/1 A, at 1.

  130. Ibid, at 2.

  131. See GFCM, ‘Report of the Twenty-fifth Session of the GFCM’ (Sliema, Malta September 2000) FAO GFCM Report. No. 25.

  132. During the 2002 meeting, it was pointed out that it is too early to establish a Working Group for the ecosystem approach. In the 2005 meeting, the Sub-Committee on Marine Environment and Ecosystem (SCMEE) noted that implementation of this approach is very complicated. GFCM, ‘Report of the Twenty-Seventh Session of GFCM’ (Rome, Italy, 19–22 November 2002) FAO GFCM Report. No. 27 5 and GFCM, ‘Report of the Twenty-ninth Session of GFCM’ (Rome, Italy 21–25 February 2005) FAO GFCM Report. No. 29, at 6.

  133. OSPAR Commission, ‘Summary Record of the Meeting of the OSPAR Commission 2003’ (2003) OSPAR 03/17/1-(A-B)-E, at 15.

  134. Joint Nature Conservation Committee (2004), at 2.

  135. See Summary Records of the Meeting of the OSPAR Commission from 2003 to current, OSPAR Commission, available at http://www.ospar.org. The Biodiversity Committee has two sub groups including the working group on Marine Protected Areas and Species and Habitats. The Biodiversity Committee is a sub-organisation of the OSPAR Commission. See OSPAR Commission, ‘Organization—Committee and Working Groups of the OSPAR Commission.’ Available at http://www.ospar.org/eng/html/welcome.html accessed on 12 March 2012; Gubbay (2004) at 4.

  136. OSPAR Commission, ‘Ministerial Meeting of the OSPAR Commission-Bremen Statement’ Draft Summary Record, OSPAR 03/17/1-E, Annex 9, para. 2.1, at 2.

  137. The ecosystem approach is specifically incorporated in Annex V to the 1992 OSPAR Convention. According to Article 3(1)(iv) combined with Article 4 of Annex V, the OSPAR Commission can apply the integrated ecosystem approach in relation to cooperation with other international organisations to “complement and support” fisheries management and the regulation of marine transportation. The interest of the OSPAR Commission in the ecosystem approach for the management of activities other than fishing and marine transportation appeared when the North Sea Ministerial Meeting on Fisheries and the Environment was held in 1997 within the OSPAR. Article 3(1)(b)(iv), Annex V: “subject to Article 4 of this Annex, to aim for the application of an integrated ecosystem approach”; Simcock (2006), at 1–2.

  138. OSPAR Commission (n. 36) Ref. §6.1.

  139. See preamble, OSPAR Commission, ‘the 2003 Strategies of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic’ (Bremen, June 2003) Reference number 2003-21. Available at http://www.ospar.org accessed on 30 December 2011.

  140. The definition of the OSPAR Network of Marine Protected Areas includes “any other area in the maritime area outside the jurisdiction of the Contracting Parties which has been included as a component of the network by the OSPAR Commission.” OSPAR 03/17/1-E, Annex 9 (n. 136) para. 1.1, at 2.

  141. OSPAR Commission, ‘2005/2006 Report on the Status of the OSPAR Network of Marine Protected Areas,’ Biodiversity Series (2006). Available at http://www.ospar.org accessed on 30 December 2011, at 10.

  142. See Ibid.

  143. OSPAR Commission, Guidelines for the Identification and Selection of Marine Protected Areas in the OSPAR Maritime Area, 2003, Reference number: 2003-17, OSPAR 03/17/1-E, Annex 10, at 2; Also see Guidelines for the Management of Marine Protected Areas in the OSPAR Maritime Area, the OSPAR Commission, 2003, Reference number: 2003-18.

  144. OSPAR Commission, ‘2007/2008 Summary Record of Meeting of the OSPAR Commission’ (Brest, France June 2007) OSPAR 08/24/1-E, 18; OSPAR Commission, ‘Summary Record of the Meeting of the Working Group on Marine Protected Areas, Species and Habitats (MASH)’ (Horta, the Azores October 2006) MASH 06/9/1-E, at 23.

  145. OSPAR 08/24/1-E, ibid.

  146. Ibid, at 18–19.

  147. OSPAR Commission, ‘OSPAR Decision 2010/1 on the Establishment of the Milne Seamount Complex Marine Protected Area’ (Bergen, Norway, September 2010) Annex 34 (Ref. M5.2); OSPAR Commission, ‘OSPAR Decision 2010/4 on the Establishment of the Antialtair Seamount High Seas Marine Protected Area’ (Bergen, Norway, September 2010) Annex 40 (Ref. M5.2); OSPAR Commission, ‘OSPAR Decision 2010/3 on the Establishment of the Altair Seamount High Seas Marine Protected Area’ (Bergen, Norway, September 2010) Annex 38 (Ref. M5.2); OSPAR Commission, ‘OSPAR Decision 2010/2 on the establishment of the Charlie-Gibbs South Marine Protected Area’ Bergen (September 2010) Annex 36 (Ref. M5.2).

  148. OSPAR Commission, ‘2010 Status Report on the OSPAR Network of Marine Protected Areas,’ Biodiversity Series, 2011. Available at http://www.ospar.org accessed on 22 February 2012, at 23.

  149. ‘Conclusions and Summary Record of the Expert Workshop on Managing Risks to Biodiversity and the Environment on the High Seas, Including Tools such as Marine Protected Areas’ in Thiel and Koslow (eds.) (n. 13) at 16.

  150. Ibid.

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    Jung-Eun Kim

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Kim, JE. The incongruity between the ecosystem approach to high seas marine protected areas and the existing high seas conservation regime. Aegean Rev Law Sea 2, 1–36 (2013). https://doi.org/10.1007/s12180-012-0023-4

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