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The Proliferation of Marine Protected Areas Under International Law, European Union Law and Japanese Law

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Contemporary Issues in Environmental Law

Part of the book series: Environmental Protection in the European Union ((ENVPROTEC,volume 5))

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Abstract

In this chapter, I describe existing international and regional rules on marine protected areas (MPAs), which are established to protect marine living resources and the marine ecosystem, including habitat, fauna and flora. First, I explain the international legal framework, including the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD) and relevant regulations adopted by the International Maritime Organization (IMO); second, I explain European Union (EU) law, which prescribes MPAs; third, I briefly mention the legal framework for protecting the marine environment in Japan and fourth, I attempt to clarify the limitations of the existing legal framework from an implementation perspective and briefly mention the actions that could be taken for effective protection of the marine environment.

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Notes

  1. 1.

    Decision adopted by the Conference of Parties to the Convention on Biological Diversity at its tenth meeting, UNEP/CBD/COP/DEC/X/2, Annex, Target 11.

  2. 2.

    Decision adopted by the Conference of Parties to the Convention on Biological Diversity at its seventh meeting, UNEP/CBD/COP/DEC/VII/5, para.12. There are several expressions for marine protected areas, e.g. International Union for conservation of nature, IMO and OSPAR; however, as a specific expression for the protected areas in the ocean and because of the openness of the CBD as a multilateral convention, here I chose the expression of the CBD.

  3. 3.

    IMO presented the list of ‘special areas’ in its Homepage (http://imo.org). According to the list, the Mediterranean Sea, Baltic Sea, Black Sea, Red Sea and ‘Gulfs’ Sea were adopted as ‘special areas’ on 2 November 1973.

  4. 4.

    For the precise decision-making process for the EU, see: V. Frank (2007), pp. 162–165. In this passage, the problems of shared competence between EU and its member states are also clearly explained.

  5. 5.

    For example, the decision adopted by the Conference of Parties to the Convention on Biological Diversity at its seventh meeting, UNEP/CBD/COP/DEC/VII/5, para.3.

  6. 6.

    M. Nordquist/S. Rosenne/A. Yankow, United Nations Convention on the Law of the Sea 1982 A Commentary, Vol. IV, Martinus Nijhoff, Dordrecht, 1990, p. 36.

  7. 7.

    This paragraph extends the concept of the protection and preservation of the marine environment from marine pollution to environment per se. See ibid., p. 68.

  8. 8.

    Ibid., p. 73.

  9. 9.

    MARPOL 73/78 designates ‘special areas’ based on each source of element, such as, for example, prevention of pollution by oil (Annex I), control of pollution by noxious liquid substances (Annex II), or prevention of pollution by garbage from ships (Annex V).

  10. 10.

    GA Resolution 59/24 of 17 November 2004, in paragraph 73.

  11. 11.

    The outcome of the first meeting of the Ad Hoc Open-ended Informal Working Group is published in the UN Homepage. See, Report of the 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, A/61/65 of 20 March 2006, (available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/277/50/PDF/N0627750.pdf?OpenElement, accessed on 16 May 2015).

  12. 12.

    See A/63/79, Annex ‘Joint statement of the Co-Chairpersons of the 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’, para.54 (available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/344/16/PDF/N0834416.pdf?OpenElement, accessed on 29 April 2015).

  13. 13.

    The third meeting of the Ad Hoc Open-ended Informal Working Group was held in 2010 and published the Recommendation to the General Assembly. In that Recommendation, they insisted only on the importance of Marine Protected Areas cited in the Johannesburg Plan of Implementation of the World Summit on Sustainable Development. See, Recommendation of the 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, para.17–18, A/65/68 of 17 March 2010 (available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/277/20/PDF/N1027720.pdf?OpenElement, accessed on 16 May 2015).

  14. 14.

    The latest outcome of the meeting of the Ad Hoc Open-ended Informal Working Group was published on the homepage of the United Nations, Ocean & Law of the Sea (available at: http://www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm, accessed on 29 April 2015).

  15. 15.

    See, for example, SBSTTA 1 Recommendation I/8, Scientific, technical and technological aspects of the conservation and sustainable use of coastal and marine biological diversity, Annex to Recommendation I/8, para. 9, which mentioned the importance of setting up a network of Marine and Coastal Protected Areas (available at: http://www.cbd.int/recommendation/sbstta/default.shtml?id=6990, accessed on 29 April 2015).

  16. 16.

    All decisions and relevant annexes of the Conference of the Parties of the CBD are published on the homepage of the CBD, at: https://www.cbd.int/cop/ (accessed on 16 May 2015).

  17. 17.

    UNEP/CBD/COP/DEC/VII/5, para. 16.

  18. 18.

    Ibid., para.18.

  19. 19.

    Ibid., para.29–31.

  20. 20.

    UNEP/CBD/COP/DEC/VII/28, para.25.

  21. 21.

    For example, the decision adopted by the Conference of Parties to the CBD at its eighth meeting VIII/24, para.11, UNEP/CBD/COP/DEC/VIII/24, 15 June 2006.

  22. 22.

    Decision adopted by the Conference of Parties to the CBD at its tenth meeting, UNEP/CBD/COP/DEC/X/2, Annex, Target 11.

  23. 23.

    Decision adopted by the Conference of Parties to the CBD at its eleventh meeting, Decision XI/24 Protected Areas, para.1 (b), UNEP/CBD/COP/DEC/XI/24.

  24. 24.

    Ibid., para.5, 10 and 11.

  25. 25.

    All EU Member States are members of the IMO, however, the EU is not a member of it. There was a legal discussion about the consistency of the EU law and IMO rules. See the Judgement of the Court, Case C-308/06, European Court Reports 2008 I-4057 and J. Klabbers (2011), pp. 126–127.

  26. 26.

    Resolution A982 (24), Annex, para.1, in: http://www.imo.org/blast/blastDataHelper.asp?data_id=25322&filename=A982(24).pdf (accessed on 29 April 2015). There are also Special Areas that can be designated by the IMO; however Special Areas are not always designated in order to protect marine living resources, but rather they are designated to prevent ship-source pollution. This is the reason why I mention here only the PSSA.

  27. 27.

    Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas, IMO’s Resolution A/720(17), 6 November 1991, IMO’s Resolution A/720(17), 6 November 1991.

  28. 28.

    Ibid., para.4.4.1–4.4.11.

  29. 29.

    Ibid., para.6.1.

  30. 30.

    The measures taken in the PSSAs or Special Areas under the IMO ‘would be broader than that adopted in Article 211 of the UNCLOS’. See more details, Birnie (2014), pp. 376–377.

  31. 31.

    The Wadden Sea, Western European Waters, Canary Islands, The Baltic Sea area, The Strait of Bonifacio. See the Homepage of the IMO, in: http://www.imo.org/OurWork/Environment/PSSAs/Pages/Default.aspx (accessed on 29 April 2015).

  32. 32.

    Council Decision 98/249/EC, 7 October 1997, in OJ L 104, 4 April 1998.

  33. 33.

    In 2010, OSPAR adopted 6 MPAs beyond national jurisdiction. For more details, see: N. Matz-Lück and J. Fuchs (2014), p. 159.

  34. 34.

    OSPAR adopted a North-East Atlantic Environmental Strategy in 2010, and in this Strategy, the MSFD was mentioned. See more details in Leeuwen et al. (2012), pp. 639–640.

  35. 35.

    The OSPAR regional plan to improve adequacy and coherence of MSFD implementation 2014–2018.

  36. 36.

    Article 2(1) of the Protocol.

  37. 37.

    UNEP, Support to the Barcelona Convention for the Implementation of the Ecosystem Approach, including the establishment of MPAs in open seas areas, including deep seas, Final report, April 2012, p. 24.

  38. 38.

    OJ L 206/7, 22.7.1992.

  39. 39.

    OJ L 103/1, 25.4.1979.

  40. 40.

    According to Article 4(4), once a site of Community importance has been adopted in accordance with the procedure laid down in paragraph 2, the member states concerned shall designate that site as a special area of conservation.

  41. 41.

    Although there exists good motivation for regional sea conventions such as the Barcelona Convention or OSPAR to implement MSFD as I explain in a previous part of this chapter, they seem to present some difficulties from the perspective of the institutional function of each regional organisation. For more details, see Leeuwen et al. (2012), pp. 638–642. For the Barcelona Convention, see Ibid., Footnote 37, p. 24.

  42. 42.

    Ministry of Environment, Marine Biodiversity Conservation Strategy, March 2011, p. 34.

  43. 43.

    In Japan, marine protected areas are recognised very slowly. However, National Parks are internationally recognised as ‘substantial’ marine protected areas. See, S. Seino (2011), p. 787.

  44. 44.

    Act No. 161 of 1957. Last version Act No. 47 of 2009 (http://www.env.go.jp/en/laws/nature/law_np.pdf). There are also Quasi-National Parks and Prefectural Natural Parks that fall within the Natural Park System based on the Natural Park Law.

  45. 45.

    Act No. 85 of 1974, Last version Act No. 69 of 2014.

  46. 46.

    See the Homepage of the Ministry of the Environment: http://www.env.go.jp/en/nature/nps/wanca.html (accessed on 8 April 2015).

  47. 47.

    Act No. 313 of 1951.

  48. 48.

    Act No. 77 of 1996, last amendment Act No. 77 of 2007.

  49. 49.

    In May 2011, the Headquarters for Ocean Policy approved ‘How to Establish marine protected areas in Japan’, which summarised Japan’s stance on marine protected areas. See, Basic Plan on Ocean Policy, April 2013, p. 8.

  50. 50.

    Nikkei Evening Edition, 9 May 2014, p.2.

  51. 51.

    Ibid. There are no official reports that show exactly which areas are designated as areas of particular importance.

  52. 52.

    ‘The Multiple Use integrated Marine Management Plan for Shiretoko World Natural Heritage Site’, p.1. This plan is published on the Homepage of the Ministry of the Environment.

  53. 53.

    Ibid., p. 2.

  54. 54.

    Ibid., p. 5.

  55. 55.

    Y. Sakurai (2011), p. 146.

  56. 56.

    As an example for public/prefectural initiatives to establish marine protected areas, S. Seino discusses the promotion of new marine protected areas in Tushima, in Nagasaki. See S. Seino (2011), pp. 788–789.

  57. 57.

    For example, see A/63/79, Annex ‘Joint statement of the Co-Chairpersons of the 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, para. 20, 23 and 24 (available in: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/344/16/PDF/N0834416.pdf?OpenElement, accessed on 29 April 2015).

  58. 58.

    For more on the problems of marine protected areas and freedom of navigation, see F. Spadi (2000), pp.288–289. For more on the marine protected areas under the High Seas, which were proposed by Portugal based on OSPAR and the rights of third parties, see M.C. Robeiro (2010), pp. 197–200.

  59. 59.

    The EU is also a contracting party of the Barcelona Convention, whose member states are not only European states but also many states from North Africa and the Middle East. The EU supports activities adopted by the Barcelona Convention by way of its funding, and the EU’s influence over the activities of the Convention should not be underestimated.

  60. 60.

    Ibid., para.21.

  61. 61.

    See, for example the discussion in the UN Ad Hoc Open-ended Working Group.

  62. 62.

    There are similar considerations regarding protection of marine biological diversity beyond areas of national jurisdiction. See, E. Druel/K.M. Gjerde (2014), p. 95.

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  1. School of Law, Meiji University, 1-1 Kanda Surugadai, Chiyodaku, Tokyo, 101-8301, Japan

    Chie Sato

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  1. Kunitachi, Tokyo, Japan

    Yumiko Nakanishi

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Sato, C. (2016). The Proliferation of Marine Protected Areas Under International Law, European Union Law and Japanese Law. In: Nakanishi, Y. (eds) Contemporary Issues in Environmental Law. Environmental Protection in the European Union, vol 5. Springer, Tokyo. https://doi.org/10.1007/978-4-431-55435-6_9

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