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Regulatory and Governance Gaps in the International Regime for The Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction Marine Series No. 1 IUCN Environmental Policy and Law Papers online Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction Kristina M. Gjerde, IUCN Global Marine Program, Warsaw, Poland With the assistance of: Harm Dotinga, Netherlands Institute for the Law of the Sea, Utrecht University, School of Law, The Netherlands Sharelle Hart, IUCN Environmental Law Centre, Bonn, Germany Erik Jaap Molenaar, Netherlands Institute for the Law of the Sea, Utrecht University, School of Law, The Netherlands Rosemary Rayfuse, Faculty of Law, University of New South Wales, Sydney, Australia Robin Warner, Australian National Centre for Ocean Resources and Security, University of Wollongong, Australia IUCN Environmental Policy and Law Papers online – Marine Series No. 1 The designation of geographical entities in this book, and the presentation of the material, do not imply the expression of any opinion whatsoever on the part of IUCN, the German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (BMU) or the Dutch Ministry of Agriculture, Nature and Food Quality concerning the legal status of any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. The views expressed in this publication do not necessarily reflect those of IUCN, the German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, the Dutch Ministry of Agriculture, Nature and Food Quality, nor of the authors´ affiliated institutions. This publication has been made possible in part by funding from the German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety and the Dutch Ministry of Agriculture, Nature and Food Quality. The authors would like to thank the German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, the Dutch Ministry of Agriculture, Nature and Food Quality and the IUCN Environmental Law Centre for their support for this paper. Published by: IUCN, Gland, Switzerland in collaboration with the IUCN Environmental Law Centre, Bonn, Germany Copyright: © 2008 International Union for Conservation of Nature and Natural Resources Reproduction of this publication for educational or other non-commercial purposes is authorized without prior written permission from the copyright holder provided the source is fully acknowledged. Reproduction of this publication for resale or other commercial purposes is prohibited without prior written permission of the copyright holder. Citation: Kristina M. Gjerde et al. (2008). Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction. IUCN, Gland, Switzerland. x + 70. ISBN: 978-2-8317-1050-1 Cover design by: IUCN Environmental Law Centre Cover image: IUCN Photo Library © Jim Thorsell Layout by: DCM Druck Center Meckenheim GmbH Produced by: IUCN Environmental Law Centre Download from: IUCN Environmental Law Centre website at www.iucn.org/law A catalogue of IUCN publications is also available from: IUCN (International Union for Conservation of Nature) Publications Services Rue Mauverney 28 1196 Gland Switzerland Tel +41 22 999 0000 Fax +41 22 999 0010 [email protected] www.iucn.org/publications Table of Contents Executive Summary vii 1 Introduction 1 1.1 Background and purpose of the study 1 1.2 Definitions of regulatory and governance gaps 1 1.3 Outline of the gap analysis 1 2 Summary Tables 3 Table 1: Summary of Regulatory and Governance Gaps at the Global Level 3 Table 2: Summary of Regulatory and Governance Gaps at the Regional Level 5 3 Complete Tables 7 Table 1: Regulatory and governance gaps at the global level 7 General 7 Existing Activities 9 Fishing 9 Shipping 11 Dumping Of Wastes And Other Matter 12 Marine Scientific Research (MSR) 13 Bioprospecting For MGR 14 Constructing Artificial Islands and Installations 15 Laying Cables And Pipelines 16 Archaeology 17 Military Activities 18 Overflight 18 New and emerging Activities 19 Table 2: Regulatory and governance gaps at the regional level 22 Arctic 22 Antarctic 22 Atlantic 23 Indian Ocean 27 Mediterranean 28 Pacific 28 All oceans (bluefin tuna) 32 Annexes 33 Annex I: Actual or potential impacts of activities (existing and emerging) on marine biodiversity in ABNJ 33 Existing activities 33 Fishing 33 Shipping 34 Dumping of wastes and other matter 34 Laying cables and pipelines 35 Marine scientific research (MSR) 35 Bio-prospecting 35 v Constructing artificial islands and installations 36 Military activities 36 Overflight 36 Archaeological/ salvage activities 37 Emerging Activities 37 Activities proposed to sequester CO2 37 Exploration and exploitation of seabed mineral resources 39 Energy facilities (e.g. wave, solar) 41 Open ocean aquaculture 41 Deep sea tourism (e.g. submersibles to vents, coral reefs, wrecks) 41 Annex II: Key global agreements and UN bodies relevant to marine biodiversity in ABNJ 42 Key Global Agreements 42 United Nations Convention on the Law of the Sea (UNCLOS), 1982. in force 1994 42 Agreement for the Implementation of the Provisions of UNCLOS Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (referred to as the Fish Stocks Agreement or UNFSA), 1995, in force: 2001 48 Convention on Biological Diversity (CBD), 1992 50 Convention on the Conservation of Migratory Species of Wild Animals (CMS), 1979, in force 1983 51 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973, in force: 1975 52 International Whaling Convention (IWC), 1946, in force: 1948 53 International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), Annexes I, II, IV, V and VI, 53 International Convention for the Control and Management of Ships' Ballast Water and Sediments (Ballast Water Convention), 2004, not yet in force 54 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, (London Convention), 1972, in force: 1975 55 Protocol to the London Convention, 1996, in force: 2006 56 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (FAO Compliance Agreement), 1993, in force: 2003 56 UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), in force: 2001 57 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) and its Protocol on Strategic Environmental Assessment (SEA Protocol), Espoo Convention in force: 1997 57 KEY UN AND OTHER BODIES 59 Annex III: List of acronyms and abbreviations used in the report 63 Endnotes 65 vi Executive Summary In April, 2008, the United Nations Ad Hoc Open- Biological Diversity (CBD) and the United ended Informal Working Group to study issues relating Nations Fish Stocks Agreement (UNFSA) such as to the conservation and sustainable use of marine the ecosystem approach and the precautionary biological diversity beyond areas of national jurisdiction approach are consistently incorporated and/or (UNWG BBNJ) will convene to discuss a range of applied in all existing global and regional topics critical to the health of the 64% of the world instruments that apply to ABNJ. ocean that lies in areas beyond national jurisdiction • The absence of detailed international rules and (ABNJ). One of the key items on the agenda will be standards to implement modern conservation “Whether there is a regulatory or governance gap principles for existing activities (marine scientific and, if so, how it should be addressed.” research (MSR), bio-prospecting, laying of cables and pipelines and construction of various types of This paper identifies regulatory and governance gaps installations); unregulated fisheries (e.g. some at a global level (see Table 1) and at a regional level discrete high seas fish stocks, sharks), and new and (see Table 2). The terms regulatory and governance emerging activities (e.g. ocean fertilization, climate gaps are defined in section 1.2. change mitigation techniques, and potential construction and operation of floating energy and Our knowledge of the marine environment and its aquaculture facilities). components, including marine biodiversity, in ABNJ and the impacts of human activities thereon is • The lack of regulation to manage increasing limited. While fishing activities are widely recognized impacts from traditional uses such as shipping, as the most significant threat to marine biodiversity MSR and military activities (e.g. underwater noise, in ABNJ, the individual and cumulative impacts of weapons testing) in line with modern conservation the full range of human activities is still largely principles. unknown. The actual or potential impacts of human • The lack of specific requirements for modern activities (existing and emerging) on marine conservation tools such as environmental impact biodiversity in ABNJ are summarized in Annex I. assessments (EIAs), monitoring and reporting,
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