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Marine Environment Protection and Biodiversity Conservation: the Application and Future Development of the IMO’S Particularly Sensitive Sea Area Concept

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Marine Environment Protection and Biodiversity Conservation: the Application and Future Development of the IMO’S Particularly Sensitive Sea Area Concept University of Wollongong Thesis Collections University of Wollongong Thesis Collection University of Wollongong Year Marine environment protection and biodiversity conservation: the application and future development of the IMO’s particularly sensitive sea area concept Julian Peter Roberts University of Wollongong Roberts, Julian Peter, Marine environment protection and biodiversity conservation the appli- cation and future development of the IMO’s particularly sensitive sea area concept, PhD thesis, Centre for Maritime Policy, University of Wollongong, 2006. http://ro.uow.edu.au/theses/547 This paper is posted at Research Online. http://ro.uow.edu.au/theses/547 NOTE This online version of the thesis may have different page formatting and pagination from the paper copy held in the University of Wollongong Library. UNIVERSITY OF WOLLONGONG COPYRIGHT WARNING You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorise you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. You are reminded of the following: Copyright owners are entitled to take legal action against persons who infringe their copyright. A reproduction of material that is protected by copyright may be a copyright infringement. A court may impose penalties and award damages in relation to offences and infringements relating to copyright material. Higher penalties may apply, and higher damages may be awarded, for offences and infringements involving the conversion of material into digital or electronic form. Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the IMO’s Particularly Sensitive Sea Area Concept A thesis submitted in fulfillment of the requirements for the award of the degree Doctor of Philosophy from UNIVERSITY OF WOLLONGONG By Julian Peter Roberts MSc (Herriot-Watt University, Edinburgh) Centre for Maritime Policy Faculty of Law University of Wollongong 2006 CERTIFICATION I, Julian Roberts, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor of Philosophy, in the Centre for Maritime Policy, University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution. Julian Roberts 1 August 2006 i I really don’t know why it is that all of us are so committed to the sea, except I think it’s because in addition to the fact that the sea changes, and the light changes, and ships change, it’s because we all came from the sea. And it is an interesting biological fact that all of us have, in our veins the exact same percentage of salt in our blood that exists in the ocean, and therefore, we have salt in our blood, in our sweat, in our tears. We are tied to the ocean. And when we go back to the sea, whether it is to sail or to watch it - we are going back from whence we came. John F. Kennedy, 14 September 1962 ii ABSTRACT In the context of marine environment protection and biodiversity conservation, a number of measures adopted by the International Maritime Organization (IMO) can be viewed as implementing obligations and recommendations of the 1982 United Nations Convention on the Law of the Sea, Chapter 17 of Agenda 21 and the 1992 Convention on Biological Diversity respectively. Pre-eminent among these measures is the particularly sensitive sea area (PSSA) concept; a tool that can be applied in an integrated manner, irrespective of maritime jurisdictional boundaries. However, despite the potential benefits that PSSA designation can deliver, recent practice both within the IMO and by individual member States, has considerably undermined confidence in this emerging concept, calling into question its whole basis as an effective management tool. Recent nominations by individual member States, for PSSA designation, have had the effect of dividing the IMO community over the scope and application of the PSSA concept, resulting in demands by several States to re-examine and constrain the concept. Some observers consider that the manner by which the IMO considers and decides upon applications for PSSA designation has aggravated this situation and have called for a review of the IMO approval process in its entirety. That this should occur at a time when many observers and coastal State members are increasingly realising the potential benefits of the PSSA concept is all the more cause for concern. The focus of this thesis is on the events within the IMO that have led to this lack of confidence arising. The central theme of the investigation is that the current situation can largely be attributed to the actions of certain member States, in their interpretation and implementation of the PSSA concept, and to the current mechanisms adopted by the IMO for reviewing and approving individual submissions for PSSA designation. A number of specific issues can also be identified with the PSSA Guidelines themselves. This thesis presents an examination of coastal State practice with the PSSA concept, and seeks to address how confidence in the measure can be restored, while satisfying both coastal and maritime States’ interests. In undertaking this analysis, the research provides evidence of the value of the PSSA concept, but also demonstrates its limitations. In this regard, the thesis presents a ‘reality check’ which seeks to rationalise some of the heightened expectations with the concept that are apparent in the current debate. The research argues that States may seek to designate PSSAs more for their ‘iconic status’ than for any demonstrable environmental benefits that may be realised. Such an approach will contribute to the current lack of confidence in the measure and could conceivably result in a complete and irrevocable loss of confidence in the measure by the shipping community. On the basis of the empirical analysis presented and the comparison with alternative protection strategies, this thesis draws conclusions over the value of the PSSA concept and makes recommendations for the future development of the concept. A number of specific amendments are suggested for the PSSA Guidelines themselves, as well as changes to the institutional arrangements for reviewing and approving PSSA nominations. iii ACKNOWLEDGEMENTS The undertaking of this thesis has been an intensely personal experience. The research was largely undertaken on a part time basis, while I worked for the New Zealand Maritime Safety Authority, as an environmental advisor. While undertaking any research under such circumstances clearly has the potential to create stress, this drawback was more than compensated for by the unique circumstances I found myself in, as a New Zealand delegate to the IMO for five years. Rather than observe the mechanics and procedures from outside the organisation, as many researchers do, I actively participated in developments that are the focus of this research. In my view this has contributed to a more insightful study of this particular aspect of the IMO’s work. Achieving the completion of this thesis, within the existing time frame, would not have been possible without the guidance and support of my two supervisors and mentors, Professor Martin Tsamenyi and Professor John Morrison. Their insightful comments and suggestions and above all their friendship throughout the process, gave me constant support and encouragement to continue the research and to explore areas that I had not fully considered. A large number of other people have provided invaluable assistance throughout the duration of this research. Moreover, the undertaking of this research has led to the establishment of a number of friendships which I hope will endure well beyond the completion of this thesis. Special thanks must be made to both Lindy Johnson and Kristina Gjerde, my two ‘PSSA gurus’ and PhD mentors, who provided a constant sounding board for ideas and who also provided comments and constructive criticisms on draft manuscripts for publication. Thanks are extended to Sian Pullen, Simon Walmsley and Alison Champion of WWF- UK and to David Johnson of the Southampton Institute, for their thoughts on the application of the PSSA concept; to Phillip Fox at the World Conservation Monitoring Centre in Cambridge, for his assistance with the provision of GIS data; to Joquan Trinanes of NOAA for his assistance in obtaining and disseminating vessel tracking data; to the many State delegates and Secretariat staff of the IMO who assisted me, or who contributed to the meetings I attended. Particular thanks are extended to the many staff of the New Zealand Maritime Safety Authority who supported me in the undertaking of this research and who made the regular visits to the IMO possible. Thanks also to all those who assisted with the circulation and completion of the research questionnaire that formed part of this research, in particular, to David Wilcox of the Southampton Institute. To Chris Rahman for his friendship and support while visiting Wollongong, and to Myree Mitchell for all her help in organising my visits. Special thanks goes to Heather Mills for her diligent proof reading of the final draft of this thesis. Above all, my deepest and sincerest thanks go to my wife, Janet, who has provided unquestioned love, support and encouragement throughout the duration of this PhD, who has given me the ability to complete this work, and who has tirelessly proof read chapter after
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