The Problem

The world's oceans are in peril. A few key facts paint a disturbing picture:

• • 89.5 percent of the world's fish stocks are either overfished at a biologically unsustainable level (31.4 percent) or fully fished (58.1 percent).Footnote ¹ That compares with 1974, when the share of fish stocks that were overexploited was 10 percent. It is estimated that up to 13 percent of global fisheries have collapsed.Footnote ²

• • 60 percent of the world's major marine ecosystems that underpin livelihoods have been degraded or are being used unsustainably.Footnote ³

• • Climate change is having a much greater effect on the world's oceans than on land. The consequent heating and acidification of the oceans—as they absorb 26 percent of the CO² and 93 percent of the heat that we humans pump out—is making “profound alterations of the ocean's physics and chemistry manifested in ocean warming and acidification, which together are predicted to result in ocean deoxygenation, sea level rise, a slowdown of ocean circulation and changes in the structure of marine ecosystems and ocean primary production.”Footnote ⁴ This includes loss of calcification in reefs and shellfish. Fish embryos and larvae are more sensitive than juveniles and adults to elevated CO².Footnote ⁵

• • Approximately 20 percent of the world's coral reefs, which are the nurseries of tropical coastal fish stocks and a storehouse of biodiversity, have been lost due to human impacts and another 20 percent are degraded.Footnote ⁶ A scientific study published in March this year reported that two-thirds of Australia's iconic Great Barrier Reef is dead, something they had not expected to see for another thirty years.Footnote ⁷ According to one expert, without coral reefs

Role of ABMTs and MPAs

Area based management tools (ABMTs) such as marine protected areas (MPAs) are recognized by scientists and the international community as essential to promote the conservation and management of oceans and fisheries.Footnote ⁹ They have been shown to enhance population resilience to climate-driven disturbance.Footnote ¹⁰ In 2005 the Conference of the Parties to the Convention on Biological Diversity 1992 adopted a target MPA coverage of 10 percent of coastal and marine areas by 2012. In 2010 it extended the target deadline to 2020.Footnote ¹¹ By then the global MPA coverage was just over 1 percent. Recent statistics are more encouraging, if only slightly: a UNEP report released in November 2014 found that 3.4 percent of the global ocean is now protected.Footnote ¹² In any event 10 percent is not enough. A recent review of the scientific literature suggests that the figure needs to be 30 percent.Footnote ¹³

What is a MPA? There is no one accepted definitive scientific or legal definition for the term “marine protected area.” One commonly used is the IUCN's 2008 definition:Footnote ¹⁴

MPAs can be “no-take” areas or allow restricted exploitation and activities, or combine both. Zones can be horizontal as well as vertical.

To date no one convention establishes “a” or “the” legal framework for MPAs in coastal states’ maritime zones or areas beyond national jurisdiction. There is a patchwork (and patchy) legal framework, which includes the Convention on Biological Diversity and its 1995 Jakarta Mandate concerning coastal and marine areas, the RAMSAR wetlands convention, the World Heritage Convention, the International Convention for the Prevention of Pollution from Ships 1973 and 1978 Protocol (MARPOL 73/78), regional seas agreements,Footnote ¹⁶ and regional fisheries management organizations (RMFOs).Footnote ¹⁷ Four treaties make specific provision for MPAs in areas beyond national jurisdiction.Footnote ¹⁸ UNCLOS contains only one provision for the creation of special areas—in Article 211(6)(a) to prevent vessel pollution within the coastal state's EEZ. These must be approved by the International Maritime Organization.

A handful of high seas MPAs already exist.Footnote ¹⁹ The first was the no-take South Seas Orkney Islands Southern Shelf MPA designated by CCAMLR in 2009.Footnote ²⁰ Seven high seas MPAs were created under the Convention for the Protection of the Marine Environment of the North-East Atlantic (the OSPAR Convention) as a network in the North-East Atlantic in 2010 and 2012, but do not regulate fishing because fisheries are not within the scope of that treaty.Footnote ²¹ They are however complemented by fisheries measures taken by the relevant RMFO, the North East Atlantic Fisheries Commission (NEAFC) (Article 4(1) of OSPAR makes provision for recommendations on fisheries measures to be made to relevant international and regional organizations). The FAO lists six high seas areas where RMFOs, regional seas programs, and an association of fishing companies have introduced restricted fishing areas in the high seas under their remit. Footnote ²² Most recently, in October 2016, the largest no-take MPA to date was established by CCAMLR in the Ross Sea in Antarctica. At 600,000 square miles it is twice the size of Texas, and provides for a thirty-five-year expiry date.

With more than two-thirds of the world's oceans beyond national jurisdiction, the anticipated treaty can play a crucial role in meeting targets for global MPA coverage and establishing the first comprehensive global legal framework.

Progress to Date

One of the most difficult issues to arise in the PrepComs is what the relationship should be between the new treaty and existing international instruments, RMFOs, and regional seas bodies. Resolution A/RES/69/292 directed that the treaty “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies.” This has led to much discussion of what “not undermining” might require.Footnote ²³ To some extent this is a question of semantics, perception, and, no doubt, politics. In PrepCom III (March 27–April 7, 2017) some states rejected the idea of an oversight mechanism to review MPAs under other instruments,Footnote ²⁴ rejected any reporting requirement or assessment function, and proposed that any new treaty body defer the adoption of measures to relevant regional or sectoral organizations and not impose obligations on third parties.Footnote ²⁵ Other stakeholders argued for global-level cooperation with an institutional framework for monitoring, review, and long-term planning.Footnote ²⁶ Chair Duarte summed it up in plenary by proposing three options: a global model, a hybrid model, and a regional and sectoral model.Footnote ²⁷

It is difficult to see how anything other than a global model would be practical, given that networked MPAs and ocean spatial planning across maritime boundaries are essential to provide protected corridors for species and ecosystems. As often said, fish don't observe boundaries. We need joined-up thinking to fill coverage gaps, to step in where regional bodies do not have a complete mandate across all biological diversity, and to act when they are unable or unwilling to do so. That is not to say that cooperation and coordination should not be the starting point. It must be. Getting all stakeholders on board, including fishermen, has long been identified as key in the design and enforcement of effective MPAs.Footnote ²⁸ But, as the African Group very sensibly pointed out, if no gaps existed under the current regional schemes, there would have been no need to establish the PrepCom. It cannot be denied that RMFOs and regional seas bodies have failed to arrest the decline in the world's fisheries stocks and marine ecosystems.

Having said that, one important subject discussed separately from ABMTs and cross-cutting issues was institutional arrangements. Cost, efficiency, and the need to avoid duplication of functions unsurprisingly came up in discussion.Footnote ²⁹ Choices about institutional structures and funding will affect the effectiveness of any global mechanism and its relationship to other instruments and bodies, as will choices about decision-making procedures for creating MPAs. Topics covered included who or what should recommend the establishment of a MPA (e.g., the CBD model of Conference of the Parties and Subsidiary Body on Scientific, Technical and Technological Advice?),Footnote ³⁰ whether only states should be able make submissions or other stakeholders as well,Footnote ³¹ the scientific and evidential approach required (precautionary principle, best available evidence), and consensus or qualified majority voting.Footnote ³² A qualified majority voting or reverse consensus procedure is likely to make it easier to establish MPAs.

What appeared to be missing was consideration of how individuals will be made subject to the law governing high seas MPAs and how they might be enforced, other than reference to the “polluter pays” principle. Enforcement is likely to depend on traditional flag state mechanisms, although these have been notoriously weak in ocean governance. Some states mooted the establishment of a centralized compliance mechanism and state responsibility,Footnote ³³ but it is unclear whether any consideration was given to imposing legal obligations directly on individuals. An international inspectorate like that mooted for deep sea bed mining might be explored. Ideally any solution will also build in a form of universal jurisdiction, allowing or requiring any state to act even where there is no connecting nationality or territoriality link to the offender or vessel. This would go some way beyond the FAO's 2001 voluntary plan of action for IUU fishingFootnote ³⁴ and the 2009 Port State Measures Agreement. Enforcement will depend on treaty participation, although there has been some discussion about provision for nonparty participation.Footnote ³⁵ Experience shows that even MPAs within domestic jurisdictions can be very difficult and expensive to enforce, which is another reason why wide stakeholder commitment to MPAs in ABNJ is so important. Innovative solutions will need to be explored, including the employment of satellite-tracking technology,Footnote ³⁶ deterrent bonds (rejected by the International Tribunal for the Law of the Sea (ITLOS) in The Volga prompt release case),Footnote ³⁷ reverse standards of proof,Footnote ³⁸ summary penalty fines enforceable across national jurisdictions, and law enforcement cooperation.

Concluding Remarks

Turning to the conference theme, “what international law values,” in this context we are talking about making law rather than international law with some kind of a priori existence and inherent moral or ethical content. What the finished law will value is what those involved in the negotiations value. As stressed by the Holy See during PrepCom III, this is a political choice,Footnote ³⁹ to put aside differences and protect and conserve our world's oceans before it is too late.