Duncan Currie 3 November 2008

1. The draft Greenpeace Implementing AgreementWorkshop on Governance of Marine Areas Beyond National Jurisdiction Management Issues and Policy Options Establishing New Management Institutions or Enhancing Existing Institutions to Govern Marine Areas Beyond National JurisdictionNovember 3-5, 2008, Singapore Duncan Currie 3 November 2008

2. Some shortcomings “The Law of the Sea is fundamentally flawed: inequality between states is increased, law and order in the seas is only marginally improved, and the concept of common heritage of mankind is ineffectively implemented.” The present Convention is not the end, but rather the beginning, of a long process which must lead to a more rational and efficient use of our environment and towards a more just and equitable world order.” Arvid Pardo, “Before and After”, 46 Law and Contemporary Problems, 95-105, 104-105

3. Regulatory, Governance Gaps • No explicit mandate for the protection, conservation and sustainable use of living resources in the high seas • Poor harmonization and coordination among RFMOs, MEAs, FAO etc. No central body – ICP, UNGA filling a gap. • No implementation tools, such as a mandate to establish marine reserves and environmental impact assessments in ABNJ; patchy implementation of ecosystem and precautionary approaches; • Weak compliance and enforcement mechanisms, as well as monitoring, control and surveillance of extractive or potentially polluting activities; very poor flag State implementation; • Few rules governing access to and the sharing of benefits derived from high seas genetic resources; and • No mechanism to assess and regulate new and emerging human activities on the high seas.

4. Problems in Practice • ocean fertilisation - London Convention and Protocol • high seas fishing esp bottom fishing • noise, seismic surveys, etc. • arctic – reducing ice cover, navigation, exploitation, conflict • bioprospecting, science, exploitation • continental shelf mining – effects on high seas • climate change/acidification • whaling and associated activities

5. History EU proposed in 2006: “we are facing a “governance gap” in ABNJ, given the largely sectoral nature of the existing legal framework, which does not allow for an integrated impact assessment of human activities on the marine ecosystem, or for an overarching framework for the establishment of MPAs. But this…is in fact the reason why the EU sees a need to develop an implementation agreement under UNCLOS and its underlying principles for the conservation and sustainable use of marine biodiversity.” – ad hoc working group, Feb 06 “An Implementation Agreement would allow for a cumulative impact assessment across different sectors.”

6. EU Proposal • (i) An integrated and precautionary based approach to the management of biodiversity protection and conservation, including through MPAs, • (ii) Co-operation and co-ordination between existing regulatory frameworks and bodies that are competent to exercise their respective mandates to regulate activities under their responsibility, • (iii) the establishment of a representative and integrated network of marine protected areas (WSSD) • (iv) Identification of vulnerable ecosystems and species in marine areas beyond the limits of national jurisdiction • (v) Measures in areas beyond national jurisdiction will be based on the best available scientific information and the precautionary principle and be coherent and compatible with measures taken within national maritime zones; • (vi) The Implementation Agreement will be interpreted and applied in the context of UNCLOS and in a manner consistent with international law. -EU Presidency Statement – Working Group on Marine Biodiversity 13.02.2006, Prof. Dr. Gerhard Hafner

7. Draft Implementation Agreement • Purposes • Drafting exercise – see what elements are needed • Show it can be done • Provide a model IA for the conservation and management articles of the LOSC. • Aims • Be comprehensive • Use existing text where possible • Address all gaps in high seas • Not be modest! • Caveats • Work in progress (obviously)

8. Some Background Notes • UNCLOS 25 years old. Need vision for next 25 years • FSA is 13 years old. Good but some provisions needs updating. • No exemption for fisheries • Fishing is primary cause of damage to ABNJ • Being bold • Some direction from 61/105

9. Some Sources • Marine protected Areas • SPA Protocol (Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA Protocol) • Environmental Impact Assessments • Madrid Protocol (Protocol on Environmental Protection to the Antarctic Treaty (1991)) • Fisheries • FSA • MCSCE (monitoring, control, surveillance, compliance and enforcement) • IPOA-IUU: International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing • Marine Genetic Resources • access and benefit sharing: IGPR: International Treaty on Plant Genetic Resources for Food and Agriculture • Transparency • Aarhus: Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters • Biodiversity • CBD: Convention on Biological Diversity

10. Structurehttp://www.greenpeace.org/raw/content/international/press/reports/suggested-draft-high-seas-impl.pdfStructurehttp://www.greenpeace.org/raw/content/international/press/reports/suggested-draft-high-seas-impl.pdf • Part I: General Provisions • Part II: Conservation and Management in Areas Beyond National Jurisdiction • Part III. Mechanisms for International Co-operation • Part IV Environmental Impact Assessments and Emergency Response • Part V Marine Protected Areas • Part VI Access to Marine Genetic Resources • Part VII Education, Technical Assistance and Benefit Sharing • Part VIII Marine Scientific Research • Part X Protection of Marine Genetic Resources and the Environment • Part XI Monitoring, Control, Surveillance, Compliance and Enforcement • Parts XII-XIX Dispute resolution, institutional, final etc

11. Objective • The objective of this Agreement is to ensure the long-term conservation and sustainable management of marine life, ecosystems and biological diversity, • the protection and preservation of the marine environment, the fair and equitable sharing of the benefits arising out of the utilization of marine genetic resources in areas beyond national jurisdiction • [to provide a framework for new, emerging and intensifying uses and activities in areas beyond national jurisdiction]and • the effective implementation of all the relevant provisions of the Law of the Sea Convention in accordance with the ecosystem approach and precautionary principle.

12. Fundamental Principles: • The following principles shall be fundamental considerations in the planning and conduct of all activities in the areas beyond national jurisdiction: • The protection of areas beyond national jurisdiction and marine genetic resources located in such areas; • Application of the ecosystem approach and the precautionary principle; • Use of the best available scientific information; • A commitment to the establishment and maintenance of a representative network of marine protected areas. • The sustainable and equitable use of marine life and marine genetic resources for the benefit of present and future generations; • The undertaking of comprehensive and public prior environmental impact assessments, including the assessment of cumulative impacts; • The application of recognized principles of good environmental governance, including access to information, transparency, and public participation; • The principle of common but differentiated responsibilities; • Ongoing co-operation between and among States to achieve the purposes of this Agreement. • [Others? Polluter pays, intergenerational equity]

13. Implementation • The implementation of comprehensive prior environmental assessments and ongoing monitoring of the marine environment • The designation of a global representative network of high seas marine reserves • The establishment of oceans management organizations • The establishment of a regime for access to and sharing of benefits derived from marine genetic resources in areas beyond national jurisdiction • The provision of access to and dissemination of information, and transparency in decision-making processes • The establishment of an effective centralised monitoring, control, surveillance, compliance and enforcement mechanism for human activities in areas beyond national jurisdiction

14. Environmental Impact Assessments • EIAs before specified activity in areas beyond national jurisdiction take place. • “Specified Activity” means fishing, bioprospecting, exploring, extractive activities, marine scientific research, or any other activity which takes place in areas beyond national jurisdiction other than mere passage

15. Oceans Management Organizations • conservation and management measures to attain the objectives of the Agreement • adopt measures to ensure the long-term sustainability of the marine environment • apply the precautionary principle and the ecosystem approach • restore and protect biological diversity in the marine environment • provide for comprehensive prior environmental assessments and ongoing monitoring of the marine environment • provide for the designation of a global and regional representative network of high seas marine reserves • provide for participation in a regime for access to and sharing of benefits derived from marine genetic resources in ABNJ • implement and enforce conservation and management measures through effective monitoring, control, surveillance, compliance and enforcement

16. MPAs • Global representative network of marine protected areas • Implemented through oceans management organizations and otherwise

17. Institutions • Governing Body • All States Parties • Overview implementation of agreement • Secretariat • Administrative support • Oceans management organization • global, regional or subregional oceans management organization or arrangement established under Part III of this Agreement

18. A vision • ‘The law of the sea seemed to unite humanism, the attempt to build a human law and order, and romanticism, the love of nature and of the oceans as part of nature. It offered a starting point for a new philosophy – an “ecological worldview” – and a new economic theory – sustainable development, the economics of the common heritage.’ • -Elizabeth Mann-Borgese, in Freedom for the Seas in the 21st Century

19. A vision • Arvid Pardo’s Draft Ocean Space Treaty - 1971 • Ocean space beyond national jurisdiction is the common heritage of mankind. Gradual establishment of a world network of parks and reserves • Unfettered sovereignty of state, and laissez-faire freedom of the seas have become dysfunctions. “In contemporary conditions, both must yield to the supreme interests of mankind if we are to survive and expand our beneficial use of the oceans.” • -Arvid Pardo, cited in Freedom for the Seas in the 21st Century