Law, Science and Ocean Management [Har/Cdr ed.] 9004162550, 9789004162556

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LAW, SCIENCE & OCEAN MANAGEMENT

DUBLIN PAPERS

Law, Science & Ocean Management is part of a series of publications on oceans law and policy associated with the Center for Oceans Law and Policy, University of Virginia School of Law. This volume is based on presentations made July 12-14, 2006 at the Center’s Thirtieth Annual Conference which was held at Dublin Castle and co-hosted with the Marine Law and Ocean Policy Centre at the National University of Ireland, Galway, and the Marine Institute of Ireland. A full sponsor from the outset was the Law of the Sea Institute of Iceland. Other sponsors for the conference included the Marine Institute, the Martin Ryan Institute, the Higher Education Authority, and the Irish Tourist Board (Fáilte Ireland).

CENTER FOR OCEANS LAW AND POLICY

LAW, SCIENCE & OCEAN MANAGEMENT

Edited by Myron H. Nordquist, Ronán Long, Tomas H. Heidar, and John Norton Moore

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON

A C.I.P. record for this book is available from the Library of Congress.

The editors and the publisher apologize for the inferior quality reproduction of certain graphic materials in this book. We still included these materials since the information remains useful in spite of the imperfect presentation.

Printed on acid-free paper.

ISBN 978 90 04 16255 6 Copyright 2007 Koninklijke Brill NV, Leiden, The Netherlands http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

FOREWORD: MESSAGE FROM THE PRESIDENT OF IRELAND Ireland is an island with one of the world's finest seascapes. Its seas have abundant biodiversity and seabed features that include cold-water coral reefs, carbonated mounds and a broad continental shelf. The sea also plays a critical role in our economy and provides jobs in parts of Ireland where there are a few opportunities for other forms of employment. Despite its size, the sea needs to be cared for and marine scientific research provides us with the knowledge we need to protect and preserve the marine environment. Against this background, I am pleased to see the publication of this volume which is based on the conference papers presented at the Thirtieth Annual Virginia Law of the Sea Conference held at Dublin Castle on July 12-14, 2006. The 2006 Conference examined the role of law and science in ocean management. Many of the conference papers explain how the knowledge provided by scientific research can contribute to the sustainable management of marine resources. In addition, the contributions on capacity building and technology transfer to developing States are significant in light of the appalling loss of life in the Indian Ocean tsunami of 2004. There is a pressing need for effective international structures in countering such events which all too frequently demonstrate human vulnerability in the face of natural phenomena. The work of the various multilateral fora in improving international relations through marine science partnerships must therefore be commended. I have no doubt that these proceedings will contribute to a better understanding of the role of law and science in ocean management and will be warmly welcomed by international lawyers, diplomats, and scientists alike. MARY McALEESE PRESIDENT OF IRELAND v

PREFACE

The Thirtieth Annual Conference sponsored by the Center for Oceans Law and Policy, University of Virginia School of Law was held July 12-14, 2006 in historic Dublin Castle.

The Conference was co-

sponsored by the Marine Institute, Ireland; the Martin Ryan Marine Science Institute, Ireland; and the Marine Law and Ocean Policy Center, National University of Ireland, Galway. The Law of the Sea Institute of Iceland was a full sponsor from the outset. A reception and gala dinner were hosted at St. Patrick’s Hall, the State Apartments, Dublin Castle. The topic of “Law, Science and Ocean Management” was consciously selected to facilitate an interdisciplinary review of pressing contemporary issues in the academic interface between law and management in marine science. The Conference marked the occasion of the 10th anniversary of Ireland’s ratification of the 1982 UN Convention on the Law of the Sea, providing a convenient focus for welcome remarks by John Browne, TD, the Marine Minister of State, Republic of Ireland; Iognáid Ó Muircheartaigh, President of the National University of Ireland, Galway; Peter Crocker, Chairman of the Commission on the Limits of the Continental Shelf; John Norton Moore, Director of the Center for Oceans Law and Policy, University of Virginia; and Tomas H. Heidar, Director of the Law of the Sea Institute of Iceland. Three keynote addresses were given at the Dublin Conference. Dr. Joe Borg, the European Commissioner for Fisheries and Marine Affairs, discussed a Green Paper just launched by the Commission providing one year of consultation to develop an all-embracing maritime policy for Europe. The goal of the Green Paper is to have a global, holistic, and sustainable approach within the European Community on maritime matters. Commissioner Borg pointed out that the European Community had the legal vi

Preface

regime in place to ensure compliance by its 25 member States with the international rules related to the seas and oceans. The second keynote address was given by Dr. Patricio Bernal, Executive Secretary, Intergovernmental Oceanographic Commission (IOC) of UNESCO. Dr. Bernal covered 20 years of state practice with the consent regime for marine scientific research provided in the 1982 Convention. He then reviewed current trends throughout the world’s oceans and the needs of internationally sponsored marine scientific research.

The last keynote

speaker was H. E. Satya N. Nandan, Secretary-General, International Seabed Authority (ISA). Secretary-General Nandan spoke on the extensive scientific research activities undertaken in the seabed areas beyond national jurisdiction and the coordinating role the ISA has played in encouraging the exchange of marine data on a global basis. Professor John Norton Moore, Director of the Center for Oceans Law and Policy, University of Virginia School of Law, moderated Panel I. He stressed that legal regimes must assist rather than hinder marine scientific research. The Attorney General of the Republic of Ireland, Rory Brady, led the discussion with a tour de force of legal aspects of the European Community in the field of environmental protection, including preservation and protection of the marine environment. Attorney General Brady concluded that the European Community was entering a new era of robust protection of the environment with both an ambitious legislative program and interventions by the European Court of Justice. Dr. Peter Heffernan, Chief Executive of the Marine Institute, Ireland, offered his perspectives on marine scientific research with an emphasis on Irish contributions over the last 15 years. Professor Alfred Soons, Director of the Netherlands Institute for the Law of the Sea, Utrecht University, identified

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Preface

the most pressing current issues in the legal regime of marine scientific research laid out in the 1982 Convention. Judge Dolliver Nelson, former President of the International Tribunal for the Law of the Sea, served as Moderator for Panel II on the Ecosystem Approach to Fisheries Management. The Director-General of the Marine Research Institute of Iceland, Jóhann Sigurjónsson, spoke first on fisheries management practices in Iceland. Implementation of the ecosystem approach within the policy framework of the Code of Conduct for Responsible Fisheries, the Ecosystem Approach to Fisheries technical guidelines and related fishery guidelines were then discussed by Dr. Serge M. Garcia of FAO. He concluded that despite progress at global levels, much more effort is needed at regional and national levels. As Scientific Adviser to the European Commission primarily responsible for scientific support on the Common Fisheries Policy, Poul Degbol explained the efforts currently underway in this regard. The PowerPoint presentations of Jóhann Sigurjónsson and Poul Degbol are included in the CD located in the inside pocket of the back of this book. Panel III dealing with Ocean Exploration was moderated by Barbara Moore, Director of Undersea Research, U.S. National Oceanic and Atmospheric Administration (NOAA). She observed that the “scope of the unknown in the oceans remains enormous.” Dr. Hjalmar Vilhjalmsson, Senior Scientist, Marine Research Institute of Iceland, focused on both overfishing and the impact of polar climatic warming on fish stocks in the northern North Atlantic. Dr. Michael P. Crosby, Executive Director of the U.S. National Science Board, commented that marine science capacity building in developing countries is encouraged by the 1982 Convention. He suggests that the Red Sea Marine Peace Park Cooperative Research, Monitoring and Resource Management (RSMPP) program may serve as a viii

Preface

model for such capacity building. Dr. John A. Orcutt, Deputy Director of the Scripps Institution of Oceanography, made a PowerPoint presentation (see included CD) on global ocean observatories, in particular Argo, the Integrated Ocean Observing Initiative (OOI), the Global Ocean Observing System (GOOS), the Global Earth Observing System of Systems (GEOSS), and their related organizations. Panel IV on Marine Science Capacity Building was led by Dr. Ronán Long, Manahan Law of the Sea Research Fellow and Jean Monnet Chair of European Law at the School of Law of the National University of Ireland, Galway, who elaborated on that theme and technology transfer under the 1982 Convention. Dr. Long also introduced panelists Professor David Freestone, Mr. Ariel W. González, Dr. Vladimir Golitsyn, and Professor Julia Xue and their topics. Professor Freestone outlined capacity building by the World Bank in the context of the 1982 Convention, particularly with respect to fisheries. Ariel W. González reviewed efforts within the IOC to develop a more realistic scheme for the transfer of marine technology. Dr. Vladimir Golitsyn reported on the proactive approach by the U.N. Division for Ocean Affairs and the Law of the Sea and its policy on promoting capacity building. The final speaker was Professor Julia Xue who described China’s experience in institutions building, legal and policy frameworks, and international cooperation in integrated ocean capacity building. Panel V, chaired by Myron H. Nordquist, Associate Director of the Virginia Center for Oceans Law and Policy, was directed toward specific oceans policy issues heavily influenced by marine science. A practitioner’s perspective on continental shelf petroleum development was given by Paul Kelly, a retired senior executive of Rowan Companies, Inc., Houston, Texas. He discussed growing worldwide demand for oil and gas supplies ix

Preface

bringing scientific and technological advances in ever deeper waters. The Head of the International Affairs Office, Ministry of Fisheries, Iceland, Stefán Ásmundsson, then advocated managing sustainable whaling on a scientific basis. In turn, George Taft, Office of Legal Adviser, U.S. Department of State, emphasized the critical role played by scientists under the 1982 Convention in establishing the outer limit of the continental shelf beyond the 200-mile EEZ. Lastly, a paper written by Professors Ivo Vio and Mira Luli dealt with recent changes in maritime jurisdiction in the Adriatic Sea and discussed possible means of dispute settlement by Croatia with Albania, Italy, and Montenegro. Judge David Anderson, formerly on the International Tribunal for the Law of the Sea, moderated Panel VI titled “Marine Science and the Law.” He commented specifically on the presentation of scientific evidence during dispute settlement and urged the use of joint approaches between lawyers and scientists. Professor Alan Boyle of the University of Edinburgh noted that parties to a scientific research dispute under the 1982 Convention may have a choice of forum and that care must be given to determine the forum best suited to handling the facts of the particular case. Captain J. Ashley Roach, JAGC, USN (Ret.), now in the Office of Legal Adviser, U.S. Department of State, pointed out that the law of the sea gives coastal States regulatory authority over some, but by no means all, forms of data collection in the marine environment. His theme was that what the activity is factually determines the applicable legal regime and that there is no single set of legal rules governing the collection of information about the oceans. Professor Aldo Chircop, Marine and Environmental Law Institute, Dalhousie University, examined the relationship between law, science, and technology in the context of marine scientific research. He concluded that the provisions on scientific research in the 1982 Convention continue to x

Preface

provide a viable global framework with the assistance of international organizations active in marine science. The final Panel VII titled “Marine Biological Diversity, Genetic Resources and the Law of the Sea” was chaired by Tomas H. Heidar, Legal Adviser, Ministry for Foreign Affairs of Iceland, and Director of the Law of the Sea Institute of Iceland. He reported on the activities of a U.N. Working Group studying issues relating to conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. Dr. Erik Jaap Molenaar, Netherlands Institute for the Law of the Sea, identified shortcomings in the international legal framework relating to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. He then offered selected substantive reforms relating to discrete high seas fish stocks, deep-sea species, integrated marine protected areas, and marine biodiversity. The scientific potential of marine genetic resources (MGR) was explained by Margaret F. Hayes, Director, Office of Ocean Affairs, U.S. Department of State. Her paper then addressed the legal aspects of MGR in relation to the 1982 Convention with a view to how marine scientific research should be handled. Dr. Kevern L. Cochrane, Senior Fisheries Officer, FAO, evaluated marine protected areas (MPAs) for both biodiversity conservation and as a tool in fisheries management. While MPAs have largely proved effective within their boundaries, results beyond boundaries are mixed and FAO is developing guidelines in this regard. The final speaker on Panel VII was Ms. Fernanda Millicay, Ministry of External Relations, Argentina, who addressed herself to the legal regime applicable to the biodiversity of the deep seabed Area. She advocated that no legal regime is in force for these resources in the Area and that a new regime ought to be negotiated consistent with the “common heritage of mankind” principle. xi

ACKNOWLEDGEMENTS The Dublin Conference was conceived by Ronán Long of the National University of Ireland, Galway; Tomas H. Heidar of the Law of the Sea Institute of Iceland; and Myron H. Nordquist of the Center for Oceans Law and Policy at the University of Virginia. Working in a collegial manner they developed the concept and structure of the Conference and selected the individual topics and speakers. In Ireland, the sponsors wish to record a debt of gratitude to the national organisation committee, Ronán Long, Helen Boles, Yvonne Shields, Micheál O’Cinneide, Commander Mark Mellett DSM, Lisa Walshe and Declan Smyth. Without doubt, the primary moving force to visualize and magnificently implement the Dublin Conference was Ronán Long. He was ably assisted by Helen Boles, who headed the events management team at the Marine Institute of Ireland which carried out to perfection the administrative tasks associated with the preparation and delivery of the Conference. Among others who assisted were Michelle Cheeseman, Gearoid Nicholson, Gina Walshe, Lisa O’Brien, John Joyce, and Cushla DromgoolRegan. At the Marine Law and Ocean Policy Centre at the National University of Ireland Galway, special thanks go to Heather Murphy, Naomi Foley and Anne Marie O’Hagan for their help with various aspects of the programme. At Dublin Castle, a special note of thanks to the conference centre management team for their professional and efficient service. The kind hospitality of the Attorney General of Ireland, Rory Brady SC, and the Minister for the Environment, Heritage and Local Government, Dick Roche TD, in hosting a delightful dinner at Farmleigh is also graciously acknowledged. Renee Dempsey ensured that this event was a great success. The trip on board the naval flag ship LE Eithne around Dublin Bay was a wonderful highlight of a memorable conference week. The contribution of the Law of the Sea Institute of Iceland was effected primarily by the diligent efforts of Tomas H. Heidar, Director of the Institute. He played a key role in coordinating the many contributions made from Reykjavik. These contributions were fundamental and crucial in ensuring our successful Conference. At the Center for Oceans Law & Policy at the University of Virginia, the program and contributions were orchestrated and led by Professors Myron H. Nordquist and John Norton Moore, while Executive Administrator Donna D. Ganoe did her usual outstanding job in making administrative arrangements with the dedicated assistance of Kay W. Wood and Kathy H. Wood. Technical editing was done by Judith A. Ellis, who also coordinated communications with the authors, collected materials and their revisions, and put the manuscript in final form. xii

TABLE OF CONTENTS Foreword.......................................................................................................................v Preface..........................................................................................................................vi Acknowledgements.................................................................................................... xii CD Table of Contents.............................................................................................. xvii Welcome Remarks John Browne, TD .............................................................................................3 Marine Minister, Republic of Ireland Iognáid Ó Muircheartaigh ...............................................................................5 President, National University of Ireland, Galway John Norton Moore ..........................................................................................9 Director, Center for Oceans Law and Policy, University of Virginia Keynote Addresses Green Paper on a Future Holistic Maritime Policy for the European Union and the Law of the Sea........................................................................13 Commissioner Joe Borg Observations and Knowledge of the Oceans: Marine Scientific Research, the Transfer of Marine Technology and Capacity Building ..........21 Patricio A. Bernal The International Seabed Authority and Its Promotion of Marine Scientific Research ............................................................................63 H.E. Satya N. Nandan Panel I: Setting the Scene John Norton Moore, Moderator Introductory Remarks ....................................................................................95 John Norton Moore Remarks: European Community and Environmental Protection...................99 Rory Brady Perspectives on Marine Scientific Research ................................................131 Peter Heffernan Overview of the National Oceanic & Atmospheric Administration ...... see CD William J. Brennan xiii

Table of Contents

The Legal Regime of Marine Scientific Research: Current Issues ..............139 Alfred Soons Panel II: Ecosystem Approach to Fisheries Management Dolliver Nelson, Moderator Ecosystem-based Fisheries Management in Iceland: Implementation and Practical Considerations [Abstract & PowerPoint only]……. .............169 Jóhann Sigurjónsson The Ecosystem Approach to Fisheries: on the Way to Implementation ............................................................................................171 Serge M. Garcia Ecosystem Based Fisheries Management in Europe [Abstract & PowerPoint only]......................................................................217 Poul Degnbol Panel III: Ocean Exploration Barbara Moore, Moderator Introductory Remarks Barbara Moore ...........................................................................................221 Impact of Changes in Natural Conditions on Ocean Resources...................225 Hjalmar Vilhjalmsson Improving International Relations Through Marine Science Partnerships..................................................................................................271 Michael P. Crosby Global Oceans Observatories [Abstract & PowerPoint only] .....................295 John Orcutt Panel IV: Marine Science Capacity Building Ronán Long, Moderator Marine Science Capacity Building and Technology Transfer: Rights and Duties Go Hand in Hand Under the 1982 UNCLOS .................299 Ronán Long Capacity Building and the Implementation of the Law of the Sea Convention: A View from the World Bank .........................................313 David Freestone

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Table of Contents Cutting a Gordian Knot?: Towards a Practical and Realistic Scheme for the Transfer of Marine Technology ..........................................345 Ariel W. González Capacity Building: A View from the United Nations ..................................381 Vladimir Golitsyn Capacity Building for Integrated Ocean Management: A Chinese Perspective .................................................................................403 Guifang (Julia) Xue Panel V: Marine Science and Policy Myron H. Nordquist, Moderator Marine Science and Policy: Continental Shelf Petroleum Development...............................................................................439 Paul Kelly Whaling........................................................................................................459 Stefán Ásmundsson Applying the Law of the Sea Convention and the Role of the Scientific Community Relating to Establishing the Outer Limit of the Continental Shelf Where it Extends Beyond the 200 Mile Limit ....................................469 George Taft Extension of the Jurisdiction of the Republic of Croatia in the Adriatic Sea........................................................................................477 Igor Vio and Mira Luli Panel VI: Marine Science and Law David Anderson, Moderator Scientific Evidence in Cases Under Part XV of the LOSC..........................505 David Anderson Forum Shopping for UNCLOS Disputes Relating to Marine Scientific Research ......................................................................................519 Alan Boyle Defining Scientific Research: Marine Data Collection................................541 J. Ashley Roach Advances in Ocean Knowledge and Skill: Implications for the MSR Regime ....................................................................................575 Aldo Chircop xv

Table of Contents

Panel VII: Marine Biological Diversity, Genetic Resources and the Law of the Sea Tomas H. Heidar, Moderator Introductory Remarks ..................................................................................619 Tomas H. Heidar Managing Biodiversity in Areas Beyond National Jurisdiction...................625 Erik Jaap Molenaar Charismatic Microfauna: Marine Genetic Resources and the Law of the Sea .............................................................................................683 Margaret F. Hayes Marine Protected Areas as Management Measures: Tools or Toys?............................................................................................................701 Kevern L. Cochrane A Legal Regime for the Biodiversity of the Area ........................................739 Fernanda Millicay

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CD Table of Contents Note: Because of the scientific nature of the Ireland Conference, many presenters included slides, maps, or other visuals, most of them in PowerPoint presentations. Instead of incorporating all visuals in the printed text, the editors chose to include a CD that is found in the pocket inside the back cover. The CD features all 20 of the color Microsoft PowerPoint presentations given at the Conference, biographies of the panelists, a list of Conference participants, and a selection of law of the sea documents. The editors hope that the readers will find it particularly helpful that the additional source materials on the CD include the 1982 UNCLOS treaty; the UN Fish Stocks Agreement; a current list of Parties to the Convention and the Agreement; and the IOC Criteria and Guidelines on Transfer of Marine Technology. An especially important extra feature is a draft of the Cumulative Index to the six-volume series United Nations Convention on the Law of the Sea 1982: A Commentary (1985-2002), provided courtesy of H.E. Satya N. Nandan.

PowerPoint Presentations and Video Clips: Bernal, Patricio A. Brennan, William J. Cochrane, Kevern L. Crosby, Michael P. Degnbol, Poul Freestone, David Garcia, Serge M. González, Ariel W. Heffernan, Peter Kelly, Paul Millicay, Fernanda Molenaar, Erik Jaap Nandan, H.E. Satya N. Orcutt, John (plus video clip of Argo floats program) Roach, J. Ashley Sigurjónsson, Jóhann Soons, Alfred Vilhjalmsson, Hjalmar Vio, Igor & Mira Luli Xue, Guifang (Julia) (plus video clip of Qingdao, China) xvii

CD Table of Contents

Additional Materials and Documents

Biographies of the Speakers and Moderators List of the Conference Participants Cumulative Index to the six-volume series United Nations Convention on the Law of the Sea 1982: A Commentary, Myron H. Nordquist, Editor-in-Chief, (Martinus Nijhoff Publishers, 1985-2002)

Documents: (1) UNCLOS & Related Documents: Official text of the United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on 10 December 1982, and the Agreement Relating to the Implementation of Part XI of the Convention, adopted by the UN General Assembly on 28 July 1994 [1982 Convention]; General Assembly Resolution 48/263 and Agreement relating to the implementation of Part XI; Final Act of the Third UN Conference; List of signatories; Resolution 2749 (XXV) on Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, Beyond Limits of National Jurisdiction (2) UNCLOS Statements: Bernardo Zuleta, Javier Pérez de Cuéllar, Tommy Koh, Satya Nandan, and Madeleine Albright (3) Fish Stocks Agreement: Agreement for the Implementation of the Provisions of the United Nations Convention on the law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. A/Conf. 164/37, 8 Sept. 1995 [The UN Fish Stocks Agreement]; Statement of the Chairman, Satya N. Nandan; and Final Act of the UN Conference on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (4) List of Parties to the Convention and the Related Agreements as of 04 April 2007 (5) IOC Criteria and Guidelines on the Transfer of Marine Technology

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WELCOMING REMARKS

Welcome Remarks John Browne, TD* Ambassadors, Judges, members of the diplomatic community, representatives of intergovernmental and non-governmental organisations, distinguished guests: On behalf of the Government of Ireland, it gives me great pleasure to welcome you to Dublin and to open the 30th Virginia Law of the Sea Conference. I would especially like to welcome the co-hosts of this year's conference, the Center for Oceans Law & Policy at the University of Virginia and the Law of the Sea Institute of Iceland, and to compliment the Marine Institute and NUI Galway on the excellent organisation for this event. The Annual Virginia Conference is the leading international conference on the law of the sea and ocean policy. The aim of this year's conference is to build international understanding on the role of science and law in ocean management. We are very pleased that Ireland has been chosen to host this year's conference as we have a long tradition in the history of the law of the sea. As I am sure you are aware, Ireland played a key role in negotiations on the United Nations Convention on the Law of the Sea, particularly with regard to the definition of the Continental Shelf. Continuing that tradition, Peter Croker, of my own department, has been an active member of the UN Commission on the Limits of the Continental Shelf since 1997 and indeed is the current Chairman of the Commission. The recently published Green Paper on Maritime Policy by the European Commission, acknowledges that oceans and seas can only be managed within multilateral fora. EU policy aimed at the oceans must be developed within that international context. *

Marine Minister of State, Republic of Ireland

3

John Browne, TD

This conference presents a unique opportunity to bring together international decision-makers and scientists in an informal setting here in Dublin Castle. The Irish government hopes that this conference will be an important contribution to the ongoing work of the international community in solving the problems of ocean management. The world's oceans are not the sole responsibility of nation states and international organisations. They are the legitimate concern of every citizen. We all have a stake in good ocean management. In this context, it is our view that ocean science will have to become more interdisciplinary and more international. This conference will allow you to build bridges between the scientific and legal sides. The Irish government is committed to advancing marine scientific research and to building a robust marine economy. The Taoiseach (our Prime Minister) has recently opened the Marine Institute’s world-class research facility in Galway. We are also committed to building our research capacity in the law of the sea and oceans policy.

We wish to thank

Professor John Norton Moore, Director of the Center for Oceans Law & Policy at the University of Virginia School of Law, for his on-going work on how this can be best achieved. For most of our international guests, this is your first visit to Ireland. We hope that in future visits that you will take time to visit our research facilities managed by the Marine Institute in the west of Ireland. I hope you all have a very enjoyable evening and wish you every success with this important and historic conference.

4

Welcome Remarks Iognáid G. Ó Muircheartaigh 1 Minister,

Attorney

General,

European

Commissioner,

Ambassadors, Judges, members of the diplomatic community, and distinguished guests. First and foremost, on behalf of the National University of Ireland, I would like to welcome you to the 30th annual Virginia Law of the Sea Conference. In Gaelic we say: Ní neart go cur le chéile. (There is no strength without unity). The strength of this conference is that it brings together the world’s top experts in ocean management. This is borne out by the attendance here in Dublin of 200 lawyers, scientists, diplomats, students and specialist practitioners from over 30 countries. I wish to welcome especially those participants who have travelled from Argentina, Australia, Japan, China, South Africa, the Caribbean, the United States, and from countries closer to home which include Iceland, Norway and our sister Member States in the European Union. This conference is also unique in that it brings together many lawyers and scientists who work for inter-governmental and non-governmental organisations. I extend a warm welcome to the members of the European institutions and to Commissioner Borg and to his Maritime Policy Taskforce. Ladies and Gentlemen, permit me to say a few words about our cohosts. The University of Virginia School of Law was founded by Thomas Jefferson in 1819. As the top public law school in the United States, it has particular Irish affiliations in that it is the alma mater of Robert Kennedy (who served as Attorney General of the United States) and Senator Edward

1

President of the National University of Ireland, Galway. President of the Irish University Association.

5

Iognáid G. Ó Muircheartaigh

Kennedy. Both of whom I wish to add will always have a special place in the hearts of the Irish people. It is thus quite fitting that you will be addressed tomorrow morning by the Attorney General of Ireland, Mr. Rory Brady, Senior Counsel, who has been particularly supportive in bringing this prestigious conference to Ireland. For many of you, the Center for Oceans Law and Policy at the University of Virginia is synonymous with scholarship and public service in the field of oceans law. Under the direction of Professors John Norton Moore and Myron Nordquist, the Center has trained a generation of international lawyers and public servants. John, we are particularly grateful for your help in preparing our plans for the future development of our specialist law of the sea research centre here in Ireland. We look forward to your next visit to our University and to the implementation of your report. This represents an exciting development for NUI Galway and we see the development of a specialist research centre as fully consistent with our commitment to excel in inter–disciplinary and multi–disciplinary ocean research. We are particularly impressed with Dr. Long and the manner which he has forged an international reputation for our University in the field of oceans law. He deserves special recognition for the impeccable organisation of this conference which marks an important milestone in promoting Ireland’s international reputation in marine research. Our other co-host, the Law of the Sea Institute at Reykjavik University in Iceland also has a strong Irish link in that its former Chairman of the Board, His Excellency Sverrir Haukur Gunnlaugsson, is also the Icelandic ambassador to Ireland. The current Chairman of the Board, Mr. Tomas Heidar, is the Legal Adviser at the Ministry for Foreign Affairs and Director of the Law of the Sea Institute Iceland. He is a regular visitor to Ireland and is in frequent contact with the Department of Foreign Affairs in

6

Welcome Remarks

Dublin on law of the sea related matters. I should also mention that in a geographical sense Reykjavik University and NUI Galway are neighbours and we see this as a wonderful opportunity to foster collaboration between our respective institutes. Tomas, on behalf of the University, let me tell you how pleased we are that your institute is co-hosting this conference. Here in Ireland, this conference is co-sponsored by our national marine research agency, the Marine Institute. In the University, we take particular pride at the growth of the institute into one of the pre-eminent marine research bodies in the world. This growth has been achieved under the strong leadership of the Chief Executive, Dr. Peter Heffernan.

Of

course we can claim partial responsibility for this success as Peter is a distinguished graduate of NUI Galway. Dear participants, I wish to make special mention of the Martin Ryan Institute, a co-sponsor of this event and home to our Marine Law and Ocean Policy Centre. You will be pleased to learn that marine research is a priority at our University. We can trace our roots in this specialist area back to the appointment of Máirín de Valéra as Professor of Botany in 1961. As some of you may know, the de Valéra family were closely involved in the founding of the Irish state. For us, Máirín, daughter of President de Valéra will always be recognised as the first marine scientist at our University. Today, with the help of the Higher Education Authority we continue to develop our multidisciplinary research teams at NUI Galway.

This

conference, which is sponsored by the Higher Education Authority, represents an important milestone in our current development strategy. This conference also marks the 10th anniversary of Ireland’s ratification of the 1982 United Nations Convention on the Law of the Sea. On this special occasion, I am delighted to welcome this evening some of the members of the Irish delegation to the Third United Nations Conference

7

Iognáid G. Ó Muircheartaigh

on the Law of the Sea.

We wish to acknowledge their remarkable

contribution to international law-making.

In particular, I welcome

Ambassador Aldine Skinner, Ambassador Mahon Hayes, and Dr. Piers Gardiner. All of whom are recently retired after many decades of exemplary public service. Dr. Long tells me that every law of the sea student is familiar with the “Gardiner Line” and perhaps at this point it is fitting to acknowledge the assistance Peter Croker, the current chairman of the Commission on the Limits of the Continental Shelf set up under the 1982 Convention, continues to give to our researchers at NUI Galway.

Before I conclude, I wish to

point out that at various stages of my own academic career I have taught at the United States Naval Post Graduate School in Monterey and at Stanford University. I therefore have a first-hand appreciation of the importance of building bridges between the scientific and the wider community. As a statistician, I have always trained my students to search for solutions and it is my hope that this conference will leave its imprint on the future work of the international community in finding solutions to the difficult problems facing the world’s oceans community. I wish to thank you, the participants, for your enthusiastic attendance. I wish you a pleasant stay in Ireland and encourage you to take time to visit our University in Galway.

8

Welcome Remarks John Norton Moore * Minister Browne, President Ó Muircheartaigh, Chairman Croker, and Director Heidar, it is a special pleasure to be in beautiful Ireland—and a special pleasure to be in the presence of such an outstanding group of participants. We are honored to be sponsoring this 30th annual Law of the Sea Conference with the Marine Institute, Ireland, the Marine Law and Ocean Policy Centre at the National University of Ireland, Galway, and the Law of the Sea Institute of Iceland. The Marine Institute of Ireland under the leadership of Dr. Peter Heffernan is one of the many great success stories of Ireland. It has grown from a staff of one to over 150, and from an annual budget of €300,000 to €31 million. Its two new ships, the Celtic Voyager and the Celtic Explorer are state of the art coastal and deep sea research vehicles. And, its new facilities at Galway are the envy of the global oceanographic community. The Government of Ireland has correctly understood that science, technology, and education are the keys to global competitiveness in the 21st century. Not surprisingly, the Martin Ryan Science Institute at the University of Galway, is a world class research institute. And, with respect to the important work of the University of Ireland, Galway, in oceans and marine affairs, I am honored to be working with you on suggestions for an important new multidisciplinary marine law and oceans policy centre at the University. The University is fortunate to have a world class expert to run it— Dr. Ronán Long, a top expert in oceans law. It has been my pleasure to work with Ronán since his participation in the Rhodes Academy several years ago. *

Director, Center for Oceans Law and Policy at the University of Virginia, and Walter L. Brown Professor of Law.

9

John Norton Moore

Finally, let me specially thank some of those who did the planning and work for the conference—they are Myron H. Nordquist from our Center; Ronán Long from the University of Ireland, Galway; and Tomas Heidar, Director of the Law of the Sea Institute of Iceland and Legal Advisor, Ministry for Foreign Affairs of Iceland.

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KEYNOTE ADDRESSES

KEYNOTE ADDRESS The Green Paper on a Future Holistic Maritime Policy for the European Union and the Law of the Sea Dr. Joe Borg* On the 7th of June the Commission adopted a Green Paper launching a one-year consultation on Europe’s interaction with the oceans and seas. The idea behind this is to develop an all-embracing maritime policy

aimed

at

enhancing

Europe’s

maritime

economy

in

an

environmentally sustainable manner. The Green Paper, or consultation paper, does not seek to bring us instantaneous answers. Nor does it indicate appropriate actions. It simply asks questions, questions that I believe raise the issues of concern to European citizens—both those who are closely involved with the oceans and seas and otherwise. The intention is to have as wide a debate as possible. We are looking for guidance as to what a maritime policy for Europe should be, from interested parties, stakeholders, and experts such as yourselves. We talk about an all-embracing maritime policy. Yet what exactly do we mean? While every coastal nation has a variety of sectoral policies in place to manage different uses of the ocean such as shipping or fishing, it has only been in the last decade that some of them have undertaken concerted efforts to articulate and implement a more integrated vision for the governance of ocean areas under their jurisdiction. The Green Paper seeks to make these efforts more widespread. It calls for a collective and collaborative oceans

*

Member of the European Commission responsible for Fisheries and Maritime Affairs. This paper is also posted on Commissioner Borg’s Web site: http://ec.europa.eu/maritimeaffairs/speeches/speech130706_en.html

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strategy by decision-makers. It also seeks to involve people at all levels and from different maritime sectors and industries. We are proposing to no longer look at the oceans and seas on a purely sectoral basis, but as a whole, integrating the constraints with the opportunities available. In so doing, we feel able to look at the opportunities for growth and employment arising from recent technologies, scientific knowledge, and new uses of the seas, in conjunction with the impact these will have on the resource base. The execution of such an integrated approach to maritime affairs will to a large extent depend on national, regional, and local players, acting in a concerted and coordinated way. In addition, an EU maritime policy will give the EU the opportunity to work and co-operate better with third countries and to enrich its external and co-operation policy. Hence, our intention is not to design a new policy which will exist in isolation. On the contrary, our objective is to create a policy that will be able to co-ordinate and integrate the sectoral approaches that already exist. It will also be built on existing initiatives so as to ensure that the integrated manner in which we hope to treat the oceans and seas is put into practice at all levels of the process. Better maritime governance also implies stronger co-ordination of governments’ offshore activities. Better and stronger co-ordination between Member States should be promoted not only to maximize potential economies of scale, but also to improve the efficiency of maritime control and intervention. This is not new for Ireland. Both Ireland, and its Marine Institute in particular, have made significant contributions to the development of the Green Paper on a future maritime policy for the Union. In fact, the Galway Declaration agreed at the EurOcean 2004 Conference, hosted by the Marine

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The Green Paper on a Future Holistic Maritime Policy

Institute during the Irish EU Presidency, proved to be one of the key factors stimulating our initiative to develop the Green Paper on an EU Maritime Policy. Furthermore, the Marine Industries Global Market Analysis (2005) published by the Marine Institute as part of the process to develop a new Marine Knowledge, Research & Innovation Strategy for Ireland (20072013) provided the most up-to-date profile of the prospects for global marine business and is duly cited in the Green Paper. We share Ireland’s vision: a vision of economic growth which depends on the oceans as a resource, while simultaneously preserving and protecting the marine environment. In a similar manner, we too believe that one of the ways in which we can achieve these goals is through adequate investment in marine research and technology. It is in this way we can aspire to gather considerably more data and information on the functioning of the ocean system, our impact upon it and hence devise a new form of governance based on appropriate coastal and oceans integrated management and on spatial planning. Ladies and gentlemen, allow me to turn now from the very specific to the wider, international context. While the international community strives to adopt a range of legal instruments necessary to complete the international system of governance of the seas, I believe the time has come to concentrate on ensuring the implementation of the duties we have all contracted under international law in an effective manner. In this regard, I am pleased to note the successful outcome of the Review Conference on the UN Fish Stocks Agreement, held last May in New York. I look forward to working with our international partners to

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move forward with the recommendations from this Conference in the coming months. Insofar as UNCLOS is concerned; I had the privilege of visiting and addressing the International Tribunal for the Law of the Sea last September. I indicated at that time that the Commission attaches great importance to the role of the Tribunal’s jurisprudence as a key element of the consolidation of the international maritime legal order. However, at this time, only 22 parties to the Convention have chosen the Tribunal as their preferred forum for the settlement of disputes while 111 parties have made no declaration of choice under Article 287 of the Convention. Under these conditions, as President Wolfrum noted just recently in New York before the 16th Meeting of the States Parties to the Convention, arbitration is currently the general rule for dispute settlement, whereas recourse to the Tribunal or to the International Court of Justice is the exception. I fully share his view that this situation does not appear to reflect the expectations of the drafters of the Convention. It is therefore my hope that a growing number of parties will recognise the expertise of its judges, the competence of the Tribunal, and the flexibility of the procedures that can be instituted before this body. Building up coherent jurisprudence on the Law of the Sea will only be possible through legal decisions and over time. Europe wants to strengthen the global governance of the oceans based on the rule of law. This is also one of the key messages of the European Commission's Green Paper on Maritime Policy. The Commission for the Limits of the Continental Shelf is also seeing its work increasing at a rapid pace. It is worth noting the recent joint submission made by four EU Member States—Ireland, the UK, Spain and France—regarding the limits of the Continental Shelf in the Bay of Biscay.

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The Green Paper on a Future Holistic Maritime Policy

I welcome this submission as a very useful example of co-operation among states to facilitate the work of this Commission. I am aware of existing concerns about the fact that the Commission is under severe time and financial constraints to do its work. Yet I hope parties will find an agreement on the best way forward to ensure that submissions are adequately examined in a cost efficient manner. The 25 EU members can work effectively together to assist in this endeavor. The International Seabed Authority has just approved an application by Germany for a plan of work for exploration of polymetallic nodules in the Area. This first application is extremely significant as it marks the start of the Authority’s practical work as universal administrator of the mineral resources of the seabed beyond areas of national jurisdiction. I am aware that further applications will soon be considered with regard to the exploration of polymetallic sulfides in deep hydrothermal vents. The Authority and its members are well aware of the immense value, from the point of view of biodiversity, of the living communities which aggregate around these vents. Therefore, I am convinced that careful consideration will be taken of the environmental impact stemming from these activities. This brings me to the main focus of this year’s United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea, UNICPOLOS, which during its 7th session dealt with the topic “ecosystem approaches and oceans”. The Commission is satisfied with the useful and enlightening discussions that are being held therein. From our point of view, the meeting highlighted the worthy efforts that are being taken in different parts of the world to integrate in an effective manner human exploitation activities in science-based management policies, thereby maximizing sustainable benefits and ecosystem conservation.

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In this framework, the European Union reiterated a proposal, first formulated back in 2004, for an implementation agreement to the Convention regarding the protection of marine biodiversity in areas beyond national jurisdiction. We believe that the principles of UNCLOS must be read in accordance with the prevailing consensus on the benefits of an integrated, cross-sectoral approach to the protection of marine biodiversity. This is necessary in a situation where there seems to be no agreed international legal basis to adopt key international measures such as Marine Protected Areas beyond national jurisdiction. Whereas sector-specific international or regional organizations are able to adopt such measures in their own sphere of competence, only a horizontal instrument would provide a basis for a holistic, integrated approach in line with the commitments assumed at the World Summit on Sustainable Development. The European Union is therefore working hard to convince other UNCLOS Parties that an Implementation Agreement would be a useful development. Let me underline that a process to elaborate such an instrument should never be used as a reason to postpone action on a sectoral basis. Where such action is necessary, sectoral organizations must indeed act in the short term to address detrimental impacts of human exploitation activity, particularly on vulnerable marine habitats. A good example is the role that Regional Fisheries Management Organizations can and must play to regulate fishing practices like bottom trawling, which can have a devastating effect on seamounts and other sensitive ecological zones. The Union is keen to use RFMOs to curb such practices and will always be an active advocate of relevant RFMO regulations. The follow-up of the UN work on marine biodiversity in areas beyond national jurisdiction will be at the centre of discussions by the General Assembly at its 61st Session next November. The EU will then

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The Green Paper on a Future Holistic Maritime Policy

renew its efforts in favor of an Implementing Agreement in the knowledge that many States make progress on such a proposal contingent on the negotiation of a benefit-sharing regime for genetic resources. Suffice it to say that the Union has recognized the fact that there are significant expectations regarding this issue and has committed itself to embark in an open and frank dialogue with, in particular, developing States regarding this technically complex and politically sensitive issue. Ladies and gentlemen, let me also use this opportunity to highlight the importance for the European Community’s legal system of ensuring the respect of the provisions of UNCLOS and other agreements to which the EC is a Member. In a judgment of 30th May of this year concerning the dispute between Ireland and the UK relating to the impact of the MOX plant at Sellafield on the marine environment, the European Court of Justice recalled that following its ratification in 1998, the provisions of the Convention form an integral part of the Community legal order. The Court concluded that, in ensuring respect for commitments arising from an agreement concluded by the Community institutions, the Member States fulfill, within the Community system, an obligation in relation to the Community, where the Community has assumed responsibility for the due performance of that agreement. In this context, I would like to recall that the European Court of Justice can impose, at the request of the Commission, substantial fines on Member States which do not comply with Community law. In relation to sea fisheries, for example, the Court by judgment of 12 July 2005 imposed a lump sum of 20 million euros on France for past non-compliance with rules on sustainable management of fisheries. It also ruled that France was obliged to pay almost 58 million euros for every six months after the judgment until it attains full compliance. France has had to pay the first six

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month fine earlier this year since by the end of the first semester it had not yet taken all the necessary steps to comply with the Court ruling. Developments on the ground have shown these kinds of fines to act as a powerful motivator to change. Ladies and gentlemen, to conclude: the Green Paper demonstrates a new resolve of Europe to contribute to a global, holistic and sustainable approach to maritime matters. The Community has the instruments to ensure compliance by 25 countries with international rules relating to the seas and oceans. Europe is willing and able to make a substantial contribution to the effective global governance of the seas and oceans based on the rule of law, and we count on your support in that respect. I look forward to more in-depth discussions with you over the next few months.

Thank you.

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KEYNOTE ADDRESS Observations and Knowledge of the Oceans: Marine Scientific Research, the Transfer of Marine Technology and Capacity Building Dr. Patricio A. Bernal 1 Abstract

The UN Convention on the Law of the Sea clearly promotes the study of the marine environment and declares that “marine scientific research shall be conducted exclusively for peaceful purposes.” The Convention also defined, for the first time, a universal legal regime to conduct scientific research, what is now known as the “consent regime”. This regime was adopted as part of the negotiations leading to the recognition of the jurisdiction of the coastal state over the Economic Exclusive Zone, and as a mean of guaranteeing the coastal State the protection of its economic interests vis à vis the actual or potential exploitation of natural resources contained in that zone. The “consent regime” creates a series of opportunities for the coastal States to benefit from research conducted by other nations or by or under the auspices of competent international organizations. This paper explores the experience of 20 years of practice of the consent regime, as well as reviewing current trends and needs of internationally sponsored marine scientific research with a view to improve and facilitate its application. 1

Executive Secretary, Intergovernmental Oceanographic Commission (IOC) of UNESCO. The author’s PowerPoint presentation can be viewed on the accompanying CD.

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1. The Lessons from the Indian Ocean Tsunami of December 2004

At 0100 GMT on 26 December 2004 a 9.3 magnitude earthquake occurred on the sea floor near Aceh, northern Indonesia, generating a powerful wave resulting in the strongest tsunami the world has known in over forty years. The wave spread in all directions. Towards the east, the tsunami surged ashore without warning just north of Phuket, Thailand, where the waves hit the beaches at up to 10.5 metres (34 ft) high and speeds of up to 8 metres a second (29 kms/hr). Towards the west, it continued on, still without warning, taking close to two hours to reach Colombo, Sri Lanka, and then the east coast of India. Almost eight hours after the tsunami had hit Asia, the fishing communities of Somalia and Kenya still had no idea that the wave was coming. The Indian Ocean tsunami is estimated to have killed over 275,000 people and severely affected more than 158 million more. Half a million people were injured, one million displaced and at least five million more needed urgent assistance. Today, millions of people in the region are still struggling to regain their livelihoods and re-establish their homes. There is little doubt that thousands of lives could have been saved if an alert system, similar to that operated by the Intergovernmental Oceanographic Commission (IOC) of UNESCO in the Pacific since 1965, had been in place in the Indian Ocean region. The population in Banda Aceh would most likely have had to depend on its own awareness and local emergency preparedness to protect itself. However, the coast of the rest of Indonesia, Thailand, Malaysia, Sri Lanka, India, the Maldives, Seychelles, Australia, Somalia, Kenya, and in fact all the rest of the Indian Ocean Basin would have been fully protected had there been a properly issued warning. The answer to this paradox is complex.

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Tsunami risk exists to a different degree in all ocean basins. The return time of tsunamis can be measured in decades and centuries. Communities and societies, with the passing of generations, lose their awareness of the phenomenon. Educational systems do not correct effectively for this fact of life. But ultimately the limited capacities to communicate in a persuasive manner the potential risk to decision makers, and to represent in an accurate way the alternatives play a key role. Most large, destructive tsunamis are generated by big earthquakes. However, given our current state of knowledge, the date, time and place where an earthquake will occur cannot be forecast. The causal link between earthquakes and tsunamis is weak, and at best unidirectional. Although most distant (or tele-tsunamis) are caused by earthquakes, only a small proportion of earthquakes generate destructive tsunamis. Tsunami warning depends on the early detection of a tsunami perturbation in the ocean itself. It does not and cannot depend on seismological information alone. The actual danger posed by tsunamis is specific to a given region. Local tsunamis (less than 100 km) or regional tsunamis (less than 1,000 kms) can be generated by small earthquakes, a landslide, or lava flow. Distant tsunamis (or tele-tsunamis) on the other hand, like the one off the coast of Sumatra on 26 December 2004, can travel thousands of kilometers at the speed of a jetliner over the deep ocean before hitting the coastline. Depending on the location of the source in respect to the coast, a tsunami can strike the shore within minutes, leaving very limited time for issuing an alert. In such a case, the affected population must depend almost exclusively on its own knowledge, awareness, and preparedness and on effective communication networks if a warning becomes available. Distant tsunamis, however, allow more time to react—warning centres can notify national authorities and evacuations can be safely carried out.

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The challenge is therefore to put in place a warning system that can protect local populations at very short or no notice, as well as populations far away from the origin where a proper warning and confirmation of a tsunami can be effectively issued. The IOC has been leading the technical response to this disaster, cooperating with other agencies inside and outside the UN system. Regional and national ownership is essential. Nations assert for themselves the responsibility of issuing warnings to populations in their territories. The strategy adopted by the IOC is to provide tsunami early warning globally. We are actively coordinating with governments at the regional level and much has been done since December 2004. An interim warning system started to operate the 1st of April 2005 with 14 member states. Today it extends to the whole Indian Ocean region. Relying exclusively on seismic data, as of 1 December 2005, there are 24 (out of 28) national tsunami information centres capable of receiving and distributing tsunami advisories 24/7 from centres in Tokyo (Japan Meteorological Agency) and Hawaii (Pacific Tsunami Warning Centre). In one and a half years, the IOC has been able to establish an initial operational system that incorporates sea-level and deep-sea pressures measurements in the region. This initial tsunami warning system is operational now, composed of an improved seismographic network (25 new stations being deployed and linked in real-time to centres of analysis) and a real-time sea level network (23 new stations), plus three Deep-ocean Assessment and Reporting of Tsunamis (DART) sensors (one deployed by Malaysia and two by Germany). To this we should add the data from the seismographic stations contributed by the CTBTO, the Commission for the Nuclear-Test Ban Treaty Organization.

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At the end of July 2006, this initial system will be capable for the first time in the Indian Ocean of: --

Improved and faster detection of strong, tsunamogenic

earthquakes; --

Increased precision in the location of epi- and hypocenters

of earthquakes, enabling the accurate application of tsunami warning protocols; --

Confirming the presence of a tsunami wave in the ocean

after a strong earthquake; --

Issuing a ‘tsunami watch’, ‘regional tsunami watch’ or a

‘global tsunami ocean warning’; and --

Calling off ‘tsunami watches’ and ‘regional tsunami

watches’. However, this successful work is far from being finished. The first national plans that will come to reinforce this initial system, have delivering dates in 2007 and 2008. Newly installed systems need to be tested in real situations. The system is not just science and ‘hard technology’ associated with the detection and communication of the warning. The system is as much ‘soft’ technology associated with the organization and management of tsunami risk. This involves the setting up and running of national services, the training of the human resources required, and the implementation of complex emergency preparedness and awareness plans at national and local levels. In addition to the Indian Ocean, the Caribbean basin has agreed to develop a regional system and is moving ahead with implementation. The United States and Canada have extended tsunami warning capabilities to their eastern seaboard. The Pacific Ocean system is actively engaged in improving protection to the South Pacific Islands and to the South-China

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Sea. However progress is slow in other regions. The Mediterranean Sea basin today is almost exactly in the same situation as the Indian Ocean before December 2004. Despite existing laws and regulations, governments have a difficulty in assessing the risk and the associated solutions, designating responsible authorities and institutions, and identifying additional sources for the recurrent costs of operation. The investment is small compared with the magnitude of the losses in an eventual catastrophic event. It becomes minimal or insignificant if one correctly conceives the Tsunami Warning system as embedded in a larger observation system for the Oceans. A specialist system that is tested very infrequently will be harder to maintain at full efficiency. That is the experience in the Pacific Ocean, although the system in reality operates constantly going on and off 30 to 40 times a year and monitors seismic activity permanently in real-time, it clearly does not receive the attention and support it deserves. Storm surges, true ‘meteorological tsunamis’, are much more frequent in certain areas of the world associated with tropical storms and hurricanes. Dikes in New Orleans were not destroyed by the winds and rain of the hurricane but by the ocean storm surges generated by Katrina. The Bay of Bengal and the Caribbean regions are exposed to recurrent storm surges and have a heavy historical record of losses of life and property. Storm surges and tsunamis can share much of the detection networks. The infrastructure at the national and regional levels is very much the same. A multi-purpose Ocean Observing System, with a wide range of users in the public and private sectors of the world economy, is the right approach and way forward.

2. Knowledge and Information About the Oceans as a Global Public Good

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Recently the United Nations convened in Geneva and Tunisia for the World Summit on the Information Society (WSIS). The Summit confirmed that we are witnessing the transition from societies where the property of large material assets and heavy industries was the main factor in economic development, to societies where information and knowledge are increasingly playing that role. This trend is at the base of the emerging new paradigm of ‘knowledge societies’. It is my view that given the level of globalization in other domains, particular in the economy, the creation of the instruments to provide effective protection to the life support system and the global public goods will become a major challenge to the international community during the 21st century. It is encouraging that one of the first independent groups active during the first decade of the century had been the International Task Force on Global Public Goods, co-chaired by Ernesto Zedillo and Tidjane Thiam. The group, composed of 17 members serving in their personal capacities, represents a variety of interests and sectoral and regional experiences and expertise. As highlighted in the summary report of the Task Force published in 2006, 2 Knowledge is perhaps the clearest example of a public good. Once knowledge is generated it can be shared, in principle, by many people at the same time and it is hard for creators of knowledge to maintain exclusive property of it. Hence, if left to market forces alone, there would always be a tendency to under invest in the generation of knowledge. Knowledge is not only a national public good but a global public good as well, because its diffusion is not 2

International Task Force on Global Public Goods. 2006. Meeting Global Challenges: International Cooperation in the National Interest. Summary. Stockholm, Sweden. vi + 18 pp.

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stopped by borders. People in any nation could in principle benefit from scientific or technological knowledge produced in other nations.(…) The spontaneous globalization of knowledge does not occur, however, largely because many countries, due to deficiencies in their educational systems, have limited capacity to assimilate existing and new knowledge. Another important barrier to spontaneous globalization is that knowledge has been made to some degree excludable by the adoption of intellectual property rights.(…) This and other changes in the intellectual property system have resulted in a relative contraction of the common knowledge platform. The knowledge gap between the rich countries and the majority of poor countries is widening and with it the possibilities of closing the development gap between them. Furthermore, the role of knowledge as an input for the production of other global public goods is also being limited by the protection of intellectual property as clearly exemplified by the cases of R&D for disease control and climate change. Environmental information, although traditionally collected and distributed as a public service, is part of this fast changing reality. We need environmental information for many reasons: to understand better the way the environment provides the ecological services essential to the survival of humankind, to design better tools to manage the environment, to protect it from unwanted negative impacts as the result of human-made activities, and finally, we need to implement a development strategy for critical global environmental information compatible with the preservation of the integrity of our planetary life-support system. Although information about our environment has been collected by different means all through the history of humanity, never before have the demands been as large as today. On the other hand, never before have the material and intellectual tools been available to gather that information at different spatial and temporal scales as advanced as they are today.

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The term environment and environmental, in my view, does not capture the profound implications of the situation we face. The issues at stake are of a more fundamental nature and scope, touching on the ethical and philosophical underpinnings of our common destiny as members of the human species, of humanity. There is only one planet with life in the known universe. Water in liquid state is only present on earth and life, in all its known forms, depends on the existence of water. Without water there will be no life on earth. The life support system of the earth is unique and its integrity depends on the balanced interplay of many natural cycles and process. None of these processes are static, given, or granted to exist forever. Living organisms participate in this interplay and influence most of the processes involved. The continuity of life depends on the maintenance of this complex dynamic equilibrium. For the first time in history, humanity is capable of influencing some of these global processes. As a result of the massive mobilization and burning of fossil fuels from their natural reservoirs, the accumulation of CO2 in the atmosphere and in the surface layers of the ocean is altering the acidity of the ocean and the heat balance of the planet. Some of these changes can be unforeseen. Several chemical compounds used in different industrial applications once emitted into the atmosphere, could significantly deplete the stratospheric ozone layer that shields the planet from damaging UV-B radiation. The destruction of the molecules of ozone by chlorine from the emissions of chlorofluorocarbons, utilized in all refrigeration devices, could have proven lethal to all life on earth. The Montreal Protocol, adopted in 1987, stipulated that the production and consumption of compounds that deplete ozone in the stratosphere—chlorofluorocarbons (CFCs), halons, carbon tetrachloride, and methyl chloroform—were to be phased out from their industrial usages by the year 2000 (2005 for methyl chloroform). The

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successful enactment of the Montreal protocol is one of the few good pieces of news in the environmental front since the Rio Conference in 1992. Our knowledge of how the life support system will react to some of the pressures is limited and incomplete. In science nothing can replace observation. We need to monitor these natural systems to react timely to unforeseen changes. We need to deepen the scientific understanding of these interactions through the development of earth system science. From the perspective of the protection of life support system of the earth, the scale and the stakes grow in magnitude. We need to truly evolve our thinking towards a new paradigm: ‘One Planet, One Ocean’. In this new context, the geopolitical concepts of maritime or ocean spaces lose their current meaning and the challenge is to redefine the problem of the life support system as the ultimate, universal Global Public Good, a true Global Commons. The ocean, its natural systems and resources are the common patrimony of all humanity and its uses are regulated by a single, universal legal framework: The UN Convention on the Law of the Sea (UNCLOS).

3. The Origins of the Global Ocean Observing System

Much of ocean research, by necessity, is international. This is the cornerstone principle of the creation of the IOC 3 . The following quotation is from a statement made by Dr. Roger Revelle in 1960, then director of the Scripps Institution of Oceanography and Head of the USA delegation to the 3

The Intergovernmental Oceanographic Commission, IOC, was established 1960 by resolution 2.31 adopted by the General Conference of UNESCO at its eleventh session, and in conformity with the recommendation of the Intergovernmental Conference on Oceanic Research held in the premises of the Danish Parliament in Copenhagen 11- 16 July 1960. The Commission met for its first session in Paris at UNESCO Headquarters from 19 to 27 October 1961.

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preparatory meeting of the first Intergovernmental Conference on Oceanic Research that recommended the creation of IOC; Scientific problems that require nearly simultaneous observations over a wide area or over the entire ocean also demand international co-operation in taking the observations, and close co-ordination to ensure comparability of results. An example is the present attempt to determine the total carbon dioxide content in the atmosphere and the change in this content with time as a result of the input from fossil fuel combustion and the loss to the ocean and biosphere. One of the questions we are asking is: Where is the carbon dioxide absorbed by the ocean? Does it remain in the surface layers or does it extend throughout the ocean volume? Another example is the proposal to study the transient state of the sub-surface currents in the Indian Ocean under the action of the changing monsoon winds. To attack this problem, synoptic observations made by many ships in a relatively short period of time are needed. It is a tribute to Revelle’s foresight that this statement, made 46 years ago, retains all its scientific value. As a rule, all the major ocean research programs sponsored by IOC in the last 46 years developed new techniques for observing the ocean and left behind a legacy of permanent observing systems, i.e. ensembles of automatic instruments operating over vast extensions of oceans deployed to acquire data and information on a specific set of properties of the world ocean. A good example of these observing systems is the Tropical Atmosphere Ocean or TAO array of buoys in the Equatorial Pacific. Established for the first time during the TOGA Program 4 , these 70 buoys moored to the seafloor collect data on the physical properties of the ocean to 4

The Tropical Ocean and Global Atmosphere (TOGA) project (1985-1994) successfully linked the interaction of the atmosphere with the circulation of tropical oceans. As a result of TOGA, periodic episodes such as El Niño can be predicted several months in advance. Major economic benefits are being gained from the use of these predictions in regions where they can be applied.

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a depth of 2000 meters and broadcast this information to land-based centres and laboratories. The TAO array is part of a wider observing system, extending to the whole Pacific Ocean to monitor and forecast El Niño (Figure 1).

Fig.1. Red dots in the Equator are the moored buoys that belong to the TAO array. Light blue lines are the routes of merchant vessels equipped with data collecting gear. Yellow dots are tide-gauges participating in GLOSS. All these systems belong to the Initial Global Ocean Observing System, in operation since 1997. These observing systems, coordinated by the IOC in cooperation with the World Meteorological Organization (WMO), are ‘surveying the oceans on real-time’. If oceanographers were restricted in the past to the use of dedicated vessels to go out at sea to collect the data and develop information, oceanographers of today can resort to these ocean-observing systems to gather data over huge extensions of the world oceans. Since these data are collected under the auspices of the IOC and WMO, the newly collected data are readily made available on the Internet, and following the data policies of these UN organizations, are open to use by anybody. The improvement of numerical weather prediction is one of the most remarkable

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scientific, technological, and societal achievements of the 20th century. A similar improvement is taking place for ocean weather. The term ocean weather is mostly applied to the so-called mesoscale variability associated with scales of 100 km and 100 days. According to Munk (2000) ‘mesoscale currents are responsible for more than 95% of the ocean’s kinetic energy.’ Wave forecasting is also an integral part of ocean weather. Local ocean weather is often fully decoupled from local atmospheric weather, i.e. winds direction and intensity can be in opposite direction and of completely different intensity than surface ocean currents. This is a critical piece of knowledge for ship routing, as some of the competitive yacht mariners have recently found out using current forecasts provided by Mercator, the French consortium developing ocean numerical modelling and forecasts [Pierre Bahurel, pers.com.] As industrial operations on the continental shelf increase, ocean weather forecast is becoming more important and is supporting an expanding market of private ocean services. Today there are organizations that daily run their numerical models of the ocean to assess the changing ocean conditions and to produce an updated forecast. Not all oceanography can be done through the use of existing observing systems, but we cannot underestimate this major change. The concept of the Global Ocean Observing System, (GOOS), was proposed for the first time at the IOC in 1987 and was officially endorsed as a programme of the Commission in 1991(IOC 1991a) 5 . As clearly stated in the intergovernmental resolution informing the UN Conference on 5

The 16th Session of the IOC Assembly (March 1991) adopted IOC Resolution XVI-8: ‘Considering that a Global Ocean Observing System (GOOS) should ultimately be able to supply enough data to support the evaluation of natural and human-induced climate changes and for the long-range forecasting of weather and climate over the whole planet, as well as regional predictions of ocean conditions for fisheries, coastal-zone management, and pollution studies, for use by Member States, […] Decides to undertake development of a Global Ocean Observing System (GOOS); […]’

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Environment and Development (UNCED) of its creation, GOOS is more than just science: GOOS is required for monitoring and predicting environmental change to meet global, regional and national interests. This system, to be coordinated by IOC, will provide for regular observations of major physical, chemical and biological properties of the World Ocean, including the coastal zone and enclosed and semi-enclosed seas. It will address such issues as global climate predictions and sea-level rise, as well as the coastal marine environment problems of member States (IOC 1991b). From a scientific point of view, GOOS was conceived first and foremost to overcome some fundamental limitations of oceanographic sampling. Paraphrasing Clauzevits, one could say that ‘GOOS is the continuation of ocean research by other means’ or better, that the natural and logical next step in large-scale ocean research, called for new ways of organizing research efforts. Constraints imposed on ocean research by the use of vessels 6 , made it almost impossible to study the variability of oceanic processes, requiring repeated sampling in time. Even the so-called synoptic descriptions of processes were always subject to some aliasing by the mere fact that those descriptions were not obtained by the simultaneous observation of the whole process, but rather by sequential sampling from a single ship moving along a trajectory in space and time. As stated by Walter Munk in the introduction to the book Satellites, Oceanography and Society (Halpern, 2000), ‘if it were to choose a single phrase to characterize the first

6

The cost of building and running research vessels is a disproportionate high fraction of ocean research costs. This factor has severely limited the development of oceanography around the world. Ocean research cannot compete on an equal footing with most types of academic research, and calls for special ways of organizing national research to take care of this particular need. The daily operation cost of many research vessels is comparable to the daily cost of a large research facility like a large observatory or an accelerator of particles.

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century of modern oceanography, it would be a century of undersampling’ (Munk, 2000). But the study of ocean variability and ocean predictability is essential for the understanding of the earth climate and of climate change. In the conference that gave rise to Satellites, Oceanography and Society, another oceanographer, Carl Wunsch, when answering a question from the audience after the presentation of his paper on decadal ocean variability, in his characteristically blunt style said: ‘[oceanographers] will not be able to provide any scientific statement about the variability of many oceanic processes before we have collected… let’s say 100 years of quality observations’ 7 . Again, not all scientific understanding of oceanic processes is subject to such demanding sampling requirements in the time-domain, but the recognition of these limits has prompted the community to think ‘out of the box’ and propose solutions that could be collectively promoted and implemented through international cooperation. The IOC took the blueprint of GOOS to UNCED in Rio de Janeiro in 1992. The Summit did subscribe to the recommendation made by the Second World Climate Conference to build a Global Climate Observing System (GCOS) and GOOS became the Ocean Component of GCOS. As such, GOOS is sponsored by the World Meteorological Organization (WMO), the United Nations Environmental Programme (UNEP), the International Council of Science (ICSU), and by the IOC that acts as the lead agency for its development. As part of their mandates, the individual systems integrated into GOOS have been under development by the IOC in cooperation with the 7

The title of Carl Wunsch’s paper was ‘Is the Ocean Predictable Over Decades, and How Might One Find Out?’. The quotation is my own recollection of Carl’s answer to a question on the variability of El Niño type of phenomena and should not be taken as a verbatim rendition of his own formulation.

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WMO during the last three decades. GLOSS for sea-level and IGOSS for the collection of data on the vertical structure of the upper layer of the ocean and the International Tsunami Warning System, are examples of permanent observing systems developed by the IOC, integrating data from tide-gauges, vertical probes launched by commercial ships, fixed and drifting buoys, bottom seismometers, and orbiting and stationary satellites.

4.

Public Services Based on Atmospheric and Oceanic Observing

Systems

The development of these new capabilities first in meteorology and later in oceanography enabled the development of permanent ocean services, i.e. the continuous, routine delivery of information-products containing forecasted conditions for a given set of ocean properties. They are produced and distributed free as public services for the use of a wide range of end-users. However, as we will see below, the information in which these products are based is by no means restricted to public service applications. Some examples of current public service operations supported by the WMO and IOC through the Joint Technical Commission for Oceanography and Marine Meteorology (J-COMM) are: --

The Global Maritime Distress and Safety System (GMDSS)

is an integrated communications system using satellite and terrestrial radio communications to ensure that no matter where a ship is in distress, aid can be dispatched. Under the SOLAS Convention 8 , the GMDSS provides for the dissemination of

8

SOLAS, the International Convention for the Safety of Life at Sea under the IMO (the UN International Maritime Organization), was adopted on 1 November 1974,

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warnings, weather and sea bulletins broadcast via Inmarsat-C SafetyNET by all national or maritime meteorological services appointed as Issuing Services. There are 17 metareas covering the global ocean (Figure 2) where information to all vessels at sea is available on 24/24 hours, 7/7 days basis. --

The Marine Pollution Emergency Response Support

System. MPERSS's primary objective is to have in place a coordinated, global system for the provision of meteorological and oceanographic information for marine pollution emergency response operations outside waters under national jurisdiction. The areas covered have the same geographical distribution as those for the GMDSS. --

The JCOMM Electronic Products Bulletin [J-EPB]

provides information on real-time oceanography. Its continuing evolution is being implemented at the IRI for Climate Prediction at the Lamont-Doherty Earth Observatory [LDEO] of Columbia University, in response to the needs of the oceanographic and earth science communities for real-time oceanography. The format of the global analyses is standardized in such a way that monitoring products can be compared for decision making. In addition, the different data sets are available online.

and entered into force the 25 May 1980. The SOLAS Convention in its successive forms is generally regarded as the most important of all international treaties concerning the safety of merchant ships. The first version was adopted in 1914, in response to the Titanic disaster. The current version provides for a ‘tacit acceptance procedure’ designed to ensure that successive changes are made within a specified and acceptably short period of time.

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Fig. 2. Metareas in which the global ocean is divided to provide safety warnings through GDMSS. GMDSS is coordinated through J-COMM the IOC-WMO Joint Commission of Oceanography and Marine Meteorology. --

Wave weather and climate services: The Wave Programme

under WMO was established in 1984 to provide sea-wave analysis and forecast services. Codes for the real-time exchange and reporting of marine surface data including directional wave spectra

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have been developed. National focal points for the programme have been nominated. Now the programme is being extended to also cover storm surges. --

Sea ice services: Navigation in ice-frequented waters is a

hazardous operation. For this reason, national sea-ice information services have been established in many countries to provide support for such operations through the provision of both climatological and real-time ice analyses and forecasts. International coordination and cooperation in this activity is done principally through the Expert Team on Sea Ice of JCOMM and through the Data Buoy Cooperation Panel (DBCP), including its action groups the International Arctic Buoy Programme (IABP) and the International Programme for Antarctic Buoys (IPAB).

5. GOOS as a Distributed Large Research Facility

The possibility of integrating data from ocean observing systems together with the data from space satellites is changing forever the way we do oceanography and is bringing into being for the first time a true operational oceanography that can support the generation of new information products in real-time. The convergence of three independent factors explains this development. First, the new techniques used today collect data and information on the surface, but most importantly, they collect under the surface of the ocean. These techniques rely on advanced electronics, miniaturization, and extremely efficient circuitry to save power and prolong the average life of autonomous instruments. These instruments produce the same or better quality information with a fraction of the cost of dedicated

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research vessels. Secondly, techniques have been developed to observe the ocean from space. As discussed before, oceanographic observations from research vessels imposed severe limitations on the sampling of ocean processes. Satellite oceanography made possible for the first time true synoptic repeated sampling of ocean processes in the time domain. Thirdly is the phenomenon of the constant progress of computer technology. Computer power roughly doubles every two years. This has enabled the use of numerical models with sufficient spatial resolution to integrate all this new information into meaningful, realistic projections and forecasts. In science, the observing tools have an intimate relationship with the subject and the methods we use to study nature. Scientists, by training and at least publicly, do not pose questions that cannot be answered. As any graduate student knows, finding a good subject for a Ph.D. thesis is to find a small system that hopefully can lend itself to controlled experimentation under inexpensive and not too difficult conditions. From the telescope of Galileo to the Square Kilometre Array (SKA) radio telescope to be built in South Africa, from the microscope of Robert Hooke to the largest accelerator of particles of CERN, the instruments scientists use determine to a great extent the subject of study and more importantly the ability to find the right answer. Conversely, the structure of science is such that it can be precisely known what will not be known without a given instrument. For example, in 1993 the decision not to build the largest particle accelerator, the Superconducting Super Collider, was adopted. Before and after that decision, Steven Weinberg, one of its proponents, could exactly explain what we could learn about Higgs particles with the SSC (Weinberg, S. 2001a, b, c). However, more relevant to us is the conclusion arrived in the book Oceans 2020, the last assessment of trends in ocean science conducted by

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IOC in conjunction with SCOR and SCOPE. In the last chapter of the book, The Vision to 2020, the editors, John G. Field, Gothilf Hempel, and Colin P. Summerhayes (2002) identified 12 areas or topics playing a special role in the development of ocean science in the next 20 years, the first three of these 12 are straightforward technological innovations or applications: 1) remote sensing; 2) the information revolution and ocean sciences; and 3) the globalization of modelling capacity. In their own words: We offer a vision in which remote sensing, information technology, and improved communication radically change the ways information is gathered about the oceans and the problems they pose and in the way they are presented to society. It is for this or the next generation of oceanographers to prove them right or wrong. Today the international scientific community is actively engaged in the planning of CLIVAR 9 the Climate Variability and Predictability Study, the newest and most wide-ranging component of the World Climate Research Programme (WCRP). The objective of CLIVAR is to move the forecasting window for weather and climate from days and weeks, to seasons and into the inter-annual range. The promotion of CLIVAR would have been unthinkable without the significant progress achieved in observation systems of the atmosphere and the oceans. To me, from a scientific point of view, a global observing system is in fact a highly distributed large scientific facility, analogous to a large particle accelerator or the SKA. It is an instrument that is allowing us to attack new scientific 9

TOGA and its two successor programs WOCE the World Ocean Circulation Experiment and the Climate variability Programme, CLIVAR, are part of the World Climate Research Programme, WCRP, established in 1980, to examine to what extent climate can be predicted, and to what extent man influences climate. WCRP is jointly sponsored by WMO, the International Council for Science (ICSU) and the Intergovernmental Oceanographic Commission (IOC) of UNESCO.

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questions. I have no doubt that GOOS, as a global observing system, is the right technology and the right observation instrument for CLIVAR.

6. A New Engineering

But I also believe that GOOS is more than just the next observing instrument for oceanography. The technological developments involved in global observations, and especially the integration of the three components described in the previous section, are enabling a new engineering, that of global observing systems. To mark the difference, I describe it as a new engineering because what we are witnessing is the emergence of a secondorder technology, that is, a new technological system integrated by the combined use of several new technologies deployed at the global scale. As important as the individual accomplishments of the different first order components are, they are not the key to this technological innovation. As other technical developments of this kind, global observation will be a major technological breakthrough, not so much for the technologies that go into it but because of the technological applications that will come out of it. In a rudimentary comparison with computers, it is not so much the basic ‘flip-flop’ circuit at the base of any digital computer, or the electronic components that build it that are the major breakthrough of digital computing. Rather, it is the many applications that increasingly faster numerical calculations enabled them to do, including the simulation of special functions at which analogous computers were much better. Similarly, global observing systems will be open to the practical experimentation by a large community of users; ‘a community of practice’ so characteristic of the early phases of new technological innovations. We will have to learn how to use it to its limits, as any other new technology in

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the history of humanity; it will be available to open exploration and exploitation in new and unforeseen directions. Similar technological innovations had taken place most notably in space exploration. Serendipity and ingenuity are the right words to describe how these remarkable discoveries have found their way into our everyday life. This is a potentially rich new technology. With the global system already established, it is possible now to apply better sampling strategies in time and space. For example, a particular energetic process, a tropical storm with a high probability to become a hurricane, could be better observed by increasing the frequency of sampling over the area in which it is developing. One can envision in the not-so-distant future, sub-systems components, satellites and in-situ networks, jacked-up in sampling frequency over a given area as feedback from interactive forecast systems running adaptive assimilation models become available to an operational control centre. Of course these developments are not just limited to oceanography. Similar developments are taking place in other areas. Many of these tools have been applied on land to monitor the surface waters, terrestrial ecosystems, forests, plains, crops, the atmosphere, including the chemistry of the high atmosphere, the ice-cover, and the very substantial changes produced by humankind through the changing patterns of land use.

7. The Challenges of the Implementation of GOOS

The implementation of GOOS is coordinated by the IOC and is financed by the Member States of the IOC. That is true but is also a simplification. The scientific community in oceanography has done a remarkable job in designing a light, cheap and distributed management for

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the new observation systems. However, moving an engineering system from prototype and research status to the operational domain implies significant changes. Operations require dedicated specialists and careful plans to deploy, maintain, and constantly upgrade the component systems. A system of quality control of the output is needed to detect early any sign of degrading elements, and most importantly, you need the material infrastructure to operate and sustain the system in time. In this sense the IOC has a clear advantage as an intergovernmental organization to be the hub of this distributed system, because among other things it can guarantee the universal character of the system, set up the standards, facilitate the exchange of primary data and information, and help in the development of capabilities around the world. Of course the information obtained from these systems, once in the public domain, can be used, and is being used, by specialized organizations to generate and provide a wide range of applications and services, both public and private. There are several aspects to this challenge.

7.1 The first challenge is incremental funding. Although it is the funding of ocean research that has allowed the deployment of most of the observing systems that we have today, the financing of the sustained collection of data streams to be transformed in permanent ocean services on which other societal, public, and private applications will depend, cannot depend exclusively on the funding for science. At first sight, since there is not any other obvious source to fill the gap, this is seen as a huge menace to the stability of the international research efforts. Of course, this is not only a money problem. It is hard to imagine the best scientific minds of the world

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dedicating a significant proportion of their work time to the task of running, maintaining, and upgrading of a full-fledged observation system. But this is a very incomplete analysis. Until now, a very pragmatic approach has been used to promote the development of GOOS. The TAO array, mentioned above, was planned as science 19 years ago, but today it can also be considered as an operational array that is routinely maintained by NOAA from the USA 10 and by JAMSTEC from Japan 11 . For some, TAO is justified exclusively through research objectives. That is certainly true if the focus of research is to study the interdecadal variability of El Niño. For others, TAO is the backbone of the El Niño forecasting system. There is also a second-order consequence. If funded as research, intellectual ownership of the project (and associated infrastructure) and the credit for its operation lies with the individual scientist or with a small team of identifiable scientists. If funded as an operational activity, that individual presence disappears melting into the operational plan of a large organization. Scientists get their recognition through the fulfilment of wellestablished, time-honoured practices, mainly through publishing in anonymously peer-reviewed journals. Data development and production, early release of data sets, are not recognized per se as a valid scientific contribution. Even some of these practices are pitched against some of the new developments. Early, or real-time release of data is not encouraged by the current practice of only recognizing fully peer-reviewed articles as bona fide credentials for merit and promotion in the academic world. There are some efforts to innovate in some of these practices by creating new 10

The part of the TAO array supported by the USA was pledged in 1999 by the American delegation as a contribution to the initial GOOS system. 11 Moorings along and to the west of 156E were deployed and are maintained by the Japan Agency for Marine-Earth Science and Technology (JAMSTEC), now part of MEXT, the new Ministry of Education, Science, Technology and Sports of Japan.

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incentives and establishing new standards, but these changes will take time to be fully in place. Of course, nothing in life is black and white or remains static forever. Programme managers in most scientific funding agencies are scientist themselves and can see both sides of the argument and more importantly they understand the importance of these innovations in the long run. It is one of the most optimistic signals in the implementation of GOOS that four space agencies, two operational and two research agencies, agree to finance the continuation of the ocean altimetry missions despite the fact that it is not pure research, nor has it attained full operational status. Here we can say that the views promoted in this paper were given at least the benefit of the doubt. Are these just a matter of names or justifications? I do not believe so. We need to recognize that in this phase of development, both types of funds are needed on their own merits, but at the same time, the community or at least its leadership has to responsibly assume the huge task of enlarging the support that is essential to succeed.

7.2 The second challenge is institutional building. Member States at the national level, and the IOC itself at the international level, need to decide on the institutional arrangements to support the development of operational oceanography. Effective use requires organizations capable of processing the data, modelling and generating and distributing information products to end-users. It is not just a matter of securing access to the data, important as this aspect is. These organizations do exist today in the public and in the private sector. There are different options here. Is this a development that each Member State of the IOC wishes to face independently, or would a ‘joint’

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effort within IOC, organized at regional scale, for example, be possible? To be clear, out of the 135 Member States of the IOC, the largest proportion of the investment going into GOOS is supported by a small number of developed countries. Although some systems, most notably sea-level measurements do count with significant contributions from developing countries in all five continents, developing countries are minority contributors to the global programs of automated floats, moored and drifting buoys, and satellites. Furthermore, the climate component of GOOS is a true global scale effort, based on well established science and technology. Local and coastal processes influencing water quality are of greater interest for developing member states. These processes require chemical and biological measurements, beyond the physical measurement of heat and momentum. These techniques are still under development and lack a unified underpinning set of theory. Coastal GOOS is only recently starting its implementation phase. Could it be that the global observation of the ocean could be the goal of a private consortium? This last hypothesis brings me directly to the next point.

7.3 The third challenge is economic in nature. Global observations constitute a very particular case of all the observations that can be collected. The main feature is the very large scale at which they are collected. In the upper limit, GOOS will be sampling properties of a single system: the global ocean. The sample size is one. Of course this is a simplification just to show the unique nature of the system that we are developing. The single global observation is interesting only as the upper boundary condition to all the other smaller scale processes. Starting from the global observation, at each spatial and

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temporal scale there are specific properties of the ocean that are related to that scale and others that spill-over to other scales. In theory, full forecasting capabilities would be available only if all scales are properly sampled. This is a huge technical requirement and challenge for the new engineering. Conceptually and practically this feature of a global system has profound economic implications. In GOOS, what is a ‘local’ observation collected in the East Coast of North America, becomes a ‘remote and distant’ observation for a forecast in the North Sea, and vice-versa. A local observation does contribute to answer a local question with some degree of accuracy and precision. This is why it is collected in the first place. However we know that the remote broadcasting of signals carrying significant amounts of energy can alter and do alter the local canonical answer in unpredictable ways. From a practical point of view, there are absolute limits (spatial scale) beyond which appropriability of data from private observation networks face diminishing returns and a point where profitability eventually breaks down. Data originating from the local scale, where it can be considered in economic terms a ‘rival good’, start loosing its ‘rival’ character, as they are collected at larger scales, becoming essentially ‘nonrival goods’ at the global scale 12 . I call attention to this property of global 12

I cannot refrain from giving you my hypothetical vision of how EuroGOOS was started. During the development of the offshore oil and gas exploitation in the North Sea, I imagine one day the rendez-vous of two vessels from two different R/D private companies, deploying instruments in an area of the North Sea to provide services to oil companies operating, let’s say off the British Isles and off the coast of Norway. After avoiding interference with each other out at sea, back in port, senior officers of both companies got together and ask themselves what it would take to have an agreement to share the data from a single instrument array, saving the cost of the extra array (half a million USD for a moored array), or perhaps jointly deploy the extra array in an area in which neither of the two had the resources to invest if working alone. They sat down, wrote the specifications,

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observing systems, because I believe it opens an avenue to develop a realistic model to build public and private services under a common technological platform. I believe that such a model exists today in another domain: the Internet.

7.4 Crossing the North-South divide: the challenge of capacity building. Today, only in very few countries of the south there are organizations prepared to make immediate use of the increased data streams produced by GOOS, transforming them into useful ocean services. These organizations do exist today in the developed world, both in the public and in the private sector. In the developing world, the challenge is bigger and relates to capacity building in the broadest sense possible, not only in science and technology, but in policy design, management skills, and economy, that is, capacities not only in the know-how, but fundamentally in the know-why, using the words of professor Nazli Choucri from MIT (personal communication). Our experience in the IOC and in the WMO is very encouraging and is based on international cooperation. Many of the difficulties can be overcome and the track records of these two UN organizations show that is possible to operate a global system that is inclusive of all nations of the world, providing public services to all its members. What is required are clear, stable rules to enhance cooperation efforts among members of the system. precision, accuracy, dynamic range of the linear response of the transducers, frequency of sampling, etc.; exactly what we have done in IOC to build GOOS, and they then agreed to share the data in a given format. The knowledge that allows them to be specialists and provide good advice to their clients is not in the data; it is in the knowledge to use that data. However they cannot use that knowledge without the data.

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Some of the platforms for the new systems are large capital investments, and as one moves from north to south, they become relatively even larger. But if the building of an integrated system becomes possible, as the promise of GEO seems to suggest, there would be a division of labour in the building of the joint system that could make this North-South transit easier. If the exchange of data facilitated by interoperable systems becomes a reality, the specialist organizations that are needed will depend on much cheaper technologies and knowledge. It is the knowledge that allows them to be specialists and provide good advice to their users. Their ability to offer services (and compete) is not in the data; it is in the knowledge to use that data. However they cannot use that knowledge without the data. If clear rules of the game backed by basic, solid agreements are established, major modelling centres running the more expensive global models are not needed in all nations of the world, and a regional approach agreed within the IOC could be used to significant advantage. Finally, there is a fundamental ethical or at least equity issue at stake. If we are speaking of protecting the life-support system of the planet, including the major ecosystems of the planet that comprise it, we are all involved and everybody should have equitable access to the information and the derived benefits.

8. Private and Public Services in a Post-Internet Age

There is an important corollary to the analysis in the previous section. Since the potential users of these new information products come from a wide range of public and private activities, most of them on land, it

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will be necessary to efficiently segment the markets between public and private agents, with the goal of maximizing total economic benefits to society. Although society might wish to directly recover the cost of collecting the data by selling the data itself, I am firmly convinced that is the wrong approach. The benefits to society are increased by the free and open exchange of primary data and first order information products and by allowing the development of a variety of specialist organizations that can tailor their products to the specific needs of their clients. These extra layers of specialists provide jobs, generate revenues and taxes and secure efficient servicing of final users. The specialists might as well develop additional local observing networks to improve their own products. For example, the detailed forecasting of the atmospheric circulation for purposes of airquality control and air-pollution mitigation over a city does require the establishment and operation of ad hoc dedicated instrumental networks. The decision of who owns and runs these denser local networks will be adopted based on the nature of the services and is a local political and economic decision, i.e. to be adopted by each parliament or national government. However in order to develop a robust, shared technological platform among different users, public and private, there are some basic principles that will have to be agreed upon and some minimal basic rules to be established. In the declaration of the Summit of Evian of the G8 countries in 2003 there is a call to ‘Favour interoperability with reciprocal data-sharing among observing systems’. This starting declaration by the countries that are the owners of many of the assets backing earth observations is very encouraging and points towards an already known model: the Internet. The Internet is fully based on the technological interoperability of the systems that participate. This property, although potentially available in

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the technology, the large mainframes of the seventies run under UNIX, was not an intrinsic property of the technology itself. But there were compelling reasons to develop inter-connectivity and larger computing and storage capacity to reach critical mass in targeted areas of research. In the case of earth observations it could be developed in a similar way, but will require cool-headed economics, technological mastery, and political will. As we will see in the next section the Group on Earth Observations, is proposing exactly this approach for the architecture of a system of systems integrating the several observing systems and agencies interested in its development 13 .

9. Beyond Oceans and Atmosphere: Global Earth Observations on Its Own Merits

It is evident that I have been using the term earth observations in this paper with the meaning of integrated remote sensed and in situ observations. However this is not obvious to many because the term has a history and requires some clarification. In a broad sense, remote sensing is the ‘collection of information about an object without making physical contact with it’. Conventionally earth observations is often described as the observation of the ‘earth’s

13

2.5.1 Agree on interoperability objective – As a system of systems for Earth Observations, GEOSS will need to encompass many existing and future individual observing systems that are separately managed by management domains at any level of government, as well as possibly by commercial, academic, and other nongovernment organizations. This objective demands high interoperability—that is, differences among systems must not be a barrier to tasks that span those systems. Because interoperability agreements must be broad and sustainable, fewer agreements accommodating many systems are preferred over many agreements accommodating few each. From: Architecture Subgroup Report 2004 GEO4 DOC 4.1(2) - REV 2.0;

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surface and atmosphere viewed from above using electromagnetic radiation […] this narrower definition excludes such techniques as seismic, geomagnetic an sonar investigations, as well as medical and planetary imaging’ (Rees 2001). I am sure that more than one oceanographer actually twitched when reading the suggestion to exclude ‘sonar’ from the toolkit for earth observation. The ocean, that is 70% of the earth’s surface, is essentially ‘opaque’ to electromagnetic radiation. Remotely sensed electromagnetic radiation by satellites accurately reflects properties from a very thin layer of the ocean, the so-called ‘skin’. Other properties must be inferred by extrapolation of the observed surface properties, to the vast volume of the ocean. This extrapolation is inherently uncertain and inaccurate. On the other hand, sound propagates long distances in the ocean and is used to ascertain a large variety of ocean properties, including temperature and heat. No matter how much order this techno-driven definition can produce, clearly

earth

observations

cannot

be

just

electromagnetic-based

observations from above, no matter how important and valuable these observations are. In the origin of GOOS, in the eighties, the dominant preoccupation was climate change. We wanted to ascertain the role of the ocean in climate change. We still are at it, but society is shifting gears and asking science to help directly with economic development and the alleviation of poverty. The main societal concern has shifted to sustainable development in a more general and comprehensive way than in the eighties and nineties: to improve the economic operations that enable development by taking into account the limits set up by existing natural boundaries. Nations have agreed on the need to protect the global ecosystems, the integrity of which depends on the

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stability of the life-support system of the planet. It is not just climate anymore. In fact, UNCED in Rio de Janeiro in 1992 endorsed three global observing systems: GCOS, the Global Climate Observing System, development of which was to be led by the WMO; GOOS to be led by the IOC; and the Global Terrestrial Observing System, to be led by the FAO. But the vision implicit in this proposal did not come across at the time. To take just one example, GCOS, the Global Climate Observing System, in the words of his former director, ‘is a system of systems, made-up by the integration of several observing systems based on land, ocean and the atmosphere’. It is clear that some critical features of climate depend on land-based processes and factors. In the control of climate such disparate processes such as chemical reactions in the high atmosphere or the physiology of trees in a forest play a key role. When GCOS was established some of the networks needed were already in place, although suffering from a constant degradation because of lack of investments. However, others needed to be built from scratch. In 1996 the agencies involved in the UN sponsored Observing Systems 14 subscribed to a common strategy for the joint development of these efforts establishing a permanent mechanism of consultation. In 1998 the same agencies, with ICSU as a partner, decided to join efforts with CEOS the Committee for Earth Observation Satellites, blending their efforts into a common Integrated Global Observing Strategy (IGOS) 15 . IGOS is

14

The World Meteorological Organization, WMO, the United Nations Educational, Scientific and Cultural Organization, UNESCO, the Intergovernmental Oceanographic Commission, IOC of UNESCO, the Food and Agriculture Organization, FAO, and the United Nations Environment Programme, UNEP. 15 IGOS involves the major space-based and in situ systems for global observations of the earth, including, in particular, the climate and atmosphere, oceans, land surface and earth interior. IGOS has contributed to improve governments’

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being managed by an IGOS Partners Forum, which will further the definition, development and implementation of a unifying strategy. The World Summit on Sustainable Development in Johannesburg, South Africa came to an end on 4 September 2002. In the words of United Nations Secretary-General Kofi Annan, This Summit will put us on a path that reduces poverty while protecting the environment, a path that works for all peoples, rich and poor, today and tomorrow. (…) The Summit has also generated concrete partnership initiatives by and between governments, citizen groups and businesses. These partnerships are bringing with them additional resources and expertise to attain significant results where they matter—in communities across the globe. IGOS declared itself and was recognized as one of these partnerships in Johannesburg. Not only did this happen at WSSD, the Johannesburg Plan of Implementation agreed by heads of States, contains an explicit call to [P]romote the development and wider use of earth observation technologies, including satellite remote sensing, global mapping and geographic information systems 16 .

understanding of global observing plans; provide a framework for decisions on the continuity of observation of key variables; reduce duplication; help to improve resource allocation; and assist in the transition from an exclusive research focus to the development of applications in the form of a wide variety of informationservices with important socio-economic benefits to humankind. 16 Paragraphs 132 and 133 of the Johannesburg Plan of Implementation read: 132. Promote the development and wider use of earth observation technologies, including satellite remote sensing, global mapping and geographic information systems, to collect quality data on environmental impacts, land use and land-use changes, including through urgent actions at all levels to: (a) Strengthen cooperation and coordination among global observing systems and research programmes for integrated global observations, taking into account the need for building capacity and sharing of data from groundbased observations, satellite remote sensing and other sources among all countries;

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In 2003 in Evian, France, the G8 countries analysing the outcome of WSSD adopted an Action Plan on Science and Technology for Sustainable Development chose [T]hree areas that present great opportunities for progress: co-ordination of global observation strategies; cleaner, sustainable and more efficient energy use; agricultural sustainability, productivity and biodiversity conservation (…) In undertaking these activities, we are committed to working co-operatively with other developed countries. We are conscious that, to meet the objectives of the WSSD, developing countries and countries with economies in transition need to build and strengthen their capacity to assimilate and generate knowledge for sustainable development. We reaffirm our commitment made at the WSSD to assist them through international co-operation in enhancing their research capacities. It is interesting to read the strategy proposed in Evian for Global Observations: [To] ‘Strengthen international co-operation on global observation. We will: 1.

Develop close co-ordination of our respective global

observation strategies for the next ten years; identify new observations to minimise data gaps;

(b) Develop information systems that make the sharing of valuable data possible, including the active exchange of Earth observation data; (c) Encourage initiatives and partnerships for global mapping. 133. Support countries, particularly developing countries, in their national efforts to: (a) Collect data that are accurate, long-term, consistent and reliable; (b) Use satellite and remote-sensing technologies for data collection and further improvement of ground-based observations; (c) Access, explore and use geographic information by utilizing the technologies of satellite remote sensing, satellite global positioning, mapping and geographic information systems.

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2.

Build on existing work to produce reliable data products on

atmosphere, land, fresh water, oceans and ecosystems; 3.

Improve the world-wide reporting and archiving of these

data and fill observational gaps of coverage in existing systems; 4.

Favour interoperability with reciprocal data-sharing;

5.

Develop an implementation plan to achieve these objectives

by next spring's Tokyo ministerial conference.’ Related to this commitment, the USA convened the First Earth Observation Summit in Washington, DC, the 31st of July and 1st of August 2003. There the intergovernmental ad hoc Group on Earth Observations (GEO) was created. GEO is leading the effort to integrate all the global observing systems, land, ocean and atmosphere, into a Global Earth Observing System of Systems (GEOSS). The 33 countries and 27 international organizations participating in the Summit, committed themselves to cooperate in the design of the 10-year implementation plan for the GEOSS and to build an inclusive system giving especial attention to capacity building in the developing world. The Second Summit held in Tokyo in April 2004 and inaugurated by Prime Minister Koizumi, approved a framework document that is charting the way forward in this process. The final ministerial meeting held in Brussels in February 2005 adopted the 10 year Implementation Plan for GEOSS and created GEO with a permanent Secretariat based at WMO headquarters in Geneva.

10. Outlook

Not everything is that brilliant or that simple. The goals ambitiously established by UNCED in Rio de Janeiro in 1992 are for the most part unfulfilled. With the exception of the elimination of the emissions to the

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atmosphere of freon and other man-made gases which threaten the ozone layer, most factors and trends responsible for global and climate change remain unaltered or have been even further accentuated. Part of the difficulty lies in the uncertainty of the final outcome of many natural processes that are inadvertently being modified as a result of the ever increasing use of the natural resource base and the complexity of detecting negative trends in their early stages. On the other hand, the net effects on those natural processes that purposefully are trying to be reversed by the concerted action of many nations of the world are difficult to measure. The changes being promoted, because they involve the whole planet, will have very small effects that will take years or decades to be felt and will be extremely difficult to isolate from natural variability. For example, knowing whether or not the very expensive societal measures, agreed to mitigate the effects of climate change, are having the expected effect, will pose a difficult technological challenge of its own. The science and the technology to diminish these uncertainties are available. For example, in 1999 and 2000 the IOC was engaged in the development of the first blueprint for a global ocean carbon observing system. We see this development as an integral part of GOOS as expressed in its original definition. The Global Terrestrial Observing System, GTOS, lead by FAO, is actively improving the measurement of terrestrial carbon fluxes and the IGOS partnership has developed the ‘Carbon Theme’, containing a common set of requirements to build the integrated carbon observing system for the planet. In a short note prepared for the First Earth Observation Summit in Washington I wrote: At least twice during the second half of the 20th century, there were initiatives to turn the best technologies of the

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time to look at our own planet: to discover and conquer the inner space. It is an interesting paradox that in both occasions the political commitment went towards the exploration of outer space. There is no question of the huge benefits that space exploration has provided to humanity, however the reluctance to undertake a major effort to explore and monitor all the planetary systems affecting our environment, stands as a testimony of the limits of our collective foresight. We urgently need to turn our science and technology inward to look at our own planet. Despite our late reaction, by so doing we shall acquire a wealth of knowledge that can make our interaction with nature more knowledgeable, friendly and beneficial to humankind. I still do believe what I said then. Although today GOOS is restricted mostly to the physical aspects of ocean dynamics, and in that sense is closely linked to the forecast of atmospheric weather and climate, oceanography is evolving and will enlarge its current scope to incorporate the continuous monitoring of the chemical and biological environments of the ocean. This development, driven by the growing use of the oceans and the ever-increasing impact of land activities on the ocean, will come to maturity in coming years and will be based on the most challenging and exciting pieces of ocean scientific research. The IOC has ventured to work directly with a variety of private users that are interested in trying the new information in their own management. Companies and agencies involved in energy, power, tourism, building regulation, insurance, and the financial sector have all expressed interest in cooperating with the IOC to better specify their needs of information. It is not that we are asking them to finance directly the investment, but we want them to help us to demonstrate the utility of this information for their activities and in that way put in evidence some of the

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potential economic benefits that are involved in private-users applications from earth observations. Quoting the last paragraph of the Outlook section of the Biennial Report of the IOC to the 31st General Conference of UNESCO: 52. The long-term challenge for IOC is to define a global framework in which the development of GOOS as a single, permanent, global, public-oriented service, can be achieved, with the active contribution of different segments of the society, including the private sector. This requires demonstration of the economic benefits of a common shared strategy between the public and private sector, the identification of the public and private services that can be derived and/or shared through a common observing platform and the appropriate segmentation of public and private products and users. Achieving this new vision will require the development, negotiation and adoption of international norms and agreements, especially in the area of data and information exchange and sharing.

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11. References Field, J.G., G.Hempel & C.P. Summerhayes, “The Vision to 2020” in Field, J.G., G.Hempel & C.P. Summerhayes (eds.), Oceans 2020; Science, Trends and the Challenge of Sustainability. Washington, Covelo, London, Island Press, 2002. Halpern, D.(ed.), Satellites, Oceanography and Society. Amsterdam: Elsevier, 2000. IOC. Resolution XVI-8, Sixteen Session of the Assembly, Paris, 7-21 March 1991, Intergovernmental Oceanographic Commission, Reports of Governing and major Subsidiary Bodies. SC/MD/97 Annex II, Paris: UNESCO 1991a. IOC. Resolution XVI-16, Sixteen Session of the Assembly, Paris, 7-21 March 1991, Intergovernmental Oceanographic Commission, Reports of Governing and major Subsidiary Bodies. SC/MD/97 Annex II, Paris: UNESCO 1991b. Munk, W., “Oceanography Before, and After, the Advent of Satellites” in Halpern, D. (ed.) Satellites, Oceanography and Society. Amsterdam: Elsevier 2000. Rees, W.G., Physical Principles of Remote sensing (2nd Ed.).Cambridge: Cambridge University Press, 2000. Weinberg, S., “Newtonianism, Reductionism and the Art of Congressional Testimony” in Facing Up: Science and Its Cultural Adversaries. Cambridge: Harvard University Press, 2001a. Weinberg, S., “Newton’s Dream” in Facing Up: Science and Its Cultural Adversaries. Cambridge: Harvard University Press, 2001b. Weinberg, S., “Nature itself” in Facing Up: Science and Its Cultural Adversaries. Cambridge: Harvard University Press, 2001c.

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KEYNOTE ADDRESS The International Seabed Authority and Its Promotion of Marine Scientific Research Satya N. Nandan 1 I am very pleased to participate in the 30th conference convened by the Center for Oceans Law and Policy of the University of Virginia. I thank the Center for the invitation.

I wish to thank the hosts from Ireland,

especially Dr. Peter Heffernan, the Chief Executive of the Marine Institute. I also wish to thank his colleagues of the National University of Ireland in Galway, including Dr. Ronán Long from the Marine Law and Ocean Policy Centre of the University. Of course, I would also like to recognize the President of the National University of Ireland in Galway, Dr. Iognáid Ó Muircheartaigh. I thank them all for welcoming us here and for the hospitality that they rendered to us in the last few days. I am delighted to be in Ireland not only because of this conference, but also for the opportunity to meet some of my old friends. Ambassador Francis Mahon Hayes who led the Irish Delegation at the Third United Nations Conference on the Law of the Sea (“the UNCLOS III”) is here, as is Ms. Geraldine Skinner, the leader of the Irish delegation to the Preparatory Commission for the Establishment of the International Seabed Authority and the International Tribunal for the Law of the Sea. I would also like to thank Ambassador Gunnlaugsson who is the Chairman of Iceland’s Law of the Sea Institute which is co-sponsoring this meeting. In particular, my thanks go to the Center for Oceans Law and Policy at the University of Virginia. The Center has been performing a 1

Secretary-General, International Seabed Authority. presentation can be viewed on the accompanying CD.

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Satya N. Nandan

unique task for the past 30 years in convening these Conferences where experts, academics, students, and practitioners in the Law of the Sea have been brought together. What is very important is that they have been holding these Conferences in different countries. This has given opportunity to participants from the host countries to gain access to learned presentations by experts on the current developments in the Law of the Sea. These annual Conferences have served as useful forums for exchange of views, for renewal of ideas, for identification of current issues and for updating the progress being made. This is an exceedingly valuable task that the Center performs and I want to thank the Center for this. Further, the Center has become a highly prestigious institute for research and dissemination of the Law of the Sea, thanks to the leadership of Professor John Norton Moore, the Director of the Center, and the able assistance from Dr. Myron H. Nordquist, the Associate Director of the Center, and Ms. Donna Ganoe, the Executive Administrator of the Center. The Center’s activities are numerous. One major accomplishment of the Center is in ensuring the completion of the six volumes of the Commentary on the 1982 United Nations Convention on the Law of the Sea.

This series is an

extremely valuable contribution to the understanding of the current International Law of the Sea as it provides the contextual background on each of the articles of the 1982 Convention which is essential to the proper interpretation and implementation.

Besides, the proceedings of these

Conferences are published and distributed world-wide each year. They provide a very interesting compendium on developments in the Law of the Sea. The proceedings over the last few days provide an excellent example of the high quality participation and presentations at the Virginia

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Conferences. It demonstrates that the Center plays a very important role in bringing together outstanding participants and presenters. The Center has become the principal source of education and information on the Law of the Sea, especially in Washington, DC, where Professor Moore has tried very hard to explain the importance of the Convention on the Law of the Sea. He has been actively engaged in persuading the Administration and the Senate to consent to the U.S. becoming a party to the Convention. In this regard, from time to time the Center provides information to Senate staff and to others who are looking for information regarding the Convention. Professor Moore himself has testified and made presentations at Congressional hearings concerning the Convention. I believe if the United States becomes a party to the Convention much credit should go to the Center and especially to Professor Moore who has made such a great effort in Washington in trying to bring about the U.S. accession to the Convention. I must not forget to mention Barbara Moore who has been an inspiration to John all these many years. It is always a delight to see her at these meetings. She knows more about marine science than most of us. All in all, the Center performs a very important and useful task that deserves to be recognized on the occasion of the 30th Conference convened by the Center. I would like to invite you to join me in expressing our appreciation to the Center for the Oceans Law and Policy. I was originally to speak on future developments in the Law of the Sea but subsequently I was asked to speak on the International Seabed Authority (“the Authority”), especially in the context of the theme of the Conference which relates to marine scientific research.

For my

presentation I will use PowerPoint to which I will add my comments. Note: please see the accompanying CD for best viewing.

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The World

Slide 1: Map of the world

Slide 1 is a map of the world indicating the difference in size between the ocean and the land mass in terms of their respective coverage of the surface of the globe. For centuries, it was assumed that the sheer vastness of the oceans, and their apparently inexhaustible productivity, exceeded human capacity for use and abuse. It is only in the last century that we have begun to realize that the old assumptions are no longer valid. It is against this background that we must measure and evaluate mankind’s attempts to establish a public order for the oceans through the rule of law. The function of the Law of the Sea has long been recognized as that of protecting and balancing the common interests of all peoples in the use and enjoyment of the oceans. The 1982 United Nations Convention on the Law of the Sea (“the Convention”) is the first comprehensive constitution for the oceans.

Part XI of the Convention and the 1994

Agreement relating to the implementation of the Convention contain the regime for the administration of the resources of the deep seabed beyond national jurisdiction.

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The “Area”

Slide 2: Map of the estimated “Area”

Under the Convention, the international seabed area is referred to as the “Area” and is defined as “the seabed and ocean floor thereof, beyond the limits of national jurisdiction.” 2 The Area and its resources are the common heritage of mankind, and all rights in the resources of the Area are vested in mankind as a whole on whose behalf the Authority acts. 3 Slide 2 is a map showing the international area as we estimate it. What is interesting is that almost 50% of the earth’s surface comes under the jurisdiction of the Authority insofar as seabed resources are concerned.

2

Article 1(1), the United Nations Convention on the Law of the Sea of 10 December 1982 (“the Convention”). 3 Preamble, paragraph 6, the Convention; Preamble, paragraph 2, the Agreement relating to Implementation of Part XI of the United Nations Convention on the Law of Sea 10 December 1982 (“the Agreement”).

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The next three slides (Slides 3-5) describe the functions and the structure of the Authority.

The International Seabed Authority The International Seabed Authority is an autonomous international organization established under the 1982 United Nations Convention on the Law of the Sea. It is the organization through which States organize and control activities in the Area, particularly with a view to administering the resources of the Area. The Area and its resources are the common heritage of mankind, and all rights in the resources of the Area are vested in mankind as a whole on whose behalf the Authority acts.

Slide 3: What is the International Seabed Authority?

The International Seabed Authority is an autonomous international organization through which its members shall, in accordance with the regime for the Area established in Part XI of the Convention and the Agreement, organize and control activities on the deep ocean floor in areas beyond the limits of national jurisdiction, particularly with a view to administrating the resources of that area. The Area and its resources are the common heritage of mankind and all rights in the resources of the Area are vested in mankind as a whole. In accordance with article 156, paragraph 2 of the Convention, all States parties to the Convention are ipso facto members of the Authority. At

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present there are 153 4 members of the Authority including the European Union. Despite the controversies that surrounded Part XI of the Convention, the Authority has established itself as a credible, cost-effective and efficient organization.

Organs of the Authority • Assembly (All 149 149 Parties to the Convention, including European Union, are members). • Council (36 elected members). • Legal and Technical Commission (21 expert members). • Finance Committee (15 expert members). • Secretariat.

Slide 4: Principal organs of the Authority

The Authority has three principal organs: an Assembly, a Council and a Secretariat. The Assembly, currently consists of all the 153 members of the Authority. It is the supreme organ of the Authority with the power to establish, in collaboration with the Council, general policies. The Assembly inter alia has the following powers:

4

x

To elect the members of the Council and other bodies, as well as the Secretary-General, who heads the Secretariat;

x

To set the two-year budget of the Authority as well as the scale of contributions from Member States to the budget, based on the scale of assessments established by the United Nations for its budget;

As of 8 February 2007 there are 153 members of the Authority.

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x

Following recommendation by the Council, to approve rules, regulations and procedures that the Authority may establish from time to time, governing prospecting, exploration and exploitation in the Area;

x

To examine reports from other bodies, notably the annual report by the Secretary-General on the work of the Authority; and

x

Other powers which will come into play once deep-sea mineral exploitation gets under way. These include decisions on the equitable sharing of financial and other economic benefits derived from activities in the Area, and on compensation or other economic adjustments to developing countries whose export earnings from their land-based mineral extraction are impacted adversely by seabed production. 5 The Council is the executive organ of the Authority. The Council

shall have the power to establish, in conformity with the Convention and the general policies established by the Assembly, the specific policies to be pursued by the Authority on any question or matter within the competence of the Authority. In addition, it supervises and coordinates implementation of the deep seabed regime established by the Convention and invites the attention of the Assembly to cases of non-compliance. It approves 15-year plans of work in the form of contracts for exploration or exploitation, in which governmental and private entities spell out the activities they intend to conduct in precisely defined geographical areas assigned to them. It adopts and applies provisionally, pending approval by the Assembly, the rules, regulations and procedures by which the Authority controls prospecting, exploration and exploitation in the Area. In cases where an environmental threat arises from seabed activities, it may issue emergency orders to prevent harm, including orders to suspend or adjust operations. 5

Article 160, the Convention.

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The Council plays a role in various aspects of the regular functioning of the Authority, by proposing candidates for SecretaryGeneral, submitting the Authority’s budget for approval by the Assembly, and making recommendations to the Assembly on any policy matter. The Council will assume additional responsibilities once deep-sea mining commences. These include the issuance of directives to the Enterprise, action (including compensation) to protect land-based mineral producers in developing countries from adverse economic effects of seabed production, and the establishment of mechanisms for a staff of inspectors who would ensure compliance with the Authority’s regulations and contracts. 6 When the Assembly elects its member States to the 36-member Council, it follows one of the most elaborate formulas fixed for the composition of any international body, designed to ensure equitable representation of a variety of economic and regional interest groups. This formula is as follows: x

Group A: Four States that are major consumers or net importers of the categories of minerals found on the seabed, including the largest consumer.

x

Group B: Four States with the largest investments in seabed activities.

x

Group C: Four land-based producers of minerals to be produced from the seabed.

x

Group D: Six developing countries with special interests, including those with large populations, the land-locked or geographically disadvantaged, major importers of the categories

6

For powers and functions of the Council, see the Convention, articles 161(9), 162, 163(2), 163(7), 163(9), 170(2), 172, 174(3); Annex 3, article 5(5), article 13(2); Annex 4, article 2(1), article 5(5), article 6(k), article 6(1), article 6(o), article 9(1), article 11(2)(a), article 12(2), and article 12(3)(b)(ii).

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of minerals found on the seabed, potential producers of such minerals and least developed States. x

Group E: Eighteen members elected to ensure an overall balance among geographical groups representing Africa, Asia, Eastern Europe, Latin America and Caribbean, and the Western European and other States. 7

The significance in terms of composition of the Council lies in its representation of all the interest groups. Then we have a voting mechanism which promotes consensus on all the decisions of substance. A decision on substance has to be adopted by a two third’s majority. A majority in any Group can block a decision even if there is the two thirds majority overall. So there is protection for all interest groups. This mechanism has resulted in the tendency and practice for the Council to work by consensus on all substantive matters. The Authority has two subsidiary bodies: the Legal and Technical Commission (“the LTC”) under the Council, and the Finance Committee (“the FC”) under the Assembly. The LTC has 15 members which may be increased by the Council. Currently it has 25 members. 8 This is a body which advises the Council on technical matters.

The Finance Committee

has 15 members and it advises the Council and the Assembly on all financial matters. The Part XI Agreement provides that until the Authority becomes self sufficient financially, the five largest contributors to the Authority will be represented on this Committee. 9 Throughout the entire structure, there is an attempt to give a sense of security and participation by all interest groups in all the various important bodies of the Authority. 7

The Agreement, Annex, Section 3, paragraph 15. The Convention, article 163 (2) provides that the Council may decide to increase the size of the LTC if necessary, giving due regard to economy and efficiency. 9 The Agreement, Annex, Section 9, paragraph 3. 8

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Lastly, we have a Secretariat which is an organ of the Authority, led by the Secretary-General. The Secretariat performs the day-to-day tasks of the Authority and implements its policies.

Main Functions • Adopt rules, regulations and procedures for conduct of activities in the Area. • Promote and encourage marine scientific research in the Area. • Protect and conserve the natural resources of the Area and prevent damage to the flora and fauna of the marine environment

Slide 5: The main functions of the Authority

The main functions of the Authority include, as summed up in Slide 5, to adopt rules and regulations and oversee conduct of activities in the international seabed area, to promote and encourage marine scientific research in the Area, and to protect and conserve the natural resources of the Area and prevent damage to the flora and fauna of the marine environment. The Authority’s mining regulations contain extensive provisions on the protection of the environment. It requires Contractors to establish baselines and information against which the future impact of mining activities will be measured. An environmental impact statement is required before a license to proceed to exploitation is approved.

The Authority through the LTC,

provides guidelines on the environmental aspects to the Contractor.

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Main Mineral Resources Polymetallic Nodules Polymetallic Sulphides

Ferromanganese Crusts

Methane Hydrates

Slide 6: Marine resources in the Area administrated by the Authority

Slide 6 basically shows you the types of resources that are being administrated by the Authority at this time. On the left hand side of the slide you can see polymetallic nodules or manganese nodules which contain manganese, nickel, copper and cobalt and are widely distributed in several areas of the oceans. The eight licenses the Authority has issued so far are all in respect of these nodules. Some new types of deposits have attracted attention since the Convention was adopted. It was reported that polymetallic sulphides or chimneys or “black smokers” were found sometime around 1979 on the East Pacific Rise off Baha California. Sulphide deposits are new oceanic crusts formed through seafloor spreading as tectonic plates converge or move apart. They contain inter alia lead, zinc, copper, gold and silver. Ferromanganese crusts or cobalt-rich crusts are found in seamounts. They contain cobalt, manganese, platinum, nickel and a number of other rare metals. Methane hydrates deposits are a new and highly promising fuel

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source. They are a mixture of natural gas and water compressed into a solid by the cold and high pressures of the deep ocean floor in undersea basins of continental margins.

Global distribution of marine mineral resources {P. Rona, SCIENCE 299:673 (2003}

Slide 7: Global distribution of marine mineral resources (P. Rona, 2003)

Slide 7 demonstrates where the various minerals that are found or at least are expected to be found based on present knowledge about the oceans.

Polymetallic Nodules Mining Code „ Provides a comprehensive legal framework for prospecting and exploration of resources. „ Applications in the form of Plans of Work for Exploration for Polymetallic Nodules are approved by the Council and contracts issued for activities in the “Area” Area” „ Mining Code consists of 40 regulations and 4 annexes, including a Model Contract. „ The model contract contains standard terms of conditions for all Contractors.

Slide 8: Mining code on polymetallic nodules

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As far as polymetallic nodules are concerned, as indicated on Slide 8, we have already adopted a Mining Code. This code provides a legal framework for prospecting and exploration of resources. The mining contracts issued deal with the exploration phase. We will develop the code for the exploitation phase when exploitation becomes imminent. Applications are made for licenses or contracts for plans of work. They are considered by the LTC which makes the recommendations to the Council for the award of the contract. The applicant provides detailed information concerning the nodule abundance, the metal content and the other information to determine whether there are areas which are mineable. Of the eight contracts issued by the Authority, seven are in the North East Pacific between the Clarion and Clipperton Fracture Zones (CCZ) and one is in the South Central Indian Ocean.

Slide 9: Location of the contract and reserved areas in the CCZ

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Slide 10: Location of the contract and reserved areas in the Indian Ocean

Slides 9 and 10 demonstrate the locations of the contract and reserved areas in the CCZ of Pacific Ocean and the Indian Ocean on the globe. The applicants provide two sites of equal estimated commercial value pursuant to the Convention. One becomes the reserved site for the Authority, known as “reserved areas”, for use by developing countries or by the enterprise; the other is given back to the applicant as part of the contract area.

Contracts are based on the Mining Code adopted by the Authority.

The Mining Code for Polymetallic Nodules consists of 40 regulations. Together with four annexes including a model contract it provides a comprehensive legal framework for prospecting and exploration of resources. Applications in the form of plans of work for exploration for

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polymetallic nodules are approved by the Council and contracts issued for activities in the Area. The model contract contains standard terms of conditions for all Contractors. 10 This is a device to ensure that all contractors are treated alike and that the terms are uniform for all. Annexes are attached to the standard clauses.

The details of the project differ

depending on the stage of development of the project and the individual Programme of Work of the Contractor. Of the eight contracts already issued, seven were registered as pioneer investors during the period before the entry into force of the Convention. They were registered under Resolution II of the Convention.

These entities are from India, France,

Japan, the Russian Federation, China, a consortium from the Eastern European countries, and Korea. 11 In August 2005 a further contract was issued for a site for Germany represented by the German Federal Institute for Geosciences and Natural Resources (“BGR”). This will be the eighth contract issued by the Authority but the first application since the entry into force of the Convention.

10

For full text of the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, see ISBA/6/A/18. Also International Seabed Authority (in collaboration with the Caribbean Law Publishing Company, Kingston), The Law of the Sea: Compendium of Basic Documents, 2001, pp. 226-270. 11 By the final session of the Preparatory Commission, seven pioneer investors had been registered by the General Committee. These were the Government of India on 17 August 1987, the French Research Institute for Ocean Utilization/French Association for the Study of and Research into Nodules (IFREMER/AFERNOD) (France), the Deep Ocean Resources Development Company (Japan) and Yuzhmorgeologiya [Union of Soviet Socialist Republics (now the Russian Federation)] all on 17 December 1987, the China Ocean Mineral Resources Research and Development Association (China) on 5 March 1991, Interoceanmetal Joint Organization [(Bulgaria, Cuba, the Czech and Slovak Federal Republic (now the Czech Republic and Slovakia), Poland and the Union of Soviet Socialist Republics (now the Russian Federation)] on 21 August 1991 and the Government of the Republic of Korea on 2 August 1994.

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The Contractors are required under the Contract to provide the Authority with annual reports on their activities which are reviewed by the LTC. In particular they are required to provide information regarding the environmental monitoring they have undertaken during their activities. Under the Mining Code the Contractors should provide the Authority with detailed information on their program of work for the next five years. At the end of each five years, they should review the program and provide the Authority with an update for the following five years. The contracts issued are for a 15-year period. If for economic or technical reasons it is not possible for a Contractor to complete its exploration phase in the 15 year period, it has a right to apply for a five year extension. The most active Contractors at the moment are China, India, and Korea. They are investing in exploration activities and in designing, developing and testing technology. None of them are ready yet to begin commercial mining. There are two factors that will determine the timing of commercial mining: the price of metal and the development of technology. The two are related in that when the market is favourable, investors will be willing to invest in technology and speed up the process. Around the 1980s and early 1990s, there was a depression in the world’s metal market. This persuaded a lot of investors (or at least the American consortium which was registered with the United States) to basically abandon their sites. They have not been very active since. Others however registered claims with the Authority and waited for better market conditions. Current signs are that commodity prices are rising very rapidly. This is creating a more promising atmosphere for those who want to invest in deep seabed mining. Some studies have indicated that by 2020 there will be a shortage of metal from land-based sources, and the miners will have to begin to look to other sources for these

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resources. The price of metal in recent times has really shot up. Copper is about US$2,000 a ton now which is about three or four times more than what it was three years back. Nickel is around $26,500 per ton, which is a huge increase in metal prices. The same applies for all the other types of minerals that are likely to be produced from the deep seabed. Hopefully all is well for eventual mining on a commercial basis.

Sulphides and Crusts Draft Mining Code • Understanding Resources • Workshops • Seminars • Publications

• Regime for Prospecting and Exploration • Difficult Issues • System for licenses • Size of areas • Environmental issues

Slide 11: Mining Code on polymetallic sulphides and cobalt-rich crusts

Slide 11 shows scientists from different countries participating in one of the Authority’s workshops held in Kingston on polymetallic sulphide and cobalt-rich crusts. These are new types of deposits that have to be understood first before writing a mining code. For this purpose we convene workshops and seminars with the participation of scientists having firsthand research experience, and publish proceedings of the meetings.

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Technical Workshops Topics • Deep-Seabed Polymetallic Nodule Exploration : Development of Environmental Guidelines. • Proposed Technologies of Deep-Seabed Mining of Polymetallic Nodules. • Mineral Resources of the International Seabed Area other than polymetallic nodules, eg: polymetallic sulphides, cobalt-rich crusts, gas hydrates. • Standardization of Environmental Data and Information: Development of Guidelines. • Prospects for International Cooperation in Marine Environmental Research to Enhance Understanding of the Deep-Sea Environment. • Establishment of a Geological Model for the Clarion-Clipperton Zone.

Slide 12: Topics of technical workshops of the Authority

As indicated on Slide 12, the Authority has convened a series of technical workshops. They are all geared toward some aspects of its work. We gather together the best scientists available on the topic. We ask them to develop guidelines to develop proposed regulations. Then we submit them to the LTC which gives a more in-depth consideration before making recommendations to the Council. We have had about eight technical workshops. The first one was on the environmental aspects of the nodule province. We held a workshop on standardization of environmental data and information. This is very important because when we receive data or information from the different contractors, they all use different values. They attached different values to the samples that they obtain. It is very difficult to compare the results of the various scientific research or exploration activities without common values. We are trying to ascertain through these workshops how to standardize the way data is collected and analyzed and submitted. Then we can better understand and compare submissions. We work closely with scientists from

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different institutions who have expertise or have done research in the international seabed area. Geological Model Objectives

• Quantitative Model (improve resource assessment) • Predictive Model (identify high grade areas) • Prospector’s Guide

Slide 13: Geological model for polymetallic nodules in the CCZ

The Authority has been developing a geological model for the polymetallic nodule deposits in Clarion-Clipperton Zone for a better understanding of the distribution of nodules in that area and the environment in which they are found. As listed on Slide 13, the objectives of the model are three fold: to provide a realistic model to improve the resource assessments; to assist in identifying high grade ore areas; and to serve as a prospectors’ guide. Geological Model Sources of data • Contractors

• Consortia

• Scientific Organizations

• Others

Slide 14: Sources of data for the geological model

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As demonstrated on Slide 14, resources data comes from Contractors, scientific institutions and others. Geological Model Number of samples obtained from each oneonedegree square

Slide 15: Number of samples obtained from each one-degree square (Courtesy of Yuzhmorgeologiya 2004)

Geological Model Ocean Mineral Company freefree-fall grab sample density

Slide 16: Ocean Mineral Company free-fall grab sample density

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Slide 17: Kriged Manganese Grade in the CCZ

Slides 15 and 16 show the number of nodule samples contained within each one-degree square in the CCZ, and hopefully that will provide a primary indication of nodule abundance therein. Slide 17 shows the Kriged manganese grade in the CCZ.

Environmental Objectives • Developing an environmental database, publications and scientific expertise • Standardization of data collection and production of standardized sampling strategies • Promote Marine Scientific Research • Coordination of projects; consultations on sampling protocols; schedule of works and arrangements for collaborative cruises to CCZ; collaboration between contractors and scientists (Kaplan Project)

Slide 18: Environmental objectives of the Authority

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Slide 18 indicates the environmental objectives of the Authority. We collect information in order to develop and standardize data. We also publish the proceedings of the various workshops which will be very helpful to understand the deep sea environment in which we are working. We also promote global marine scientific research in general. Here we attempt to coordinate scientific research projects and try to develop through the workshops protocols for the collection and analysis of data. We collaborate with groups of scientists from throughout the world.

Kaplan Project • Objectives • Study the distribution of organisms on the seabed in order to facilitate the establishment of environmental guidelines • Aims: • Determine the number of various faunal groups at a number of stations in the CCZ using modern molecular methods that can facilitate standardization; • Use state-of-the-art molecular and morphological techniques to evaluate levels of species overlap and rates of gene flow for key faunal components. • Participants • British Natural History Museum, the Southampton Oceanography Centre (United Kingdom), JAMSTEC (Japan), IFREMER (France) and the University of Hawaii. • Collaboration with interested Contractors

Slide 19: Kaplan project

The Authority is currently collaborating in a major research project referred to as the Kaplan project because of its main source of funding, the J. M. Kaplan Fund of New York. As shown on Slide 19, the Kaplan project is an international research project carried out in the Clarion-Clipperton Zone nodule province in the Pacific Ocean. The objectives of the Kaplan project are to measure biodiversity, species ranges and gene flow in the

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zone. This information can be used to determine the level of risk introduced to the province’s biodiversity as a result of mining for polymetallic nodules. The outputs will include a database of some of the important species found in the zone and their genetic sequences. This is the first project of its kind to assess the genetic resources in the nodule province. The information on biodiversity derived from this project will be superimposed on the geological model that the Authority is developing for that zone. This is to determine the number of various faunal groups at a number of stations in the Clarion-Clipperton Zone using modern methods that can facilitate standardization. State of the art techniques are used to evaluate the levels of species and the amount of species overlap and the rates of gene flow for key faunal components. Gene flow has to do with the distribution of the various species to see whether there are similar species right across the Area. This is important because if it comes to our knowledge that a particular species is widely distributed, then we can afford to be more flexible if the mining happens to destroy some of them in the particular area in which the mining is taking place. By knowing that the species are elsewhere, there can be recovery in areas where the destruction is taking place. In March 2006, the authority received the third and penultimate annual progress report on the Kaplan project. The report indicates that with regard to levels of biodiversity, species range and gene flow, work was progressing well using both traditional morphological techniques and the newly developed DNAbased techniques for all animal groups being investigated (polychaetes, nematodes and foraminifera). To date, the Kaplan project has generated seven scientific peer-reviewed publications, and it is expected that more will be coming. In this project we have participation from the British National History Museum, the Southampton Oceanography Centre,

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institutions from Japan, France and the University of Hawaii. We have collaboration from the Contractors who provide ship time when they go to their own areas. The Authority has also engaged itself in collaboration with the Census of Marine Life. The Census of Marine Life is a global network of researchers in more than 70 countries investigating the diversity, distribution and abundance of marine flora and fauna. The Census is divided into a series of groups each investigating a different marine region or environment. Of the 17 groups currently supervised by the Census, the following three are directly related to the work of the Authority: the Chemosynthetic Ecosystem Group, the Seamounts Group and the Census of Diversity of Abyssal Marine Life. These groups address the environments where polymetallic sulphides, cobalt-rich ferromanganese crusts and manganese nodules are found. In addition, we have been engaged in other projects such as the development by a group of scientists of a new technique for bar coding the organisms that are found.

Nematodes contribute 90 per cent of the

meiofauna and 50 per cent of the macrofauna of the deep sea, so they should be a high priority for environmental monitoring in terms of both biodiversity and commercial interests. Bar coding the organism is a means to identify the various characteristics of these organisms. With this technology, if similar organisms are found by other people, they can be quickly compared against the bar code and classified so that they will fall into the correct categories for the particular organisms species to which they belong.

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Central Data Repository • Objectives: • Collect and centralize all public and private data and information on marine mineral resources and their associated environment. • Disseminate available data

• Sources of Data : • Contractors, scientific and technical bodies, including Geological Survey of Canada, National Geophysical Data Center (USA), National Oceanic and Atmospheric Administration (USA), Scripps Institution of Oceanography (USA), United States Geological Survey.

Slide 20: Central Data Repository

Slide 20 is about the development of a central data repository on the seabed environment at the Authority. The objective is to collect and centralize all public and private data and information on marine nodule resources and their associated environment. This information and data will be disseminated and made available to the international community at large. We obtain these data and information from various sources including the Geological Survey of Canada, the National Geophysical Data Center in the United States, the U.S. National Ocean and Atmosphere Administration, Scripps Institution of Oceanography and the U.S. Geological Survey. We get data and information from all our Contractors and from other countries such as China and India. We are trying to build up public data on all these matters. It is also our hope to have yearly collection of data on the seabed environment. We will be monitoring the Contractors’ activities especially the environmental aspects of development for prospecting and exploration of polymetallic sulphides and cobalt crust. We want further development of

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the central data repository assessment of reserved areas and the establishment of the geological model for the Clarion-Clipperton Zone. This, of course, includes the on-going program of promotion of marine scientific research in the deep seabed, such as the contributions of the Kaplan project.

Future Activities • Monitoring of contracts for exploration (especially environmental aspects) and reviewing Contractor’ Contractor’s annual reports on activities. • Development of regulations for prospecting and exploration for polymetallic sulphides and cobaltcobaltrich crusts. • Further development of: • Central Data Repository. • Resource assessment of reserved areas and • Establishment of a Geological model of the CCZ. • Promotion of marine scientific research in the deep seabed (including continuation of the Kaplan Project).

Slide 21: Future activities of the Authority

Slide 21 sums up future activities of the Authority in the coming years. The mandate of the Authority is set out in the Convention and the 1994 Agreement. The detailed work programme for the Authority during the three-year period from 2005 to 2007 was approved by the Assembly at the tenth session. It focuses on the implementation of paragraph 5 (c), (d), (f), (g), (h), (i) and (j) of section 1 of the annex to the 1994 Agreement, in particular the following main areas:

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(a)

The supervisory functions of the Authority with respect to existing contracts for exploration for polymetallic nodules;

(b)

The development of an appropriate regulatory framework for the future development of the mineral resources of the Area, particularly hydrothermal polymetallic sulphides and cobalt-rich crusts, including standards for the protection and preservation of the marine environment during their development;

(c)

Ongoing assessment of available data relating to prospecting and exploration for polymetallic nodules in the Clarion-Clipperton zone;

(d)

The promotion and encouragement of marine scientific research in the Area through, inter alia, an ongoing programme of technical workshops, the dissemination of the results of such research and collaborations with Kaplan, the Chemosynthetic Ecosystem Group and the Seamounts Group; and

(e)

Information-gathering and the establishment and development of unique databases of scientific and technical information with a view to obtaining a better understanding of the deep ocean environment.

It is expected that these will continue to be priority areas for the Authority in the near future. With respect to paragraphs (c), (d) and (e) above, multi-year work programmes have been established and are being implemented. A comprehensive review and evaluation of these projects will be prepared for consideration by the thirteenth session of the Authority, in 2007, at which time a work programme for the period 2008-2010 will be proposed. In 2007 it is proposed to convene a workshop on the standardization of environmental data and information required to be submitted by contractors under the regulations for prospecting and exploration for

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polymetallic sulphides and cobalt-rich crusts in the Area. Following the usual practice, the workshop will be preceded by a meeting of scientists to assist in formulating an agenda for the workshop.

Thank you.

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PANEL I: SETTING THE SCENE

Setting the Scene: Introductory Remarks John Norton Moore * Greetings Attorney General Brady; Secretary-General Nandan; Judge Nelson; Director Golitsyn; Chairman Croker; Commissioner Borg; Chief Executive Heffernan; and distinguished Ambassadors and guests. Welcome to the thirtieth annual Law of the Sea Conference of the Virginia Center for Oceans Law and Policy. We are honored to co-sponsor the Conference this year with the Marine Institute, Ireland, the Marine Law and Ocean Policy Centre at the National University of Ireland, Galway, and the Law of the Sea Institute of Iceland. And we are especially honored to join in celebrating the 10th anniversary of Ireland’s ratification of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) here in historic Dublin Castle in this magnificently beautiful country. The subject of our Conference, “Law, Science & Ocean Management,” is both timely and of enduring importance. Science, with its unfolding of the natural wonders of our planet earth through rigorous application of inductive method, has been understood since the enlightenment as both an essential tool for instrumental realization of goals and as an end in itself in mankind’s quest for knowledge. Oceans science, today called oceanography, began as an infant science in the 19th century with activities such as the voyage of HMS Challenger, but it has truly developed as a rigorous science only within the last half of the 20th century. And its achievements, now coming at an increasingly fast pace, in part through powerful new tools such as satellites, computers, and multi-beam mapping, are of momentous importance for mankind’s understanding of our world. They include confirmation of *

Director, Center for Oceans Law and Policy (Charlottesville, VA), and Walter L. Brown Professor of Law, University of Virginia.

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seafloor spreading and plate techtonics; discovery of the linked mid-ocean ridge system; discovery of new resources such as polymetallic sulphide deposits and methane hydrates; a new understanding of living organisms with discovery of extremeophile life forms dependent on chemosynthesis rather than photosynthesis; discovery of archae in the crustal rocks beneath the seafloor as a third branch of life; charting of major seamounts from satellite imagery profoundly altering our understanding of their numbers; increasing understanding of oceans processes on a meso-scale, and greater understanding of physical, chemical, and biological interlinkages in the oceans. Scientific challenges of great contemporary significance as we grapple with oceans issues include understanding the linkages to provide genuine

ecosystem

management

and

sustainable

development,

understanding climate and climate change, understanding discrete environmental problems such as the threat to coral reefs and declining fish stocks, and enhanced understanding for more effective utilization of ocean resources such as methane hydrates or new genetic resources. And, as we contemplate that as much as 95% of the seafloor—much less the huge mass of the water column—remains unvisited, uncharted except at low resolution, and in large part unknown, we have understood that our hypothesis-driven ocean science must be supplemented by a more vigorous effort at ocean exploration. The great importance of oceans science for all mankind in turn suggests that our legal regimes must assist rather than hinder the ocean science quest. Theoretical understanding of oceans policy reminds us that basic oceanography, like navigation, is a use of the seas which should remain open to all. The 1982 United Nations Convention on the Law of the Sea, now in force for 150 countries plus the European Union, while not fully achieving this theoretical goal for oceans science, does provide what

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Setting the Scene

should be workable mechanisms encouraging the scientific quest and, at least with respect to the continental shelf, likely provides a better system than its predecessor Convention, the 1958 Convention on the Continental Shelf. Challenges for oceans law, to enable rather than hinder the scientific quest, include the following: first, cooperative implementation of the obligations to promote international cooperation and creation of favorable conditions for science, as is mandated by UNCLOS Articles 242 and 243; second, assistance particularly to developing coastal States in oceanography training and establishment of marine science centers of excellence, with emphasis on understanding environmental and resource implications, as is mandated by UNCLOS Articles 202, 203 & 266-77; and third, new international cooperative approaches for oceans exploration, perhaps

in

part

through

the

auspices

of

the

Intergovernmental

Oceanographic Commission. Most importantly, as perhaps our greatest continuing problem in implementing a receptive oceans legal regime for science, we must more effectively deal with the reality of coastal State concerns for jurisdiction and protection of resource interests, and work through problems associated with those concerns, in order to dramatically enhance cooperation in ocean science, whether conducted by states or through international organizations. The unremitting financial expense of oceans science, the pervasive shortage of capable scientists, and the economic reality that basic science, as a generator of positive externalities, will inevitably be under-funded by markets, are obstacles enough to our quest for greater knowledge about the oceans. A fundamental challenge remains as to how we move beyond politics and zones of national jurisdiction to enhance human knowledge benefiting all mankind.

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In a series of timely panels, with participation by the world’s top experts, this Conference will review initially the overall scene (Panel I); examine the challenges to truly achieving an ecosystem approach to fisheries management (Panel II); examine the newer concept some are conceptualizing as non-hypothesis driven science, or ocean exploration (Panel III); address the too neglected issue of marine science capacity building to implement obligations to assist developing countries (Panel IV); address selected oceans policy problems with significant scientific dimensions, such as continental shelf petroleum development and the dispute over whaling (Panel V); address some of the legal issues in UNCLOS itself (Panel VI); and address the newer issues of marine biological diversity and marine genetic resources (Panel VII). Along the way we will also be privileged to hear keynote remarks by Dr. Joe Borg, the European Commissioner for Fisheries and Maritime Affairs, Dr. Patricio Bernal, an Assistant Director-General of UNESCO and Executive Secretary of the Intergovernmental Oceanographic Commission, and His Excellency Satya N. Nandan, the Secretary-General of the International Seabed Authority.

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The European Community and Environmental Protection Rory Brady 1

Guide to Contents Introduction Interpretation of Community Directives Enforcement of Community Directives Adequacy of Penalties Burden of Proof Penalty Payments under Article 228 of the EC Treaty. Community Competence International Agreements Member State Action in the Field of Environmental Protection Environmental protection and free movement of goods Member State justifications on environmental grounds under Article 30 of the EC Treaty. Mandatory Requirements: environmental protection Public procurement Member State competence after adoption of harmonising legislation Compatibility of Community legislation with the objective of environmental protection Conclusion

1

Attorney General of the Republic of Ireland

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INTRODUCTION

1. Given the importance environmental law has come to assume in the jurisprudence of the Court of Justice, it is remarkable to recall that protection of the environment was not listed amongst the aims of the Treaty of Rome. Subsequent Treaty amendments have ensured that there is a specific section on the environment (Article 174 – 176) and that Article 2 of the EC Treaty (incorporated into the TEU) states as one of the objectives of Community activity the protection of the environment. Despite this unpromising start, the development and expansion of environmental protection has been phenomenal. Much of this is attributable to the ambitious legislative programme engaged in by the Commission. However the role of the Court of Justice in this field cannot be underestimated. It has adopted an interventionist stance, in both substantive and procedural areas to advance environmental protection. To analyse its contribution, it is helpful to look at various areas in which the Court has made its mark.

2. First, there is the area of the interpretation and enforcement of existing Community legislation in the field of the environment. The Court has consistently taken a robust approach to the enforcement of environmental law, laying down important principles in areas such the implementation of environmental directives by the Member States and the use of daily fines for Member States who consistently fail to comply with their obligations. Insofar as the interpretation of Community directives is concerned, it is fair to say

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that the Court has, by and large, tended to interpret environmental law so as to advance the aim of protecting the environment.

3. Second, insofar as the technical but important area of Community competence is concerned, the Court has recently delivered a landmark judgment whereby it held that, specifically in the field of the environment, Community legislation may provide for its enforcement by criminal sanctions (Case C-176/03 Commission v. Council 2 ).

4. Third, in the field of international law, the Court has made a number of ground breaking decisions which confirm the centrality of international environmental law obligations assumed by the Community.

They are part of the Community legal order. In

particular, the Court has held that an international treaty to which the Community has acceded constitutes Community law that may be relied upon by individuals in the national courts (Case C-213/03 Syndicat Professionel Coordination des Pecheurs v. EDF 3 ) (regarding the Convention for Protection of Mediterranean Sea). Moreover, Member States who have separately acceded to such treaties may not litigate matters of dispute against another Member State other than before the Court of Justice as a Community law dispute (Case C-459/03 Commission v. Ireland 4 ).

5. Fourth, the Court has permitted Member States to rely on the principle of environmental protection as a justification for departure 2

Not yet reported, decision of 13 September 2005. [2004] ECR I-7357. 4 Not yet reported, decision of 30 May 2006. 3

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from other fundamental Community law principles, such as free movement of goods. In addition, the Court has recognised that the principle of integration enshrined in Article 6 of the EC Treaty may provide Member States with a further basis for justifying reliance on environmental considerations in areas such as public procurement.

INTERPRETATION OF COMMUNITY DIRECTIVES

6. Insofar as interpretation of Directives is concerned, the Court has been faced with many situations concerning the accuracy, completeness or effectiveness of national implementing provisions. In this context the principles of uniform interpretation and effect utile are applicable. In Case C-102/97 Commission v. Germany 5 , the interpretation of Article 3 of Directive 79/439 on the disposal of waste oils was at issue. The Directive provided that priority was to be given to regeneration in the processing of waste oils. Germany said it was not necessary to give it a higher priority than that provided under existing statutory provisions having regard to the constraints facing the Member State. The Court ruled that the definition of such constraints could not be left to the exclusive discretion of the Member States as this would be contrary to the principle of uniform interpretation of Community law. Moreover to allow Member States total discretion would be to render the obligation worthless.

5

[1999] ECR I-5051.

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7. In various cases, the Court has ruled upon the method of transposition and has, for instance, held that administrative circulars are not sufficient. This ruling is not peculiar to environmental law but applies in many areas of Community law. However having regard to the new Directive on Public Participation (2003/35) which accords to the public, including non governmental organizations, significant rights to participate in decisions about environmental matters, (particularly in relation to EIA and integrated pollution control) that limitation seems particularly appropriate.

8. In a similar vein, the Court has been strict about the way in which Member States transpose environmental directives. It insists on a faithful implementation of the directive. This surfaced in particular in the litigation involving the Wild Birds Directive (see in this regard inter alia Case 262/85 Commission v. Italy 6 ). In Case C96/98 Commission v. France 7 , in the context of the same Directive, the Court rejected the use of voluntary contracts concluded between the State and farmers as a method of implementation.

ENFORCEMENT OF COMMUNITY DIRECTIVES

9. The Court has signalled unambiguously its intention to ensure compliance with environmental law. It has done so in a number of ways.

6 7

[1987] ECR 3073. [1999] ECR I-8531.

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Adequacy of Penalties

10. First, it has ruled upon the adequacy of penalties imposed by Member States for breach of environmental directives. In Case 354/99 Commission v. Ireland 8 , the Commission alleged that Ireland had failed to comply with its obligations under Council Directive 86/609/EEC of 24 November 1986 on the protection of animals used for experimental and other scientific purposes. One of the Commission’s complaints was the absence of an adequate system of penalties for non-compliance with the Directive. The Commission had pleaded that even where a directive does not provide for any specific penalty or fine for non-compliance with the specific obligations it imposes, the Member States nevertheless have a general duty under Article 5 of the Treaty to take all measures necessary to guarantee the application and effectiveness of Community law. The Court agreed with this submission, holding at paragraph 46 that:

i. … where a Community regulation does not specifically provide for any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a 8

[2001] ECR I-7657.

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similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive (Case 68/88 Commission v Greece [1989] ECR 2965, paragraphs 23 and 24; Case C213/99 de Andrade [2000] ECR I-11083, paragraph 19). It must be held that the penalties provided for in the Irish legislation for non-compliance with the requirements of the Directive do not satisfy the conditions set out in the case-law referred to in the previous paragraph.

Burden of Proof

11. A new and important area which the Court is addressing is the process of adjudication on disputes in relation to the application of Community environmental law. Issues such as burden of proof and the required standard of proof require adjudication. Where an allegation of failure to apply environmental standards is made, there is generally physical proof of the presence or absence of environmental harm. In Case C-494/01 Commission v. Ireland 9 , the Court made some important pronouncements on the burden of proof. The Commission had brought infringement proceedings alleging failure to implement properly the Waste Directive. The gravamen of the case was that Ireland had failed to comply with its obligations to achieve a certain result because it was not ensuring that the Directive was actually applied. It made reference to 12 complaints that had been received.

But it also referred to the

general and persistent nature of the deficiencies that characterize the actual application of the Directive in Ireland of which those 12 9

[2005] ECR I-3331.

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complaints simply constituted examples. In respect of the burden of proof the Court held: i. It is to be remembered that in proceedings under Article 226 EC for failure to fulfil obligations it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (see, in particular, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6, and Case C-408/97 Commission v Netherlands [2000] ECR I-6417, paragraph 15). ii. However, the Member States are required, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist in particular, pursuant to Article 211 EC, in ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied (Case 96/81 Commission v Netherlands, paragraph 7, and Case C-408/97 Commission v Netherlands, paragraph 16). iii. In this context, account should be taken of the fact that, where it is a question of checking that the national provisions intended to ensure effective implementation of the directive are applied correctly in practice, the Commission which, as the Advocate General has observed in point 53 of his Opinion, does not have investigative powers of its own in the matter, is largely reliant on the information provided by any complainants and by the Member State concerned (see, by analogy, Case C-408/97 Commission v Netherlands, paragraph 17). iv. It follows in particular that, where the Commission has adduced sufficient evidence of certain matters

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in the territory of the defendant Member State, it is incumbent on the latter to challenge in substance and in detail the information produced and the consequences flowing therefrom (see to this effect Case C-365/97 Commission v Italy [1999] ECR I-7773 (‘SanRocco’), paragraphs 84 and 86). v. In such circumstances, it is indeed primarily for the national authorities to conduct the necessary onthe-spot investigations, in a spirit of genuine cooperation and mindful of each Member State’s duty, recalled in paragraph 42 of the present judgment, to facilitate the general task of the Commission (SanRocco, paragraph 85). 12. From an Irish point of view, this partial reversal of the burden of proof is somewhat remarkable. The Court might have taken the view that if the Commission intends to initiate infringement proceedings in respect of the application of the relevant legislation, it is for the Commission to ensure that it obtains the necessary investigative powers and resources and to put before the Court the requisite evidence to support its allegations. However the Court accepted the Commission’s plea in respect of its inadequacy of resources and imposed on Member States the obligation to themselves conduct on the spot investigations in a spirit of genuine cooperation. 13. In a subsequent case the Court explained the nature of the obligation incumbent upon the Commission in greater detail. In Case C-508/03 Commission v. UK 10 , the Commission took infringement proceedings against the United Kingdom in respect of the an alleged failure to apply the EIA directive to the proposed

10

Not yet reported, decision of 4 May 2006.

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urban development projects at White City and at Crystal Palace. It was decided by the relevant local authority that the development at White City did not require an EIA. Outline planning permission was granted and certain matters were reserved for subsequent approval by that authority. Applications were made for approval of the reserved matters and that application was granted. Similar facts occurred in respect of the Crystal Palace development. 14. The Court referred to its decision in Commission v. Ireland and noted, making reference specifically to the EIA directive, that it had held in Case C-117/02 Commission v Portugal 11 that the Commission must furnish at least some evidence of the effects that the project in question is likely to have on the environment 12 . 15. In an important passage, it stated: i. However, as has already been noted in paragraphs 77 to 80 above, proof that Article 2(1) of Directive 85/337 has been infringed requires the Commission to demonstrate that a Member State has failed to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location are made subject to an assessment with regard to their effects. That proof may effectively be furnished by demonstrating that a Member State did not take the measures necessary to ascertain whether a project which does not reach the thresholds envisaged in Article 4(2) of Directive 85/337 is nevertheless likely to have significant effects on the environment by virtue inter alia of its nature, size or location. The Commission might also establish that a project 11 12

[2004] ECR I-5517. At paragraph 85.

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likely to have significant effects on the environment was not the subject of an impact assessment although it should have been (Commission v Portugal, paragraph 82). ii. In that last respect, it is also clear from paragraphs 85 and 87 of Commission v Portugal that, in order to demonstrate that the national authorities exceeded the limits of their discretion by failing to require that an impact assessment be carried out before giving consent for a specific project, the Commission cannot limit itself to general assertions by, for example, merely pointing out that the information provided shows that the project in question is located in a highly sensitive area, without presenting specific evidence to demonstrate that the national authorities concerned made a manifest error of assessment when they gave consent to a project. The Commission must furnish at least some evidence of the effects that the project is likely to have on the environment. iii. In the present case, it is clear that the Commission did not satisfy the burden of proof placed upon it. It cannot merely rely on presumptions that largescale projects are automatically likely to have significant effects on the environment without establishing, on the basis of at least some specific evidence, that the competent authorities made a manifest error of assessment. iv. Despite the analytical material and documents supplied by the United Kingdom Government, the Commission did not seek to back up its own assertions and refute those of the defendant Member State through detailed examination of that material or by obtaining, producing, examining or providing an analytical presentation of tangible and specific evidence which might have enabled the Court to assess whether the competent authorities did in fact exceed the limits of their discretion.

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16. In those circumstances that part of the complaint was dismissed as unfounded.

Penalty Payments under Article 228 of the EC Treaty

17. Lastly, the Court has dealt with the situation where a Member State fails to comply with a judgment of the Court. The EC Treaty provided for the possibility of making a penalty payment or lump sum where this arose but until recently this provision had not been actually invoked. In a number of relatively recent cases, the Court has ordered penalty payments (see for example Case C-387/97 Commission v. Greece 13 and C-304/02 Commission v France 14 ). In Case C-278/01 Commission v. Spain 15 , the Court imposed a penalty payment on Spain for failure to comply with a judgment of the Court in relation to compliance with the bathing waters directive, ordering Spain to pay €624,150 per year and per 1% of bathing areas in Spanish inshore waters which were found not to conform to the limit values laid down under the Directive for the year in question.

COMMUNITY COMPETENCE

18. Both in respect of the Community’s internal and external competences, the choice of the legal basis for environmental legislation remains contentious and the role of the Court in adjudicating on these disputes has been important. As noted in the 13

[2000] ECR I-5047. [2005] 3 CMLR 275. 15 [2003] ECR I-14141. 14

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Introduction, the Treaty of Rome did not contain any explicit legal basis for environmental legislation. The Commission chose to use, inter alia, an internal market article (Article 100 now Article 94) and Article 235 (now Article 308) as the basis for environmental directives. Thus a directive was adopted on the approximation of the laws of the Member States relating to detergents as well as a directive on the sulphur content of certain liquid fuels. And infringement proceedings were started against Italy (Joined Cases 91 and 92/79 Commission v. Italy 16 . The Court recognized the valid adoption of the directives on the basis of Article 100 where environmental measures were adopted to harmonize national provisions. Thus the legitimacy of environmental measures was recognized to the extent that harmonization of national measures was necessary to eliminate trade barriers. The Court later authorized the use of Article 235 as a legal basis for environmental directives, indicating that environmental measures may be required to eliminate disparities between Member States and to achieve the aims of the Community in the sphere of protection of the environment. This authorization on the part of the Court permitted the Commission to continue its ambitious legislative programme without an explicit legal basis.

19. Even after a specific legal basis was introduced, there continued to be disputes as to whether Article 95 (which is concerned with the approximation

of

provisions

having

as

their

object

the

establishment and functioning of the internal market) constituted an appropriate legal basis for legislation. Where legislation is adopted 16

[1980] ECR 1099.

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under Article 95, Member States have much less room to manoeuvre in respect of deviating from the Community standard in order to impose more stringent national standards. The Court has laid down a test to resolve this difficulty known as the centre of gravity doctrine. The legal basis of an act is determined objectively by its primary aim irrespective of any ancillary aims it may simultaneously pursue (see Case C-155/91 Commission v. Council 17 and Joined Cases C-164 and 165/97 European Parliament v. Council 18 ).

20. The appropriate legal basis is also a live issue in relation to the accession to international agreements by the Community and the legislation adopted to enable the Community to do so. This is important not only because of the different voting mechanisms (Article 175(1) provides for co-decision and qualified majority voting whereas Article 175(2) provides for the consultation procedure and unanimity) but also because the legal basis can be a factor in determining the extent of exclusive versus shared competence. This is so in the area as between the Community and Member States who have also individually acceded to the relevant international instrument.

21. The question of legal basis has taken on a much increased importance with the decision in Case C-176/03 Commission v. Council 19 . Prior to this decision, neither criminal law nor the rules of criminal procedure fell within the Community’s competence at 17

[1993] ECR I-939. [1999] ECR I-1139. 19 [2005] All ER (D) 62. 18

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all. Indeed, it was to cater for this gap that the Member States decided to address the need for greater cooperation in the criminal law field by Member States through the Treaty of Amsterdam, the Tampere Union Council and other European Councils, the Nice Treaty and the Convention of the Future of Europe. Action taken by the Member States has produced an enhanced role for the European institutions in this sphere.

22. Thus the TEU permits inter alia the adoption of framework decisions, which may impose on the Member States an obligation to provide for criminal penalties. This may only be done where the objectives sought to be obtained in a framework decision cannot be achieved adequately by the Member States and may be better achieved at Union level. The principle of subsidiarity must be observed when adopting such measures and framework decisions must not go beyond what is necessary in order to achieve those objectives.

23. The Council adopted Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law requiring the Member States to provide for criminal penalties. The Commission challenged this decision on the basis that the wrong legal basis had been adopted, arguing that Article 175 of the EC Treaty ought to have been used.

24. The Court agreed with the Commission, holding that in certain limited circumstances the Community could act in criminal law matters. The Court emphasised at paragraphs 41 to 47 of its

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judgment the special importance of the aim of the protection of the environment. The Court noted that it constituted “one of the essential objectives of the Community” and made reference to Article 2 and Article 3(1)(L) of the EC Treaty 20 . The Court also referred to Articles 6 and Articles 174 to 176 of the EC Treaty. In respect of the content of the Framework Decision under challenge in those proceedings, the Court referred to the particularly serious environmental offences referred to at Article 2 of that Decision. Moreover, the operative paragraph of the judgment, paragraph 48, held for the first time that the Community legislature could take measures relating to the criminal law of the Member States, and specifically referred twice to the environment—once in respect of serious environmental offences and once in respect of the effectiveness

of

rules

on

environmental

protection.

25. The test laid down by the Court to determine when the Community enjoys competence (in the environmental field) to impose criminal measures was as follows: when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities are an essential measure for combating serious environmental offences, the Community legislature may take measures relating to the criminal law of the Member States which it considers necessary to ensure that the rules which it lays down on environmental protection are fully effective (paragraph 48). Paragraph 48 says that the penalties must be effective, proportionate and dissuasive. Accordingly, because penalties could have been 20

In contrast, while transport is a TEC “activity” expressly recognised as such by Article 2, as an “activity” it is intended to be of assistance in the achievement of Treaty objective. It is not a TEC objective of itself.

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provided under Article 175, the Council was wrong to adopt a TEU provision as the legal basis rather than Article 175.

26. This judgment is startling in its departure from the long established view that criminal law and procedures are not covered by Community law. It is notable that it took this step in an environmental case, emphasizing in the course of its judgment the special importance of the protection of the environment and classifying it as one of the essential aims of the Community. It is hard not to believe that the Court was influenced by the subject matter of its decision when holding that the Community can impose criminal measures. It remains to be seen whether the Court will extend its ruling into other areas of Community law or whether it will chose to limit its finding that the criminal sanctions may be imposed by Community law only in the environmental field.

INTERNATIONAL AGREEMENTS

27. The Community has the power under Article 300 of the EC Treaty to conclude agreements with States or international organizations where the EC Treaty provides for the conclusion of same. In the field of the environment, specific authorization for the conclusion of such agreements is contained in Article 174.

28. A recent judgment of the Court demonstrated the extent to which the Court has given full effect to these agreements in the Community legal order. In Case C-213/03 Syndicat Professionnel

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Coordination des Pêcheurs v. EDF 21 the Court were faced with a reference from a French court on the interpretation of Article 6(3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources, of 28 February 1983 22 (hereinafter ‘the Protocol’), and of Article 6(1) of the Protocol as amended at the Conference of Plenipotentiaries held in Syracuse on 7 and 8 March 1996 (hereinafter ‘the amended Protocol’). Those questions were raised in proceedings between the Syndicat professionnel coordination des pêcheurs de l’étang de Berre et de la région (hereinafter ‘the Syndicat’) and Électricité de France (hereinafter ‘EDF’) as regards the discharges from the hydroelectric power station at Saint-Chamas (France) into the Étang de Berre. It provides, inter alia, under Article 6(1) of the amended Protocol: Point source discharges into the Protocol area, and releases into water or air that reach and may affect the Mediterranean area, as defined in Article 3(a), (c) and (d) of this Protocol, shall be strictly subject to authorisation or regulation by the competent authorities of the Parties, taking due account of the provisions of this Protocol and Annex II thereto, as well as the relevant decisions or recommendations of the meetings of the Contracting Parties. 29. The Étang de Berre, located in France, is a saltwater marsh of 15,000

hectares

which

communicates

directly

with

the

Mediterranean Sea. The Syndicat complained to EDF on several occasions of damage to the aquatic environment of the Étang de Berre, primarily as the result of fresh water from the Durance which

21 22

[2004] ECR I-7357. OJ 1983 L 67, p. 1.

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is artificially discharged into the Étang whenever the turbines of the hydroelectric power station at Saint-Chamas are in operation.

30. The national court asked whether Article 6(1) in the amended protocol should be held to have direct effect. This would mean that any interested party may rely on it before the national courts in an action to halt discharges of water which are not authorised in accordance with the procedure and criteria which it prescribes. The Court held that according to the settled case-law of the Court, a provision in an agreement concluded by the Community with a non-member country must be regarded as being directly applicable when (regard being had to its wording and to the purpose and nature of the agreement) the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (see inter alia Demirel, cited above, paragraph 14, and Case C-171/01 Wählergruppe Gemeinsam 23 ).

31. The Court concluded that the relevant provisions of the Protocol had direct effect. It went on to interpret those provisions as prohibiting, without an authorisation issued by the national competent authorities, the discharge into a saltwater marsh communicating with the Mediterranean Sea of substances which, although not toxic, have an adverse effect on the oxygen content of the marine environment.

23

[2003] ECR I-4301, paragraph 54.

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32. This decision is very significant. The Court has held that international agreements signed up to by the Community can now be relied upon by individuals in national courts as against a Member State under the doctrine of direct effect without those international agreements having to become part of Community law by incorporation into a directive or regulation 24 . This means that the corpus of Community environmental law is hugely extended since it now incorporates a whole body of international law that can be relied upon directly by individuals provided it meets the conditions of direct effect. The extent of the departure from previous practice is evidenced by the comment by Kramer in 2003 25 where he states “where there is only a Council decision to adhere to a convention but no transposing secondary legislation, the Commission omits to enforce the content of the convention against Member States”. Following this judgment, not only will the Commission presumably be significantly more vigilant in its enforcement action for failure to comply with international conventions adhered to by the Community but individuals can rely upon that convention in the national courts.

33. The activism of the Court in this area is confirmed by its judgment in Case 459/03 Commission v. Ireland 26 . The Court concluded that the provisions of UNCLOS relied on by Ireland were rules which formed part of the Community legal order and that the Court of Justice therefore not only had jurisdiction to deal with those 24

Such as was done, for example, in relation to the Aarhus Convention, which the Community acceded to but also implemented into Community law directly by way of Directive 2003/35/EC on public participation. 25 EC Environmental Law, 5th ed., p.6. 26 Not yet reported, decision of 30 May 2006.

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disputes but had exclusive jurisdiction so that the Community system for the resolution of disputes took precedence over that contained in Part XV of the Convention.

MEMBER STATE ACTION IN THE FIELD OF ENVIRONMENTAL PROTECTION

Environmental protection and free movement of goods

34. If the Community has not adopted measures in a specific area to protect, preserve or improve the quality of the environment, the Member States retain the power to act by means of national law. Thus, in situations where the Community has not occupied the field, the Member States remain free to adopt their own environmental legislation. However, when adopting measures in the field of environmental protection, Member States are bound to comply with the provisions of Community law and, in particular, with the Treaty provisions on the free movement of goods.

35. The free movement of goods is one of the fundamental principles of Community law 27 . Article 28 of the EC Treaty provides that all “quantitative restrictions on imports and measures having equivalent effect” shall be prohibited between Member States. Article 29 of the EC Treaty imposes a corresponding prohibition in respect of exports.

Through its broad interpretation of those

27

Article 14(2) EC states: “The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty”.

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provisions, most notably in cases such as Dassonville 28 and Cassis de Dijon 29 , the Court of Justice has played a crucial role in promoting market integration.

36. Notwithstanding the importance ascribed by the EC Treaty to market liberalisation, the European Court of Justice has shown a readiness in certain circumstances to allow environmental considerations to operate as a fetter on the unrestricted free movement of goods, both under the rubric of Article 30 of the EC Treaty and by means of the “mandatory requirements” first recognised in Cassis de Dijon.

37. Article 28 of the EC Treaty prohibits quantitative restrictions (i.e. national limitations on the amount of a product which may be imported) and all “measures having equivalent effect” (MEQR). In its case law, the Court of Justice has given an extremely broad interpretation of the notion of an MEQR.

In Dassonville, it

declared that all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions 30 . 38. In subsequent case law, it became apparent that the prohibition in Article 28 of the EC Treaty applied not only to discriminatory national rules (“distinctly applicable measures”), but also to rules 28

Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837. Case 120/78 Rewe-Zentrale v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649. 30 Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837, para. 5. 29

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which did not discriminate as such between goods on the basis of country of origin (“indistinctly applicable measures”).

The

judgment in Cassis de Dijon established the principle of mutual recognition: Member States must respect the trade rules of other States and must not seek to impose their own rules on goods which have been lawfully produced and marketed in another State of the Community.

Once goods have been lawfully produced and

marketed in one Member State, they should be admitted into any other State without restriction, unless the State can successfully invoke one of the exceptions set out by the Court and known as “mandatory requirements”.

39. The potential for conflict between the objectives of trade liberalisation and environmental protection is obvious 31 . However, through its case law, the Court of Justice has succeeded to a large extent in striking a satisfactory balance between the promotion of unrestricted trade between Member States and the protection of the environment. The willingness of the Court of Justice to entertain Member State’s environmental concerns, both under Article 30 of the EC Treaty and in the context of the “mandatory requirements”, is further evidence of the fundamental importance which the Court of Justice accords to environmental issues.

Member State justifications on environmental grounds under Article 30 of the EC Treaty

31

For a discussion on this perceived “clash of cultures” see Davies, European Union Environmental Law, Ashgate, 2004, p. 186.

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40. Article 30 of the EC Treaty can be relied on by Member States to justify restrictions on the free movement of goods on certain limited grounds, including “the protection of health and life of humans, animals or plants”. While environmental protection is not explicitly enumerated as a ground for justification under Article 30 of the EC Treaty, a national measure which has a positive effect on the environment may fall within the ambit of that provision on the basis that it seeks to protect the “health and life of humans, animals or plants”.

41. Since Article 30 of the EC Treaty constitutes a derogation from one of the fundamental principles on which the Community is based, the grounds of justification provided for therein have traditionally been construed very restrictively. There are nonetheless several instances of cases in which Member States have succeeded in justifying restrictions on the free movement of goods on grounds relating – albeit indirectly – to environmental protection. 42. In Nijman 32 , a ban imposed by the Netherlands on a certain type of pesticide was held by the Court of Justice to be justified under Article 30 of the EC Treaty as the pesticide in question had a particularly harmful effect on humans and animals 33 . Toolex

34

In the

case, a Swedish ban on the use of trichloroethylene for

industrial purposes was deemed justified on grounds of the protection of health of humans. 32

Case 125/88 Criminal Proceedings against Nijman [1989] ECR 3533. See also Case C-400/96 Criminal Proceedings against Jean Harpegnies [1998] ECR I-5121 in which a Belgian ban on a biocidal product being placed on the market was held to be capable of justification to protect human health and life. 34 Case C-473/98 Kemikalieinspektionen v. Toolex Alpha [2000] ECR I-5681. 33

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43. In the Danish Bees 35 case, a Danish measure prohibiting the introduction and keeping of bees other than native brown bees on the Danish island of Laesø was deemed to be justified on the basis that it aimed to protect the health and life of the indigenous brown bee population. The judgment of the Court of Justice is regarded as having provided a particularly broad definition of the concept of protection of “health and life of humans, animals and plants”. After Danish Bees, it might be argued that a national protection measure which simply intends to conserve biodiversity might be justified under Community law even though it seeks to offer protection where there is not necessarily an immediate direct danger to the health and life of animals 36 .

Mandatory requirements: environmental protection

44. In accordance with the ruling of the Court of Justice in Cassis de Dijon, goods lawfully produced and marketed in one Member State must be admitted into any other State without restriction, unless the importing State can successfully invoke one of the exceptions set out by the Court and known as “mandatory requirements”. As a general rule, this rule of reason developed in Cassis only applies where the measure in question is indistinctly applicable (i.e. applies to all goods without distinction as to the country of origin of those goods).

35 36

Case C-67/97 Criminal Proceedings against Ditlev Bluhme [1998] ECR I-8033. See Davies, European Union Environmental Law, Ashgate, 2004, p. 195.

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45. Under the guise of the “mandatory requirements”, the Court of Justice has allowed Member States to rely on justifications beyond those enumerated in Article 30 of the EC Treaty. This has been of particular importance as far as environmental protection is concerned.

While Article 30 of the EC Treaty allows for

derogations on grounds of protection of “health and life of humans, animals and plants”, there are obviously large numbers of environmentally-inspired national measures which could never qualify for exemption under that category. For example, national rules on eco-labelling or recyclability would not be capable of justification under Article 30 of the EC Treaty. 46. In the Danish Bottles 37 case, the Court of Justice expressly confirmed for the first time that the mandatory requirements referred to in Cassis de Dijon included matters relating to environmental protection. The Court acknowledged that a national measure introduced to enhance environmental protection was capable of legitimately restricting the free movement of goods in the absence of common Community rules.

47. The national law at issue in Danish Bottles involved a requirement that beer and soft drinks be marketed only in reusable containers. Such containers had to be approved for use by a national environmental protection agency, which refused authorisation in cases where a container was considered ill-suited to the system of return and reuse. The Danish government argued that the national rule was justified by a mandatory requirement related to the 37

Case 302/86 Commission v. Denmark (Danish Bottles) [1988] ECR 4607.

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protection of the environment, a ground not listed in the Cassis judgment.

In its judgment, the Court of Justice held that

environmental protection could constitute one of the mandatory requirements capable of limiting the application of Article 28. It proceeded to consider whether the Danish law was proportionate to the objective being pursued. The Court concluded that the law in question was disproportionate in that it restricted the quantity that could be marketed by a single producer in non-approved containers to 3,000 hectolitres per year. 48. In the recent decisions in Radlberger 38 and Commission v. Germany 39 , the Court of Justice considered the compatibility with Community free movement law of German rules imposing a “deposit and return” obligation in respect of non-reusable drinks packaging. The Court found that the German law constituted a disproportionate interference with the free movement of goods as it did not give producers a reasonable transitional period to adapt to the new system. The judgments are nonetheless of interest in that the Court again endorsed the proposition that national measures capable of hindering intra-Community trade may be justified by overriding requirements relating to protection of the environment provided that the measures in question are proportionate to the aim pursued. 49. Most recently, in Commission v. Austria 40 , the Court of Justice considered the compatibility with free movement rules of an 38

Case C-309/02 Radlberger v. Land Baden-Württemberg [2004] ECR I-11763. Case C-463/01 Commission v. Germany [2004] ECR I-11705. 40 Case C-320/03 Commission v. Austria [2006] 2 CMLR 12. 39

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Austrian rule prohibiting certain lorries from using a particular stretch of motorway. The Austrian government sought to justify the measure on grounds of environmental protection. Again, the Court applied the principle of proportionality, holding that the total ban was disproportionate and that the Austrian authorities ought to have examined the possibility of using less restrictive measures.

50. As a general rule, only indistinctly applicable measures can be justified under the Cassis mandatory requirements.

Distinctly

applicable measures can only be justified on one of the grounds listed in Article 30 of the EC Treaty. However, certain cases would appear to indicate a willingness on the part of the Court of Justice to consider arguments based on environmental protection even when assessing the legality of distinctly applicable measures.

Public procurement 51. In Concordia Bus 41 , the Court of Justice held that a city council which organised a tender procedure for the operation of an urban bus service was entitled to take account of ecological considerations when assessing tenders. The Court ruled that, where the contracting authority decides to award a contract to the tenderer whose tender is the most economically advantageous, it may take ecological criteria into consideration, provided that those criteria: ƒ

are connected with the subject-matter of the contract;

ƒ

do not give the contracting authority an unrestricted freedom of

choice; 41

Case C-513/99 Concordia Bus Finland [2002] ECR I-7213.

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ƒ

are expressly mentioned in the contract documents or the tender

notice; and ƒ

comply with all the fundamental principles of Community law, in particular the principle of non-discrimination.

52. Of particular interest in Concordia is the reference made by the Court of Justice to the “integration principle” enshrined in Article 6 of

the

EC

Treaty.

That

Treaty

provision

states

that

“[e]nvironmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3 [of the EC Treaty], in particular with a view to promoting sustainable development”. In Concordia, the Court concluded that the integration principle meant that a contracting authority acting under Directive 92/50 must be entitled to use criteria relating to environmental when assessing the most economically advantageous tender.

Member State competence after adoption of harmonising legislation

53. Where a particular aspect of environmental law has been harmonised at Community level, action by Member States must be assessed in light of that measure. The content and nature of the harmonising measure determines the extent to which Member States can take action at the national level, if at all 42 . As a general rule, justification under Article 30 of the EC Treaty or the mandatory requirements is no longer possible where Community 42

See Case C-2/90 Commission v. Belgium (Walloon Waste) [1992] ECR 4431.

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harmonising legislation has made provision for the necessary measures to protect those objectives 43 .

54. Certain directives adopted in the field of environmental law allow for differentiated integration, rather than total harmonisation, by establishing minimum standards only. In such situations, Member States are entitled to impose more stringent national requirements 44 .

Compatibility of Community legislation with the objective of environmental protection

55. Aside from national measures (considered above), the Court of Justice has also held that Community legislation itself may place limits on free trade in the interests of environmental protection. In the Waste Oils 45 case, the Court considered the compatibility with the free movement of goods of a directive on the disposal of waste oils. It recognised that “the principle of freedom of trade is not to be viewed in absolute terms but is subject to certain limits justified by the objectives of general interest pursued by the Community provided that the rights in question are not substantially impaired”.

56. It is interesting to note that the Court of Justice in the Waste Oils case declared environmental protection to be one of the Community’s “essential objectives”, notwithstanding the fact that at

43

See Case C-5/94 R v. MAFF ex parte Hedley Lomas [1996] ECR I-2553. See Case C-128/94 Hans Honig v. Stadt Stockach [1995] ECR I-3389; Case C389/96 Aher-Waggon v. Germany [1998] ECR I-4473. 45 Case 240/83 Procureur de la République v. Association de Défence des Brûleurs de l’Huile Usagées (Waste Oils) [1985] ECR 531. 44

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the time of the judgment the Treaty made no specific reference to the need for environmental protection.

CONCLUSION We are, I believe, entering a new era of the robust protection of the environment through the Community. It is a welcome development.

129

Perspectives on Marine Scientific Research Dr. Peter Heffernan 1 Abstract In the last fifteen years, Ireland has taken a number of significant steps towards recognition of itself as an island nation and the development of its own ocean economy. This paper outlines the advances made by Ireland and, in particular by Ireland’s Marine Institute, since its foundation under the Marine Institute Act in 1991. It also details the contributions made by Ireland to European thinking on the marine, with particular reference to the “Galway Declaration” of 2004. Over 70% of our planet is covered by the oceans. As well as providing the main moderating force for our climate and the largest single ecosystem on the planet, the oceans are also an enormous source of industry. In a recent study commissioned by the Marine Institute (1) the global market for maritime industries in the five years between 2005 and 2009 is estimated at around €4,363 billion. Of this, 56% will be contributed by services such as shipping, 30% from natural resources, 12% from manufacturing, and 1% from education and research. While 70% of our planet lies beneath the waves, 50% of Europe (in terms of physical territory) is also underwater. The sea provides Europe not only with a huge economic area, but also a vast natural heritage to be protected. It is a social and cultural space, an interface between the regions, a laboratory for basic and applied research and a challenge for innovative technology development. According to one estimate (2), the European

1

Chief Executive, Marine Institute, Ireland. The author’s PowerPoint presentation can be viewed on the accompanying CD.

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Peter Heffernan

maritime economy between 2005 – 2009 will be worth €1,443 billion, which is a very significant 32% of the global maritime economy. Already, between 3-5% of European GDP is generated by maritime industries. 90% of all EU external trade and 40% of internal trade is transported by sea. The European coastline is three times longer than that of the United States and twice as long as that of Russia, while 50% of the European population live within 50km of the ocean. In 2004 the “Galway Declaration” (2), endorsed by some 550 of Europe’s leading marine scientists, policy-makers and industry representatives at the EU EurOCEAN conference in Galway, during Ireland’s presidency of the European Union, drew attention to: x

The crucial role of the oceans in moderating climate, in the carbon cycle and, ultimately, in supporting life on earth;

x

The major contribution that the maritime sector can make to the Lisbon Agenda on the environment;

x

The supporting role of marine science and technology in generating the knowledge needed to fuel this economic development;

x

The key role of science and technology in supporting the sustainable management of marine resources ( according to the Gothenburg Agenda (3)) and ocean governance; and

x

The critical role the European Research Area / EU and Member State Marine Research Programmes play in supporting world-class excellence in marine science and technology.

In spite of all these benefits, until now ocean governance was restricted by our inability to “see” the ocean in the same way that we can readily view the terrestrial environment. However, modern technology, including underwater video and acoustic imagery has enabled us to view, map, and explore our territories below the seas, to survey the terrain in three dimensions, to create

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Perspectives on Marine Scientific Research

maps and computer models with the same clarity that we can accomplish on land. Furthermore, emerging technologies are allowing us to create “seafloor observatories” capable of relaying back a wealth of information from sensitive scientific instruments and remotely operated vehicles through fibre optic cables to the shore. Information on ocean currents, plankton levels, fish larval abundance and sedimentation rates, as well as video images and early warning systems on underwater seismic events that could lead to tsunamis are already being relayed back from such observatories in the Canadian Pacific Northwest, in Placentia Bay, Newfoundland and in Monterey Bay, California. In Europe, the ESONET proposal for a system of such underwater observatories in such locations as the Arctic, the Norwegian margin, the Nordic Seas, the Azores, the Iberian Peninsular and four other locations in the Mediterranean and the Black Sea will be eligible for funding under the EC Seventh Framework Programme (from 2007). This includes Celt Net, a glass fibre optical cabled network to monitor environmental change on a decadal cycle at locations on the Porcupine Bank and abyssal plain off Ireland’s southwest coast. Such real-time seafloor observatories offer the potential to dramatically transform man’s ability to understand, visualise, and predict the dynamics of our ocean ecosystems to the benefit of all mankind. On a global scale, the oceans offer us a number of significant challenges and opportunities, including: x

Rapid climate change

x

Health of the oceans

x

Renewable ocean energy

x

Sustainable fisheries and aquaculture

x

Blue biotechnology

x

Safe and efficient maritime transport

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Peter Heffernan

x

Ocean governance

The deep seas remain the last frontier on earth that has yet to be fully explored and, to explore and sustainably develop them fully, will best be addressed through co-operative action, including collaborative research and wise governance. From a European perspective, some of the building blocks towards collaboration and governance of the oceans have already been put in place for us to address these challenges. They include; x

Navigating the Future II – Integrating Marine Science in Europe (2003) by the Marine Board of the European Science Foundation ( to be updated in 2006)

x

EurOCEAN 2004 Conference and Galway Declaration (2004)

x

The Norwegian-led Oceans and Future Aspects of the European Marine Research Area Workshop (2004)

x

Networking Member State Marine Research Funding Programme – Marine ERA-NETS (2005)

x

European Marine Scientific Research Perspectives 2007-2013 (2005)

x

Co-ordination of marine research in the EU FP7 Programme (20072013)

x

EU Marine (Environment) Strategy (2005)

x

EU Green Paper – Towards a Maritime Policy for the Union (June 2006)

Ireland, as an island off the north-west coast of Europe, is coming to recognise that it is, after all, a maritime nation. Our marine resource encompasses some 900,000 square kilometres of seabed, which is a staggering ten times the land area of our country. Over the last ten years we have seen a rapid acceleration in the development of a world class capability in marine

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Perspectives on Marine Scientific Research

research and innovation that will be essential for our progress towards a truly maritime economy, which is reflected in the growth of our Marine Institute (Table 1.)

Year

1991-1995

1996-1998

1999-2002

Growth MI legislation

Integration

Rapid Growth Relocation

Nucleus formed Board

Marine Data Centre (resources, programmes Fisheries Research and facilties) Centre Restructuring RV Celtic Voyager (HR Strategy)

Executive National RTDI Program

Change (Galway move)

National RTDI Strategy

No. of 1-9 staff Budget €0.23€2.69m

IMDO Created

2003-2005

Build Oranmore New RV Celtic Explorer Stabilise/strengthen our service delivery Sharpen focus (Service/ Gaps/Plans) Review National RTDI Strategy

104

152

Implement National Research Programme 190-200

€10.58m

€32.3m

€34m

Table 1. Development of the Marine Institute (Foras na Mara) 1991 – 2005

Our most recent achievements include: x

The commissioning of two multi-purpose national research vessels;

x

The largest seabed mapping exercise ever undertaken in the world – a joint collaboration with the Geological Survey of Ireland to map our

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Peter Heffernan

900,000 square kilometres of ocean territory in the Irish National Seabed Survey (INSS); x

The quantification of Ireland’s ocean economy in the report Ireland’s Ocean Economy and Resources (5);

x

The building of a €39m, state of the art laboratory and headquarters facility at Oranmore, Co. Galway, which was opened by An Taoiseach in June this year; and

x

The refurbishment and extension of our laboratories at Newport, Co. Mayo, as a base from which to study the migration of salmon, trout, and eels as well as the effects of climate change on marine and freshwater systems.

The island of Ireland, situated as it is at the edge of the complex systems of the Atlantic Ocean, is an ideal natural laboratory from which to monitor the effects of climate change on the sea. Already, our records show an increase in overall sea temperature in the last thirty years in areas off the Irish west coast, which may have subtle but profound changes on oceanic circulation in the future. Our research vessel fleet is now capable of reaching any point in the Atlantic in order to monitor these changes and we will be collaborating with other laboratories, both in Ireland and abroad to study this vital issue. Over €250 million has been invested in key national infrastructure and capacity building in marine research in Ireland since the year 2000. This has gone into such projects as the expansion of our research vessel fleet, the creation of national data buoy and tide gauge networks, and into research on new ocean technologies such as a wave energy test site in Galway Bay. Outside the Marine Institute, there has been a significant upgrading of marine research and training facilities in the Third Level Sector including the

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Perspectives on Marine Scientific Research

National Maritime College of Ireland in Cork and the Marine Law and Policy Centre at the National University of Ireland, Galway. But most importantly, in recognition of the role that science has to play in developing our economy, Ireland is now preparing a National Strategy for Science, Technology and Innovation (2006 - 2013) with the view that, by 2013, this country will be internationally renowned for the excellence of its research, and will be at the forefront in generating and using new knowledge for economic and social progress, within an innovation driven culture. To this end, the Marine Institute has co-ordinated an extensive consultation process between all stakeholders to create “Sea Change – A Marine Knowledge, Research and Innovation Strategy for Ireland (20072013)” outlining a detailed programme of marine RTDI as the sector’s contribution to the overall national strategy. This programme proposes that research, knowledge, and innovation are essential elements of a new vision for Ireland’s marine sector which will see Ireland significantly increase the value of its ocean economy in the years to come. To support such a programme, it is anticipated that there will be a significant increase in the national STI budget (including the marine) from 2007-2013. A vision of Europe’s maritime economy was given by EU Commissioner Dr. Joe Borg in January 2005 as: a Europe with a dynamic maritime economy in harmony with the marine environment, supported by sound marine scientific research and technology, which allows human beings to continue to reap the rich harvest from the ocean in a sustainable manner. Ireland and the Irish marine sector are ready to make their contribution to this vision.

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References

(1) Douglas-Westwood Ltd. (2005) Marine industries global market analsyis, Marine Foresight Series No.1. (128 pp). Marine Institute. (2) European Commission (2006) Maritime Facts and Figures (Available online from: http://ec.europa.eu/maritimeaffairs/publications_en.html) (3) Galway Declaration (See: http://www.eurocean2004.com/galwaydeclaration.html) (4) Gothenburg Agenda (Available online from: http://www.eukn.org/eukn/themes/Urban_Policy/Urban_environment/ Environmental_sustainability/Gothenburg-Agenda_1044.html ) (5) Shields, Y., O’Connor,J. and O’Leary, J. (2005) Ireland’s Ocean Economy & Resources. Marine Foresight Series No. 4. (48 pp) Marine Institute.

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The Legal Regime of Marine Scientific Research: Current Issues Alfred H.A. Soons 1 Abstract Part XIII of the 1982 UN Convention on the Law of the Sea (UNCLOS) provides a detailed international legal regime for the conduct of marine scientific research (MSR) at sea. Although this regime formally only entered into force for the parties to UNCLOS in 1994, in many respects its provisions were already regarded as reflecting customary international law and this has been confirmed by subsequent practice. However, any legal regime is subject to change and it is therefore opportune to examine the current situation. Before addressing the current main issues concerning the implementation of the regime, the paper will briefly look at the effects the new regime for MSR in Part XIII of UNCLOS has had on the development of ocean science. It is interesting to note that in the past decade little attention has been paid to this question, as contrasted to the preceding years. Before and during UNCLOS III serious concerns had been voiced by scientists about the potential negative effects for ocean science of a consent regime for MSR in the vast maritime areas that would come under the jurisdiction of coastal States. Some studies were conducted to monitor state practice and the effects thereof, but the results were not conclusive. It would be useful to make an effort to obtain more recent information in order to attempt answering this question. This question cannot be adequately examined without looking at the related issue of the involvement of developing coastal States in the conduct of MSR. The paper will, inter alia, address the role the Intergovernmental Oceanographic Commission’s Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS) could play for this purpose.

1

Professor of public international law & Director, Netherlands Institute for the Law of the Sea, Utrecht University. The author’s PowerPoint presentation can be viewed on the accompanying CD.

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The main current issues concern the basic question of which ocean data collection activities come within the scope of the regime of Part XIII of UNCLOS. UNCLOS does not contain a definition of MSR, and this is part of the reason why at present there are uncertainties and differences of opinion on whether the MSR regime applies to some activities in the ocean, such as routine collection of oceanographic data (sometimes referred to as “operational oceanography”), and “bioprospecting” in seabed areas beyond national jurisdiction. Other current issues concern the implementation of some of the provisions of Part XIII of UNCLOS, such as Article 247 on procedures for consent for MSR conducted by or under the auspices of international organisations, the concerns over environmental effects of certain MSR activities, the provisions on dispute settlement, and the rights of land-locked and geographically disadvantaged States. Several of these issues are being dealt with at present in international fora, in particular the IOC/ABELOS. The paper will examine and comment on the work of the various international fora in the field of MSR. Introductory remarks Part XIII of the 1982 UN Convention on the Law of the Sea (UNCLOS) provides a detailed international legal regime for the conduct of marine scientific research at sea. Although this regime formally entered into force for the parties to UNCLOS only in 1994, in many important respects its provisions were already regarded as reflecting customary international law even before its entry into force and this has been confirmed by subsequent State practice. However, some of its provisions were not regarded as such or their status was unclear. Moreover, any legal regime is subject to change because of new developments and it is therefore opportune to examine the current situation, especially now that the Convention has been in place for almost 24 years and in force for 12 years.

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This is an appropriate time to take a closer look at its implementation and effects. 2 This contribution will discuss the main current issues concerning the implementation of the international legal regime of marine scientific research, both conventional and customary, as well as the role of the Intergovernmental Oceanographic Commission (IOC) in this respect. Before addressing those issues, a short summary of the regime will be provided and a brief look will be taken at the question of what effects the regime may have had on the development of ocean science. The contribution will end with some concluding remarks.

The international legal regime of marine scientific research During the 1970s and 1980s a gradual shift occurred from the 'old' regime of marine scientific research, as reflected in the 1958 Conventions on the Law of the Sea, to the 'new' regime that had been developed at the Third UN Conference on the Law of the Sea (UNCLOS III; 1973-1982) and became incorporated in UNCLOS. 3 The 'old' regime was relatively simple: within the 3-mile territorial sea the sovereignty of the coastal State gave it full control over any marine scientific research to be conducted there, and beyond the territorial sea marine scientific research could be freely conducted under the principle of the freedom of the high seas, with the only 2

It is also almost 25 years since the present author published his monograph, Marine scientific research and the law of the sea (Deventer, Kluwer Law and Taxation Publishers, 1982). This paper offers an opportunity to revisit some of the issues addressed in this book. Since 1982, only recently two additional monographs have been published in this field: M. Gorina-Ysern, An International Regime for Marine Scientific Research (Ardsley, NY, Transnational Publishers, 2003); F. H. Th. Wegelein, Marine Scientific Research. The Operation and Status of Research Vessels and Other Platforms in International Law (Leiden/Boston, Martinus Nijhoff Publishers, 2005). 3 See A. H. A. Soons, Marine scientific research and the law of the sea, op. cit., note 1, pp. 261-262.

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but important exception of marine scientific research on the continental shelf which required prior coastal State consent. 4 Uncertainties existed with respect to what exactly constituted research 'concerning the continental shelf and undertaken there'

5

(subject to coastal State control), and with

respect to the geographical extent of the continental shelf. 6 In addition, the establishment of extended fishing zones started to create uncertainties about the scope and geographical extent of coastal State jurisdiction over research activities relating to living resources in such zones. 7 The 'new' regime was radically different: apart from the vast expansion of maritime areas under the sovereignty of coastal States by the extension of the territorial sea to 12 nautical miles and the adoption of the concept of archipelagic waters, the introduction of the exclusive economic zone (EEZ) of 200 nautical miles and an expanded definition of the continental shelf resulted in a significant increase of maritime areas where the conduct of marine scientific research would be subject to coastal State consent and a consequential decrease of the area of high seas where the freedom of marine scientific research still remained. The new regime as negotiated at UNCLOS III constituted a compromise between the proponents of maximum freedom for marine scientific research and maximum coastal State control over marine scientific research. 4

Art. 5, paragraph 8 of the 1958 Geneva Convention on the continental shelf. Paragraph 8 provides: ‘The consent of the coastal State shall be obtained in respect of any research concerning the continental shelf and undertaken there. Nevertheless, the coastal State shall not normally withhold its consent if the request is submitted by a qualified institution with a view to purely scientific research into the physical or biological characteristics of the continental shelf, subject to the proviso that the coastal State shall have the right, if it so desires, to participate or to be represented in the research, and that in any event the results shall be published.’ See Soons, op.cit., note 1, pp. 55-82. 6 The definition of the continental shelf had remained open-ended because of the inclusion of the exploitability criterion in the definition in Art. 1 of the 1958 Geneva Convention on the Continental Shelf. 5

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In the maritime internal waters, archipelagic waters and territorial sea, the coastal State has full control over all marine scientific research: research shall be conducted only with the express consent of and under the conditions set forth by the coastal State. 8 In the EEZ and continental shelf areas marine scientific research is subject to a full consent regime differentiating basically between two categories of research, one subject to the discretionary authority of the coastal State to grant or withhold consent, the other subject to a more liberal regime where the coastal State should grant consent in normal circumstances. 9 The former category includes research which is of direct significance for the exploration and exploitation of natural resources, whether living or non-living; research involving drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment; and research involving the construction, operation or use of artificial islands, installations or structures. The latter category includes all other marine scientific research carried out in accordance with UNCLOS 'exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind'. 10 UNCLOS contains detailed provisions specifying the duty of researching States to provide information to the coastal State when requesting consent to conduct marine scientific research in the EEZ and on the continental shelf, 11 as well as on the conditions to be complied with by researching States. 12 These conditions may include participation or 7

Soons, op.cit., note 1, pp. 82-86. Arts. 245, 19(2), 21(1) and 40 UNCLOS. 9 Art. 246 UNCLOS. 10 Art. 246, paragraph 3, UNCLOS. 11 Art. 248 UNCLOS. 12 Art. 249 UNCLOS. 8

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representation in the research project by the coastal State, providing it with preliminary and final reports, and providing access to data and samples collected, and assistance in their assessment, to the coastal State. When these conditions are not being met during the conduct of the research, the coastal State may require suspension or even cessation of the project. 13 The request for consent must be made through official channels 14 at least six months in advance of the expected starting date of the project. 15 Marine scientific research in the water column of the high seas (viz., beyond 200 nautical miles) remains subject to the freedom of the high seas. 16 This also applies to marine scientific research in the International Seabed Area beyond the continental shelf. 17

Effects of the international legal regime on ocean science The impact of the ‘new’ regime for marine scientific research on marine science has received very little attention in the past two decades. This contrasts with the period before and during the Third UN Conference on the Law of the Sea, when serious concerns had been voiced by scientists and others 18 about the potential negative effects for ocean science of a consent regime for marine scientific research in the vast maritime areas that 13

Art. 253 UNCLOS. Art 250 UNCLOS. 15 Art. 248 UNCLOS. 16 Arts. 257 and 87, paragraph 1, UNCLOS. 17 Art. 256 UNCLOS. 18 See, e.g., W. S. Wooster, ‘Research in troubled waters: U.S. research vessel clearance experience 1972-1978’, Ocean Development and International Law 1981, pp. 219-239. J. A. Knauss and M. H. Katsouros, ‘The effect of the law of the sea on marine scientific research in the United States: recent trends’, in The U.N. Convention on the Law of the Sea: Impact and Implementation, E.D. Brown and R.R. Churchill eds., LSI, Honolulu 1987, pp. 373-382. J. A. Knauss and M. H. Katsouros, ‘Recent experience of the United States in conducting marine scientific research in coastal State exclusive economic zones’, in The Law of the Sea: What lies ahead?, T. A. Clingan ed., LSI, Honolulu 1988 pp. 297-309. 14

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would come under the jurisdiction of coastal States, while the need to obtain more knowledge of the marine environment would only increase. At the time, most marine scientific research projects were undertaken by institutions from a relatively small number of developed States, in many cases off the coasts of developing States. At the same time, developing States had expressed concern that their interests were not sufficiently taken into consideration during the planning and execution of such research projects, and were suspicious that they would not be in a position to benefit from the research results. The concern of scientists was that the number of marine scientific research projects requiring coastal State consent would increase, with the consequential possibility that more refusals and delays would occur. 19 The administrative procedures for obtaining coastal State consent and for ensuring compliance with conditions governing the execution of research projects would become more complex, and, perhaps more importantly, entail extra costs. Especially complying with the conditions ensuring coastal State participation, access to the results of the research and the data and samples collected, and assistance in the assessment and interpretation of the data, samples and research results, might increase the costs of individual research projects. 20 In sum, the planning and execution of marine scientific research projects in areas under coastal State jurisdiction would become more difficult and more expensive. This would apply even more in the case of research projects to be conducted within areas under jurisdiction of several coastal States. 19

G. J. Mangone, ‘The effect of extended coastal State jurisdiction over the seas and seabed upon marine science research’, Ocean Development and International Law, 1981, p. 217. 20 J. L. Jacobson, ‘Marine scientific research under emerging ocean law’, Ocean Development and International Law, 1981, pp. 193-194. Mangone, op.cit., note 19, p. 217.

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There was speculation that marine scientific research institutions might respond in several ways to these consequences of the new regime for marine scientific research. 21 One reaction could be to concentrate as much as possible on studies that could be carried out entirely beyond maritime areas under coastal State jurisdiction. The extent to which this can be done, however, is fairly limited since the most interesting areas for marine scientific research are the relatively shallow continental shelf and overlying waters. Another possibility would be to increase the amount of research to be conducted within the areas under the jurisdiction of the coastal State in which the research institution is located. The practicability of this possibility depends of course on the nature and extent of the area involved, in combination with the amount of research already being done in the area. Thirdly, marine scientists could continue to carry out research in areas under jurisdiction of other coastal States, but by concentrating on those areas which had proven to be the easiest accessible (in terms of the predictability, quickness and clarity of the coastal State's response to requests for consent, and the nature and extent of the conditions imposed by it). 22

21

L. Caflisch and J. Piccard, ‘The legal regime of marine scientific research and the Third United Nations Conference on the Law of the Sea’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1978, pp. 893-899. 22 Which coastal States would be the 'easiest accessible' ones would be difficult to predict. A coastal State's attitude towards marine scientific research to be conducted in areas under its jurisdiction by institutions from another State may be determined by a variety of factors, among which the most important ones seem to be its level of economic and scientific development and the corresponding perceptions it has of its own needs in these fields and of how these relate to the research project in question, and the efficiency of its own internal administrative procedures for handling requests for consent to do research. Apart from these general factors (determining the coastal State's attitude towards requests from any State) there is also a special factor which may determine its attitude vis-à-vis one particular State, or a particular group of States: the nature of the political relations between them.

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These scenarios were based on the assumption that scientists would remain passive and simply adapt themselves to the attitudes of coastal States. Another way for them to respond to the new regime would be to actively seek optimum conditions, within the overall framework of the new legal regime, for access to areas to be investigated. Because of the formal procedures involved in requests for coastal State consent (the obligatory use of diplomatic channels) this would mean urging and promoting the conclusion of agreements between the governments concerned. Such agreements, which could be either bilateral or regional, might create special, simplified procedures for obtaining consent or establish a mere notification system among the parties. In addition, they might establish special rules for the availability of research results, participation, training, transfer of technology, etc. Such regional agreements (or arrangements under the auspices of regional organisations) could work particularly well in regions where

the

participating

States

are

relatively

homogeneous

(politically/economically), and are all, at least to some extent, both researching and coastal States (element of reciprocity). Bilateral agreements could work under the same conditions, but would also be very suitable for arrangements between a researching State and a developing coastal State. These various potential responses to the new regime have in common that they might have considerable impact on the decisions to be taken with respect to the scientific questions to be studied. For example, they could result in decisions to concentrate research on the study of phenomena and processes occurring in areas beyond national jurisdiction, or to concentrate on local studies within the area under the researching State's own jurisdiction, or to concentrate on certain phenomena and processes which can adequately be studied within the areas under the jurisdiction of certain coastal States. This would mean that legal,

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administrative or political considerations would affect priorities to be given to the study of scientific problems. Although this is not uncommon, and to some extent unavoidable when governments are involved in decisions on budgets for scientific research, it could have undesired effects from the perspective of the advancement of fundamental marine science. During the 1970s and 1980s, some studies were conducted to monitor State practice and the effects thereof. However, the results were not conclusive in the sense that they identified no clear trends in the effects of the new regime on the actual planning and conduct of marine scientific research projects. Some of the experiences recorded have undoubtedly played a role during the negotiations on the provisions of Part XIII UNCLOS. In part in response to these concerns, explicit provisions were included in the Convention exhorting States to promote and facilitate the development and conduct of marine scientific research (Art. 239), to promote international co-operation (art. 242), to create favourable conditions for the conduct of marine scientific research (Art. 243), as well as to adopt reasonable rules, regulations and procedures to promote and facilitate marine scientific research beyond the territorial sea (Art. 255). Since the entry into force of UNCLOS there have been no indications of serious problems or marked shifts, but this is only an impression since no studies have been undertaken to monitor the implementation of the marine scientific research provisions of the Convention specifically from the perspective of effects on the focus of research projects and programmes. By and large it seems, from the absence of indications to the contrary, that scientists have adapted to the new regime without expressing concerns about any undesired impacts. But this

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conclusion is mainly based on anecdotal information. 23 However, it would be useful to make an effort to obtain more recent data on the experiences of scientists in order to attempt answering the question about the impact of the regime of marine scientific research more definitively. The same applies to the concerns of developing coastal States: a focused study would be needed to assess to what extent their concerns have actually been met by the new regime for marine scientific research.

Some current issues This part of the paper will address some of the current issues in the implementation of the marine scientific research regime of UNCLOS. First, the role of the Intergovernmental Oceanographic Commission (IOC) in this context will be dealt with. Then the scope of the regime of marine scientific research, more specifically the question of the definition of marine scientific research, will be mentioned. This will be followed by a short analysis of the first result of IOC efforts in the area of the marine scientific research legal regime: the recently adopted internal procedure implementing Art. 247 of UNCLOS (concerning research by or under the auspices of international organisations) for IOC. Subsequently, briefly attention will be paid to the settlement of disputes concerning marine scientific research issues, some of which may in the future also come on the agenda of IOC. However, not all issues can be addressed, such as those relating to concerns that are being raised that some marine scientific research activities are harmful to the marine environment. 24 23

Montserrat Gorina-Ysern provides much information on the practice and experience of the United States, including more recent one; Gorina, op. cit., note 1, pp. 3-182. A main problem currently for drawing general conclusions is the absence of reliable information from other countries. 24 Ph. A. Verlaan, ‘Experimental activities that intentionally perturb the marine environment: Implications for the marine environmental protection and marine

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Role of the Intergovernmental Oceanographic Commission: IOC/ABELOS When addressing some of the current issues of implementation of the international legal regime of marine scientific research it is appropriate to start with the involvement of the main competent international organisation in this field, viz., the Intergovernmental Oceanographic Commission (IOC) of UNESCO. The IOC has dealt with the implementation of UNCLOS Part XIII at various moments since the adoption of the Convention, but it started to pay more intensive attention to its role in implementing the Convention after its entry into force. In 1997 the IOC Assembly established a new standing subsidiary body, the Advisory Body of Experts on the Law of the Sea (IOC/ABELOS). 25 Each member State of IOC can appoint two members, preferably one with scientific expertise and one with legal expertise. IOC/ABE-LOS has been meeting annually since 2001 for one week at different locations. Six sessions have been held so far. 26 In practice, it is a mixed group of administrators, marine scientists and legal experts who represent their governments. Approximately 45 IOC Member States are participating in IOC/ABE-LOS. 27 The first project completed by IOC/ABE-LOS was the adoption of ‘IOC Criteria and Guidelines on the Transfer of Marine Technology’

scientific research provisions of the 1982 United Nations Convention on the Law of the Sea’, Marine Policy, 2006. 25 IOC Assembly Res. XIX-19 (1997). 26 The annual sessions of IOC/ABE-LOS have been held in (I) 2001: Paris (UNESCO), France; (II) 2002: El Jadida, Morocco; (III) 2003: Lisbon, Portugal; (IV) 2004: Lefkada, Greece; (V) 2005: Buenos Aires, Argentina; (VI) 2006: Malaga, Spain. The (VII) 2007 session will be held in Libreville, Gabon. 27 Website: http://ioc3.unesco.org/abelos/

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(CGTMT) in 2003. 28 The second project on the application of Art. 247 of UNCLOS by IOC was completed in 2005 (see below). Presently IOC/ABELOS is working on the drafting of guidelines for the collection of oceanographic data by specific means (see below). IOC/ABE-LOS has also been involved in collecting information on the practice of the Member States in relation to marine scientific research and the transfer of marine technology. This work is being carried out by Questionnaires circulated by the Secretariat to the Member States. Although some useful information has been collected, the result is still too incomplete to derive firm conclusions on many questions concerning the implementation of the provisions of UNCLOS on marine scientific research.

Scope of the regime: definition of marine scientific research One of the main current issues concerns the exact scope of the regime of Part XIII of UNCLOS. There is uncertainty over which data collecting activities in the ocean qualify as marine scientific research, and thus are subject to the regime of Part XIII of UNCLOS, and which activities are governed by other rules. Obviously, this is a very significant issue that will deserve careful attention over the coming years both within and outside IOC/ABE-LOS. There is no definition of ‘marine scientific research’ included in the Convention. During the negotiations at UNCLOS III, initially attempts were made to include such a definition but ultimately it was decided to abandon this effort and leave the question to the interpretation of the provisions themselves. 29

28 29

IOC Assembly Res. XXII-12 (2003). See Soons, op.cit., note 1, pp. 118-125.

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Data collection for resource exploration is evidently covered by separate regimes, as is hydrographic surveying. 30 However, different views are expressed with respect to various modes for routine collection of oceanographic data, including such collection by modern technology as drifting buoys and floats (e.g. the Argo project floats), and even by XBTs from Voluntary Observing Ships. The IOC Assembly has instructed IOC/ABE-LOS to examine this matter and draft practical guidelines for IOC for the collection of oceanographic data by these means. Since these issues are covered by a separate chapter in this volume by Capt. Ashley Roach they will not be further addressed here. Another particular question currently deserving attention involves to what extent the marine scientific research regime applies to 'bioprospecting'. 31

Implementation of Article 247 UNCLOS UNCLOS contains one provision (Article 247) that was included specifically in view of potential future complications caused by the application of the bilateral consent procedures in situations where multiple coastal and researching States would be involved in a marine scientific research project. The origin of Article 247 was an informal proposal submitted by Portugal during the sixth session (1977) of UNCLOS III, 32 which was

30

Ibid. See T. Scovazzi, ‘Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-Bed Authority’, 19 International Journal of Marine and Coastal Law, 2004, pp. 383409. 32 This informal proposal is included in T. Treves, ‘La ricerca scientifica nel testo composito informale di negoziato del 15 luglio 1977’, in La ricerca scientifica nell’evoluzione del diritto del mare, T. Treves ed., Milan 1978, pp. 53-90, at note 10. 31

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included by the chairman of the Third Committee in the Informal Composite Negotiating Text (ICNT) as Draft Article 248. Draft Article 248 ICNT read as follows: Article 248. Research project under the auspices of, or undertaken by, international organizations A coastal State which is a member of a regional or global organization or has a bilateral agreement with such an organization, and in whose exclusive economic zone or on whose continental shelf the organization wants to carry our a marine scientific research project, shall be deemed to have authorized the project to be carried out, upon notification to the duly authorized officials of the coastal State by the organization, if that State approved the project when the decision was made by the organization for the undertaking of the project or is willing to participate in it. The President of the Conference explained the inclusion of this provision in his Memorandum accompanying the ICNT: To meet the concerns of several delegations which felt that research projects undertaken under the auspices of or by an international organization should be facilitated through a special regime, a new article–248–has been incorporated in the composite text. 33 This draft article was substantially the same as the present Article 247, except for two changes. At the eighth session of the conference (Spring 1979) France introduced an informal proposal modifying the original draft in several respects. 34 The two main elements of this proposal were:

33

A/CONF.62/WP.10/Add.1 (1977), Marine scientific research, Off. Rec., vol. VIII, p. 65, at p. 69. 34 Informal doc. MSR/4. Reproduced in R. Platzöder, Third UN Conference on the Law of the Sea: Documents, vol. X, p. 390. The French proposal read as follows: A coastal State which is a member of a global or regional intergovernmental organization or has a bilateral agreement with such an

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(i)

(ii)

a clarification to the effect that the provision would only apply to the detailed projects approved in the framework of intergovernmental organisations, and the introduction of a possibility of implied consent even by the coastal States which had not participated in the decision of the organisation (or at that time had not agreed to it), by providing that those States would be deemed to have authorised such projects to be carried out in their exclusive economic zone if they had not expressed any objection within four months of notification of the project by the organisation to them. The first element of the French proposal was generally viewed as an

improvement of the text, and the chairman of the Third Committee therefore suggested its incorporation in the ICNT/Rev. 2. The second element, however, although it could be regarded as merely a specific expression of the implied consent rule already embodied in (then) article 253 ICNT, proved to be controversial and finally resulted in an addition to the original text with an effect opposite to the intention of the French proposal: the chairman of the Third Committee suggested to provide at the end of the article that coastal States, even if they had previously approved the detailed project in the framework of an international organisation, would be entitled to express objections (to the project to be carried out) within four months of notification of the project by the organisation to them. The chairman's proposals were subsequently incorporated, with several minor drafting and stylistic changes, in draft Article 247 of the

organization, and in whose exclusive economic zone or on whose continental shelf the organization wants to carry out a marine scientific research project, shall be deemed to have authorized the project to be carried out in conformity with the agreed specifications if that State approved the detailed project when the decision was made by the organization for the undertaking of the project, or is willing to participate in it or has not expressed an objection within four months of notification of the project by the organization to its duly authorized officials.

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ICNT/Rev.2 and ICNT/Rev.3, and eventually Article 247 of the Convention, as adopted at the final session of UNCLOS III. Already during UNCLOS III, Bernard Oxman commented on the potential significance of the (then still draft) article as follows: 35 On its face, [Article 247] merely seems to say that the coastal State may consent in different ways. However, on another level, the article seems to reflect a perception among developing countries that negative control over scientific research is insufficient. The power to stop a project does not ensure that projects of concern to developing countries will be carried out. Since the underlying aim must be to marshal sophisticated and expensive scientific capabilities, a question of incentives arises. Few states have coastlines long and exposed enough to be able, on their own, to entice foreign projects into their area. This article seems to say that in exchange for cooperation by major research states and institutions in the conduct of scientific research by regional or global organizations (a collective effort under heavy developing country influence) predictability will be enhanced and bureaucratic problems simplified with respect to the coastal States that have approved or are participating in the project. On a more practical level, in the absence of arrangements of the type contemplated by this article, the administrative problems of organizing meaningful large-scale projects in areas bordered by many coastal States, such as the Caribbean or West-Africa, could be a considerable disincentive to research. It is also useful to quote the discussion of this provision in the UN Guide to the implementation of the marine scientific research provisions of

35

B. H. Oxman, ‘The Third United Nations Conference on the Law of the Sea: The 1977 New York Session’, American Journal of International Law 1978, pp. 57-83, at pp. 77-78. Oxman was a member of the US delegation to UNCLOS III.

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the Law of the Sea Convention. 36 This Guide contains the following paragraphs dealing with Article 247: 66.

Article 247 provides for a special procedure for marine scientific research projects which are conducted by, or under the auspices of, an international organization in the exclusive economic zone or on the continental shelf of its member States or of other coastal States having special bilateral agreements with the organization. Such a coastal State is deemed to have given consent to the research project if: (a) The coastal State approved the detailed research project when the organization made the decision to undertake the project or if it is willing to participate in it; and (b) It has not expressed any objections within four months of notification by the organization. 67. The decision of the organization referred to in article 247 is a decision made during the final stage of preparation, when the States involved have sufficient information on which they can base their approval for the purpose of that article. In order to avoid misunderstandings, it would be advisable to specify expressly in the text of the decision by the organization for the undertaking of the project that it is approved under article 247. 68. The right of the coastal State to object to the execution of the research project may be exercised within four months of the notification of the project by the organization to the coastal State. This provision of article 247 must be read in its context, of which article 246 is an especially relevant part. The coastal State is only entitled to object to the research project to be carried out if the project comes within the scope of the coastal State's discretion to withhold consent (article 246, paragraph 5) or if the coastal State would otherwise have been entitled to invoke the existence of abnormal circumstances in accordance with article 246, paragraphs 3 and 4. 69. Article 247 is of particular importance for those marine scientific research projects which can only be executed meaningfully when access is available to the exclusive economic zones of several coastal States. At the same time, the article can stimulate the conduct 36

Marine Scientific Research. A Guide to the Implementation of the Relevant Provisions of the United Nations Convention on the Law of the Sea. Published by the Office for Ocean Affairs and the Law of the Sea. United Nations, New York, 1991.

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of research projects in which both the coastal States and researching States from outside the area have an interest. 70. The procedure envisaged in article 247 may be seen as an integrative process enabling long-term planning. A project conducted in such a manner should be discussed first between scientists involved before it is presented at the intergovernmental level. Article 247 can be used by any global or regional intergovernmental organisation with competence in the field of marine scientific research. It is up to each organisation to adopt its own internal procedure for this purpose, on the basis of its own constituent instrument and any relevant rules adopted by it. The IOC Assembly identified Article 247 as one of the provisions of UNCLOS where IOC had a particular role in its implementation, and charged IOC/ABE-LOS with preparing a draft for an internal procedure within IOC. After initial discussions at its first session in 2001,37 IOC/ABELOS appointed the present author as co-ordinator for this project and extensively discussed various drafts for several years. In 2005 a Procedure for the Implementation of Article 247 of UNCLOS was finalised which was subsequently adopted by the IOC Assembly without change. 38 The full text of this Procedure is attached to this paper as an Annex. The Procedure envisages that proposals by IOC Member States to apply Art. 247 UNCLOS to particular marine scientific research projects will be submitted to the IOC Executive Secretary. Such proposals will be referred by the Executive Secretary to a newly to be established Advisory Body for the application of Article 247 of UNCLOS, in which all Member States are entitled to participate (paras 2-3). This Advisory Body will

37

See paper by A. H. A. Soons, Procedures to be followed within international organizations to conduct marine scientific research including the ARGO project in the context of UNCLOS,UNESCO Doc. IOC/ABE-LOS I/9, 2001. 38 IOC Assembly Res. XXIII-8 (2005).

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recommend to the Assembly whether or not the project should be carried out. A recommendation proposing that the project shall be undertaken by IOC should contain the information referred to in Art. 248 UNCLOS and the proposed ways to comply with the conditions set out in Art. 249 UNCLOS (para 4). This requirement may be difficult to meet in cases of projects that will take several years to complete. The draft resolution to be adopted

by

the

Assembly

containing

this

information

shall

be

communicated to all Member States at least two months in advance of the Assembly meeting at which it is tabled (para 5). Regular IOC Assembly sessions take place only every other year, but if necessary for this purpose an extraordinary session could be convened (para 6). If the Assembly approves the project, it may be carried out six months after the project had been notified by the Executive Secretary to the coastal States involved, unless a coastal State has communicated its objection to this within four months of receipt of the notification (paras 8-9). Projects may only be carried out in the exclusive economic zones or on the continental shelves of member States that in the Assembly have voted in favour of the proposal or have otherwise expressed their willingness to participate (para 7). It will be clear from the above summary of the procedure that it is quite cumbersome, and for that reason one may wonder if it will ever be implemented by IOC. There is very little practice of other international organizations using internal simplified procedures for obtaining consent for marine scientific research by member States. According to Wegelein, the Pacific International Council for the Exploration of the Sea (PICES; the North Pacific Marine Science Organization) adopted an internal procedure based on Art. 247 in 1996. 39 He provides no information on the actual practice of 39

Wegelein, op. cit., note 1, pp. 316-317.

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the organization. Earlier attempts had been made in the framework of ICES and the European Community; both have failed. 40

Dispute settlement It is interesting to note that no disputes between States that may have arisen specifically over marine scientific research have yet been submitted to any procedure for the settlement of disputes under UNCLOS, or, for that matter, to any procedure under international legal instruments. The dispute settlement procedures entailing binding decisions of UNCLOS apply also to the provisions of Part XIII, 41 except for disputes concerning the interpretation or application of Arts. 246 and 253. Such disputes are subject to the Conciliation procedure under Annex V, Section 2, of the Convention, and even then the Conciliation Commission may not call in question the exercise by the coastal State of its discretionary powers of Art. 246, paragraphs 5 and 6. 42 One of the options State Parties to UNCLOS may choose for the settlement procedures entailing binding decisions is ‘Special Arbitration’ under Annex VIII of UNCLOS, providing a procedure for such Special Arbitration in four fields, including marine scientific research. Lists of Experts in these fields are maintained by the competent international organizations from which parties to a dispute may choose when an arbitral tribunal under Annex VIII has to be constituted. Each Party to UNCLOS may designate two experts. The Executive Secretary of IOC maintains the list of experts in the field of marine scientific research under Annex VIII. About 45 parties to UNCLOS have to date designated such experts. 40

A. H. A. Soons, ‘Regulation of Marine Scientific research by the European Community and its Member States’, 23 Ocean Development and International Law, 1992, pp. 273-275. Wegelein, op. cit., note 1, pp. 290-291. 41 Art. 264 UNCLOS.

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Some issues potentially giving rise to controversies that may have to be settled by the UNCLOS procedures, in addition to those already discussed above relating to the definition of marine scientific research, are mentioned briefly below.

Research of direct significance for the exploration and exploitation of natural resources Article 246, paragraph 5 UNCLOS provides that the coastal State may, in its discretion, withhold consent to the conduct of a marine scientific research project in the EEZ or on the continental shelf which ‘is of direct significance for the exploration and exploitation of natural resources’. This provision obviously is not very clear, in particular if it is to distinguish such data collecting activities from resource exploration subject to a different regime. It would be helpful to develop criteria for this purpose. In fact, Art. 251 of UNCLOS was specifically included in the Convention in order to further clarify this and other related provisions. 43 Art. 251 stipulates that States should seek to promote through competent organizations the establishment of general criteria and guidelines to assist States in ascertaining the nature and implications of marine scientific research. It seems that there is an important role for IOC/ABE-LOS in this connection.

Rights of land-locked and geographically disadvantaged States Article 254 UNCLOS stipulates that researching States which have submitted a request to undertake a marine scientific research project to a coastal State “shall give notice to the neighbouring land-locked and geographically disadvantaged States, and shall notify the coastal State

42 43

Art. 297, paragraph 2 UNCLOS. See Soons, op.cit., note 1, pp. 195-196.

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thereof.” After consent has been given, the researching State should provide to the neighbouring land-locked and geographically disadvantaged States, “at their request and when appropriate”, relevant information as specified in Art. 248 and Art. 249(1)(f). These States should also be given an opportunity to participate, and they should be provided the information and assistance specified in Art. 249(1)(d). There is no information that these provisions have ever been implemented. One major problem is that it may be difficult to identify the 'neighbouring land-locked and geographically disadvantaged States' in specific situations. UNCLOS does not contain a definition of such States. Also the words “when appropriate”, qualifying the obligation to provide information,

introduce

a

highly

subjective

element

in

their

implementation. 44 It would seem that these provisions of UNCLOS will most probably never be implemented. As a result, over time they will lose force as treaty rights and obligations. And it is extremely unlikely they will ever come to reflect rules of customary international law.

Implied consent Article 252 UNCLOS provides that researching States may proceed with the execution of a marine scientific research project six months after the request for consent was submitted unless the coastal State within four months of receipt of the request has notified the researching State that it has withheld its consent or requested additional information.

44

See Soons, op.cit., note 1, pp. 204-211.

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There is very little information available on State practice in respect of this provision. 45 The IOC/ABE-LOS Questionnaire results have so far indicated that some States have applied this provision but the information is not clear, in particular in relation to non-parties to UNCLOS. Some States refer to it in their national legislation, but mostly it is not expressly regulated. It seems that in actual practice most research vessels would be reluctant to proceed with research in the EEZ or on the continental shelf of a coastal State which has not explicitly granted consent. This again is an area where more detailed study would be helpful in order to assess the implementation of UNCLOS (and the relevant rules of customary international law).

Concluding remarks Although there are a number of current unclear and controversial issues, overall the new regime seems to be working without great problems. Annually, hundreds of requests for consent to undertake marine scientific research projects in areas under coastal State jurisdiction are made and apparently few of these are rejected or delayed, or at least cause a problem that attracts attention outside the persons directly involved. Interestingly, there seem to be few cases where States have agreed on simplified procedures between them, either bilaterally or regionally, in stead of the UNCLOS procedures. However, the available information on State practice is limited and should be examined with care. 45

A. H. A. Soons, ‘The developing regime of marine scientific research: recent European experience and State practice’, in New developments in marine science and technology: economic, legal and political aspects of change, L. M. Alexander, S. Allen and L. Carter Hansen eds., LSI, Honolulu 1989, pp. 303-304. Also Wegelein and Gorina (op.cit., note 1), provide information on the practice with respect to implied consent, but again not conclusive.

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On a larger scale, information on the effects of the regime on the development of marine science as such, and what effects the regime has had on the position of developing coastal States in the field of marine science (including capacity building), is even more difficult to obtain. For this reason, it is important to continue studying these issues, and to continue the debate, both among scholars and policy makers. It is essential that efforts will be made to involve the marine scientific community in these discussions, not just administrators and legal experts, more than has been the case over the past two decades.

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Annex to Assembly Resolution XXIII-8 (2005) Procedure for the Application of Article 247 of the United Nations Convention on the Law of the Sea by the Intergovernmental Oceanographic Commission of UNESCO 1. This Procedure will apply to a marine scientific research project governed by the provisions of Part XIII of the UN Convention on the Law of the Sea ("the Convention") which the Intergovernmental Oceanographic Commission (“the Commission”) wants to carry out in accordance with Article 247 of the Convention. 2. The Assembly hereby establishes, in accordance with the Commission´s Statutes and Rules of Procedure, an advisory body for the application of this procedure (the Advisory Body for the application of Article 247 of the United Nations Convention on the Law of the Sea by the Commission, the “Advisory Body”). All IOC Member States are entitled to participate in the work of the Advisory Body. 3. An initiative by one or more IOC Member States to submit a proposal that the Commission undertake a marine scientific research project under Article 247 of the Convention shall be referred by the Executive Secretary to the Advisory Body. The Executive Secretary shall ensure that all Member States in whose exclusive economic zone (“EEZ”) or on whose continental shelf such project is to be carried out, or otherwise to be involved in the execution of the project, shall be appropriately and timely notified and be invited to participate in the discussion of the proposed project within the Advisory Body. 4. The Advisory Body shall make a recommendation to the Assembly as to whether or not the proposed project should be carried out. A positive recommendation by the Advisory Body that the Commission undertake the proposed project shall be submitted to the Assembly in the form of a draft resolution. To the draft resolution shall be annexed a detailed description of the project containing the information referred to in Article 248 of the Convention and the proposed ways to comply with the conditions set out in Article 249 of the Convention. 5. A decision that the Commission undertake a marine scientific research project under Article 247 of the Convention shall be taken by the Assembly by means of the adoption of a resolution. The draft for such a resolution, together with the Annex as referred to in paragraph 4, shall be

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communicated to all Member States at least two months in advance of the starting date of the meeting of the Assembly, and shall explicitly indicate that its adoption is for the purpose of applying Article 247 of the Convention. 6. If it is deemed necessary for an effective execution of the proposed project, the Assembly will be convened, in accordance with the Rules of Procedure of the Commission, in an extraordinary session for the purpose of the adoption of the resolution. Such session can only be held if the conditions of paragraphs 3 and 4 are respected. 7. Subject to paragraphs 8 and 9, a project shall not be carried out in the EEZ or on the continental shelf of a Member State unless that State has voted in favour of the resolution referred to in paragraph 5 or has otherwise expressed its willingness to participate in the project as described in the Annex to the resolution prior to the notification referred to in paragraph 8. 8. The IOC Executive Secretary shall provide notification through appropriate official channels to each Member State in whose EEZ or on whose continental shelf the research project is to be carried out as soon as possible after the adoption of the resolution, but no later than six months in advance of the actual starting date of the project in the EEZ or on the continental shelf. The notification shall include the text of the adopted resolution and its Annex. 9. The research activities may be commenced in the EEZ or on the continental shelf of a Member State six months after the receipt of the notification referred to in paragraph 8 by the Member State if no objection has been communicated by such State to the IOC Executive Secretary within four months of the receipt of that notification. 10. In case of a marine scientific research project under Article 247, part of which is planned to be carried out in the EEZ or on the continental shelf of a coastal State which is not a Member of the Commission, bilateral negotiations may be initiated by the Commission with the coastal State in question, with a view to conclude an agreement on the conditions under which the research activities may be carried out in those maritime zones. The coastal State shall be invited to contribute to the discussion of the project before its submission to the Assembly. The part of the project concerning such a coastal State may be only carried out if the referred agreement, including in the Annex to the resolution corresponding to the project, has been concluded between the coastal State and the Commission,

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in conformity with the Statutes and Rules of Procedure of the Commission. In that event, paragraphs 8 and 9 of the present procedure will apply. 11. Nothing in this Procedure shall prejudice the rights, jurisdiction and duties of States under the international law of the sea, in particular the Convention. This Procedure shall be interpreted in the context of and in a manner consistent with the provisions of the Convention.

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PANEL II: ECOSYSTEM APPROACH TO FISHERIES MANAGEMENT

Ecosystem-based Fisheries Management in Iceland Implementation and Practical Considerations Jóhann Sigurjónsson 1 Abstract Managers and fisheries scientists providing advice have for many years discussed and argued definitions of an ecosystem-based approach to marine fisheries. This concept has been on the agenda of international fora in recent years and on several occasions dedicated international conferences and symposia have been held. The Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem, held in 2001 addressed the scope of the concept and subsequently the FAO produced basic guidelines for implementation. As a follow-up, various fora have devoted immense efforts to define indicators and scientific criterias to be applied. Despite all the efforts, we still do not move very fast towards implementation and there is even some misconception as to what this is about. The Reykjavik Conference concluded that there was no reason to wait, since many of the measures that are being implemented under singlespecies management schemes are in the spirit of ecosystem-based fisheries management. We need simply do it better. Also it was stressed that although a fully fledged ecosystem-based management scheme of the ocean resources is the ultimate goal, it needs be understood that in order to achieve this we may have to undergo a lengthy incremental process. But it is urgent to start now. In this presentation, some examples are given as to how such a concept has been excercised in Iceland under the single-species scheme. While it is important to study and define criteria under the scope of a holistic view of the marine ecosystem in its greatest complexity, a more simple approach may provide some steps forward. For scientists involved in single-species assessment of fish stocks, a systematic mapping of various 1

Director-General, Marine Research Institute, Iceland. The author’s PowerPoint presentation can be viewed on the accompanying CD. The author’s paper will appear in a UN publication. It was originally delivered at the Seventh meeting of the Open-ended Informal Consultative Process on Oceans and the Law of the Sea, Discussion Panel “Ecosystem Approaches and Oceans,” Segment 3A: “Lessons Learned from Implementation of Ecosystem Approach at the National Level in Developed States” in New York, 12-15 June 2006. On the Web at: http://www.un.org/Depts/los/consultative_process/7thmeetingpanel.htm 169

Jóhann Sigurjónsson

relevant aspects is suggested and discussed. The presentation will report on such a pragmatic approach, involving consideration of assessment methods and bases for scientific advice, the effects of fisheries on discards of target and non-target species, the effects of fisheries on the physical environment and certain ecosystem components, multispecies considerations, and the effects of environmental changes on the target stocks. Such an approach is meant to help scientists focus on aspects that are relevant in this context, to help identify gaps and research needs, and to draw attention to all stakeholders to these factors. Later it may contribute to a more holistic ecosystem approach to the managment of the fisheries and other ocean resources.

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The Ecosystem Approach to Fisheries: on the Way to Implementation 1 S. M. Garcia 2

Abstract The Ecosystem Approach to Fisheries (EAF) was adopted in FAO in 2003, following the 2001 Reykjavik Conference. Within the overall policy framework of the Code of Conduct for Responsible Fisheries (CCRF), the EAF technical guidelines, published in 2003, together with other CCRF guiding documents on fisheries management, sustainability indicators, precautionary approach, ecolabelling, etc., provide a very substantial amount of support to EAF implementation. This implementation has slowly progressed during the last 5 years at global, regional, and national levels and a brief summary of the action, particularly at FAO and in RFMOs is given. In the process, more information is collected about detailed operational issues, challenges, and conditions for a successful implementation and sustainability of the EAF concept, and these are listed. It is concluded that much more effort is needed, particularly at regional and national levels, with strong support to developing countries and poor communities, if EAF is to be something more than a new declaration of concern and good intentions in front of the ancestral problem of unsustainable use of natural renewable resources.

1

A first version of this paper was developed in support of a short presentation made at the Global Fisheries Forum, in IOC-Unesco, Paris, in January 2006. The present draft was further developed for the 30th Virginia Law of the Sea Conference on Law, Science & Ocean Management, organized by the Center for Oceans Law and Policy, University of Virginia, and held in Dublin, Ireland, 12th - 14th July 2006. 2 FAO Fisheries Department. The author’s PowerPoint presentation can be viewed on the accompanying CD.

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Introduction

The concepts and policy commitments underpinning the Ecosystem Approach to Fisheries (EAF) were developed at the Iceland-FAO Conference on the Responsible Fisheries in the Marine Ecosystem, in Reykjavik, September 2001 (FAO, 2002). The approach was easily adopted by the FAO Committee on Fisheries (COFI) at its subsequent session in 2003. The approach emerged as a natural enhancement of the 1995 Code of Conduct for Responsible Fisheries, from which it draws its fundamental principles, underlining and re-organizing them around the numerous ecological aspects the Code had inherited from the Law of the Sea, UNCED, the Agenda 21, and the CBD. Building on an earlier and slow implementation

of

the

sustainability

indicators

and

precautionary

approaches to fisheries, to which it gives a strong impulse, the EAF has been rapidly and widely taken up at global, regional, and national levels. Because it is based on the broad framework for responsible fisheries, the FAO EAF is realistically adapted to fisheries and is itself purposely broad in intent covering the ecosystem considerations related to fishing operations, management, trade, research, and aquaculture. The first EAF guidelines (FAO 2003) relate specifically to marine capture management. They are published as a supplement to the specific management guidelines already available (FAO 1995) which they extend and of which they constitute an integral part, and are strengthened by the available guidelines on sustainability indicators (FAO 1999), the precautionary approach to fisheries (FAO 2003), and ecolabelling (FAO 2005b). They will soon be further strengthened by the FAO Guidelines on the Use of Marine Protected Areas in Fisheries which are under active preparation.

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Although this may still not be considered sufficient by some stakeholders, there are probably not many more complete sets of conceptual and operational guidance for the implementation of the ecosystem approach in general, or its application to fisheries in particular. Operating within a science-based consensual process, the FAO guidelines offer a recurrent, participative, and adaptive process, integrating the precautionary approach as the best way to proceed, learning in the process and improving the guidelines as the implementation proceeds. The “success” met by the EAF concept in very little time and its rapid taking up (if not formal binding adoption) at global, regional, and national levels, at least in some developed countries, is still largely political and conceptual. The overall matrix of guidance needed at all levels by all actors along the action chain, from decision-makers and advisers to fishers, traders, consumers, and the public at large is already overwhelming. The key word is “operationalization”. The present decade will either demonstrate the willingness and ability of all the stakeholders to collaborate in its full implementation or the usual policy rhetoric combined with partial implementation, repeating the “too little too late” syndrome that has affected fisheries management for the last 50 years. Following an earlier attempt to reflect on the ongoing EAF implementation process (Garcia and Cochrane 2005), this paper will briefly recall some elements of the EAF conceptual implementation framework. It will then review the work undertaken by FAO to facilitate international collaboration: stimulate its regional fishery bodies; develop guidelines, action

plans,

and

strategies;

undertake

detailed

studies;

develop

methodology; organize technical meetings and conferences; provide implementation assistance at global regional and local levels; and develop global information exchange systems. The developments in non-FAO

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regional fishery management organizations will also be briefly reviewed. The lessons learned during implementation will be drawn before concluding.

1. Conceptual Implementation Framework Definition

The “Malawi Principles” (UNEP 1998) for the generic ecosystem approach require: (i) relating management objectives to societal choices; (ii) decentralisation

of

management

powers;

(iii)

consideration

of

transboundary effects; (iv) understanding economic implications and drivers; (v) conserving ecosystem structure and functions; (vi) managing ecosystems within their limits and (vii) at the appropriate scale; (viii) recognizing temporal time scales and lags, setting objectives for the long term; (ix) accepting that change is inevitable; (x) seeking an acceptable balance between conservation and use; (xi) considering local knowledge; and (xii) involving all relevant sectors of society and science disciplines. Within such a general conceptual framework, the specific purpose of the ecosystem approach to fisheries is to plan, develop, and manage fisheries in a manner that addresses the multiple needs and desires of societies, without jeopardizing the options for future generations to benefit from the full range of goods and services provided by marine ecosystems. An ecosystem approach to fisheries strives to balance diverse societal objectives, by taking into account the knowledge and uncertainties about biotic, abiotic, and human components of ecosystems and their interactions and applying an integrated approach to fisheries within ecologically meaningful boundaries (FAO 2003).

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The Ecosystem Approach to Fisheries

The “Extension” Concept The Ecosystem Approach to Fisheries, as adopted by FAO is an extension, with better implementation, of the conventional fisheries management. It implies an extended role for fishery science, for fisheries administrations, and a more responsible behavior of fishers and the fishing industry. In terms of operational guidance, the extension concept is a fundamental specification. It admits that the EAF will only be successfully implemented if, at the same time, a much more complete and effective implementation of the conventional approach is undertaken, resolving the recurrent problems of overcapacity and over-fishing. It also means that a lot of the guidance needed for EAF is already available under conventional management 3 and only needs to be put to good practice. However, the extension strategy charts an implementation route into informational and institutional territories yet to be mapped. Conventional approach

Extension

Ecosystem approach

Few objectives Multiple objectives Sectoral Integrated Target / non target species Biodiversity & environment Stock / fishery scale Multiple (nested) scales EAF strives to balance diverse societal objectives, by taking account Adaptive Predictive of the knowledge and uncertainties about biotic, abiotic and human Scientific knowledge Extended knowledge components of ecosystems and their interactions and applying an integrated approach to fisheriesIncentives within ecologically meaningful Prescriptions boundaries. Top-down Interactive /Participatory Corporate Public / Transparent

Figure 1: Main changes involved in the extension from the conventional to the ecosystem approach to fisheries management 3

This why the FAO Guidelines on the EAF are a supplement to the guidelines on fisheries management.

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Operational Framework Turning the largely agreed concepts into practical implementation (or “operationalization”) requires a process to undertake, manage, and control the activities through which the adopted policy framework is implemented by the competent institutions at all the required levels. The operational framework is generally understood as the set of concepts, principles, policies, agreements, rules, institutions, processes, resources and other parameters under which implementation takes place 4 . Under that definition, the operational framework sets the way in which the action is conditioned and supported by financial, legal, regulatory, organizational, political, socioeconomic, corporate or commercial conditions, as well as by conflicting societal demands. It is also understood, more narrowly, as the set of resources, institutions, and processes mobilized for implementation. It is then distinguished from the normative framework with its agreed axioms, guiding principles and conceptual objectives, and the cognitive framework through which information is acquired, analyzed, and turned into knowledge and advice usable during the implementation, e.g., in the form of policy options or performance assessment. It is important to understand that, for an international initiative like EAF, and in order to meet, for instance, the WSSD goals for fisheries, nested operations are needed at global, regional, national, ecosystem, and local levels, with different roles for the institutions and the stakeholders at each

level.

There

are

therefore

not

one

but

many

levels

of

“operationalization” and different degrees of interaction between the different levels.

4

Modified from Minta and Settle in UNFAO (2003)

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The Ecosystem Approach to Fisheries

Normative

Policy; Objectives

Principles; Ethics; Conventions

Consensus

ies rit io Pr ions t Op

Ad vo ca c

Oversight

Cognitive

Government

; Guida nce

a Dat

y

Case studies

Theory

M

As oni se tor ss i n m g en t In fo rm at io n

Rationale, Knowledge, advice

Operational

Empiric al know ledge e c n ta sis as l a tion enta nic m e h l p c n; Im Te nsio Exte

Resources, Institutions, processes

UN

Support; Regulation. Oversight

Academia Civil Society

Agencies

Figure 2: Relations between the normative, cognitive and operational frameworks (Modified from Minta and Settle (2003)

The FAO guidelines indicate that the general process by which policies are turned into operational plans, activities, outputs, and outcomes (Figure 3) is adequate for any management approach and a fortiori for EAF. In this planning process, the axioms, general principles, and overarching goals contained in the adopted international instruments are turned into operational objectives for each country, area or ecosystem, and fishery concerned. Specific measures are then selected as part of the management plan to achieve these objectives. Indicators and reference values are adopted to monitor the management performance. Through feedback, the whole process is iterative and adaptable. A description of the EAF in these terms is sufficiently generic to be agreed upon by most, facilitating the international consensus, but certainly not detailed enough for practical implementation.

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A more detailed view of the implementation process, and more specifically the development of an EAF management plan (Figure 4, left side), indicates how the EAF management scheme is scoped, specific objectives are set, rules are formulated that will give the parameters for the action, the plan is implemented, rules are enforced, and indicators are monitored and reported. The “tactical” performance of such a system should be assessed regularly and frequently, e.g. every year. Its “strategic” performance needs to be assessed from time to time, e.g. every 5 years, together with the national planning calendar. Effective management of information and active participation are important components of the process. It is important to stress that this process must be undertaken, with minor modifications, at global and regional levels (e.g. in RFMOa) as well as at the level of a country, an EEZ, and any sub-national level from a state (in a federal system) to a municipality or coastal community. The template remains similar even though the actors may be different or with different roles. While this process is conceptually simple, our present experience indicates that the guidance can be applied erroneously, and that further efforts are needed to ensure that all stages are clearly understood and properly implemented within the means available.

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The Ecosystem Approach to Fisheries

Global instruments, principles and conceptual goals

Feedback

Priorities at national, local, inter-sectoral and ecosystem levels Operational objectives and constraints at social, ecological and economic levels

National policy development and planning

Feedback

National instruments, principles and conceptual goals

Global Policy Development

Management planning

Fisheries management and conservation measures

Indicators and reference values for management and conservation

Implementation and Monitoring

Figure 3: EAF Process, from policy development to implementation

In addition, one could argue that, despite its level of detail, the guidance provided in the FAO guidelines is still not “operational” enough to allow a fisheries department to undertake EAF because each of the left-hand boxes in the loop calls for additional information regarding actors, means and resources, methodology, processes, criteria, etc. The type of information needed to be fed into each stage of the process can be detailed with additional guidance as shown on the right-hand boxes on Figure 4. Even then, there would still be a need to drill down, e.g. on the way to undertake a baseline assessment (top right-hand box), to do an option analysis, to optimize a participatory process, to assess the risks related to some options when hard data is lacking, to develop and use indicators, and to select and manage a VMS system or to develop a national vessel register. The advice required by the various actors at each stage is different and may or may not be already available.

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Similarly, but at a higher level, conditions are needed to ensure that this overall process is sustainable, e.g. nesting it into a periodic national ecosystem management planning or natural resources management process with adequate funding, political and institutional support, communication resources, etc. The central point of this section is that no general guideline can ever be sufficiently operational. The lower one drills down in the implementation chain, however, the less likely it is that a one-size-fits-all template

would

be

useful

or

even

advisable.

The

process

of

“operationalization” on the ground will therefore involve a great deal of customization and the generic guidelines around which international consensus developed lose progressively operational relevance at lower

baseline assessment, boundary conditions, problem definition, Stakeholder analysis

Option analysis; cost-benefit; indicators & reference points Legislation; traditional rights ; management procedures; best practices

Formulating action & rules (Legislation; regulation; planning)

VMS; MCS; Observers

Implementing & enforcing 1 year

3-5 years

Indicators; ICT

Monitoring & reporting; Short-term assessments

Ex-post; Case studies; performance

Long-term policy review Source: modified from FAO Guidelines

Information management

Cascading systems of representation

Consultation with stakeholders

Setting objectives (Broad goals, operational objectives, indicators and performance measures)

Figure 4: Detailed management planning process. Modified from (FAO 2003)

180

outreach

Scoping (Fishery and area, stakeholders, issue identification)

Indicators, case studies, models, drivers, narratives, competencies, laws and regulations, best practices , discussion groups, portals, education and

implementation levels.

The Ecosystem Approach to Fisheries

However, EAF is not implemented in a vacuum and this both helps and complicates the implementation at the same time. First of all, EAF develops within and complements a complex conventional fishery management framework of uneven performance. In addition, the diversity of approaches adopted in the last few decades in support of sustainable development—such as the use of indicators, the precautionary approach, or the sustainable livelihood approach—applied mainly to small-scale coastal communities, the integrated coastal areas or watershed management which have a large amount of commonality, facilitating their joint or nested implementation. The coordination may, however, raise significant difficulties related to the confusion of mandates and jurisdictions, conflicting objectives, fights over resources and power, etc. The implementation of an EAF would benefit from being nested in an explicit nation-wide or EEZ-wide sustainable development strategy. This is the case in Australia with the Ecologically Sustainable Development (ESD) framework and the 2004 European Commission strategy on the protection and conservation of the marine environment (EUROPA). The FAO guidance stresses that the implementation of EAF involves

also,

and

perhaps

foremost,

the

improvement

of

the

implementation of conventional management with all the tools already at disposition such as: drastic capacity reduction and control; deterrent MCS; elimination of illegal fishing; adaptation of laws and regulations; more relevant

research;

integrated

information

management;

improved

participation, decentralization, devolution; co-management; fishing rights; elimination of perverse subsidies; ecolabelling; MPAs; reduction of bycatch and discards; and reduction of extinction risk. The task is complex and often frustrating but there are no shortcuts or simple panacea solutions, no silver bullet for over-fishing and environmental degradation.

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In addition, the implementation of EAF needs to be undertaken in a context of policy and management integration, nesting the management of all or the main economic sectors on an area-based management system itself embedded in (and supported by) coherent national policies regarding information, environment, and economic development. Attempting to implement an ecosystem approach only in fisheries is a recipe for failure. In the following sections, we will very briefly review the recent and ongoing efforts of FAO and of the regional fishery management organizations towards implementation of the EAF before examining some of the lessons already learned.

2. FAO Implementation Process

The FAO process towards a more ecologically conscious management of fisheries has historically deep roots as shown by its work on the fisheries environment, pollution, decadal cycles, by-catch, and discards (Garcia 1992). The adoption of the 1995 Code of Conduct for Responsible Fisheries 5 in the wake of UNCED was a milestone in that process. The modern process of formalisation of the ecosystem approach to fisheries started with the FAO-Iceland Conference on Responsible Fisheries in the Marine Ecosystem (Reykjavik, Iceland, 2001) and the formal adoption of the approach by COFI at the first session following the conference in 2003. The quasi totality of the work programme of the FAO Fisheries Department is dedicated to the active promotion and monitoring of responsible fisheries development and management. As a consequence, a very substantial part of 5

The concept of “responsibility” was highlighted to re-balance the usual focus on sovereign “rights” in UNCLOS, and in particular, responsibility and accountability in relation to the resources and the environment.

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its budget is used for activities that contribute to the establishment of a better balance between resource use and conservation (both in terms of biodiversity and ecosystems). A selection of the most relevant activities most directly contributing to the global implementation of the EAF, with a particular focus on the 2003-2006 budgetary period follows.

International Collaboration In addition to its active collaboration with other UN agencies under the aegis of the UN-Oceans coordination network 6 , FAO has developed collaboration with a number of environmental institutions: (a) CITES with the view to improve the protection of fishery species endangered by international trade; (b) WWF and IUCN in the GEF-funded Partnership for Responsible fisheries in South Saharan Africa and the World Bank-funded PROFISH project; (c) WWF in its Smart Gear competition programme; (e) CBD on the conservation of genetic resources as well biodiversity beyond national jurisdiction; (f) UNEP in areas such as collaboration between regional organizations dealing with environment and those dealing with fisheries as well as on the issue of marine debris; and (g) IOC-Unesco SCOR Programme for the development of scientifically sound ecosystem indicators for fisheries management ((Cury and Christensen 2005)). The CBD and RAMSAR have formally adopted the Code of Conduct as the instrument of choice to implement the relative conventions in the area of fisheries, simplifying substantially the implementation burden for the end user. In addition, FAO is involved in promoting the EAF concept in the regional fishery bodies established under the aegis of the Organization (a summary of the activities is given in section 3) as well as 6

http://www.oceansatlas.org/www.un-oceans.org/Index.htm

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fostering collaboration between all regional fishery bodies on the issue (FAO 2005a). Finally, FAO collaborates with UNEP in improving the cooperation between the UNEP Regional Seas Programme and the regional fishery management organizations (FAO-UNEP, 2001; FAO, 2005d).

Guidance and Policy Instruments FAO has continued the production of guiding documents and policy instruments aiming at strengthening the process of implementation by its members. Specific guidelines on EAF were produced in 2003, completing the guidance already available in technical guidelines in support of the CCRF. The latter concern inter alia the precautionary approach (1995), the integration of fisheries in coastal areas management (1996), responsible fishing operations (1996), responsible fisheries management (1997), indicators of sustainability (1999), and sharks management (2000). The strengthening process continued with the elaboration of guidelines on ecolabelling (2005) and on marine protected areas (under preparation). Other guiding documents were produced regarding: management measures and their application, a manager’s guidebook (2002); shared stocks management (2004); at-sea observer programmes (2003); and design and implementation of data collection systems for co-managed fisheries (2006). A number of International Plans of Action (IPOAs) have also been adopted for the control and reduction of fishing capacity (1999), to reduce the incidental catch of seabirds in longline fisheries (1999); for the conservation and management of sharks (1999), and to deter illegal fishing (2002). In addition, a Strategy to Improve Information on Status and

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Trends in Fisheries was adopted in 2003 as a foundation for improved resource monitoring and ex-post assessment of management performance.

Studies A number of studies aiming at facilitating the EAF implementation have been undertaken e.g. on co-management in freshwater fisheries (2003); trends in MCS (2003); resource trends in LMEs (2003); fishing capacity (2004, 2006); subsidies (2003, 2004); climate change and fisheries (2003); enhancing and restoring productivity of natural populations (2003); fisheries discards (2005); mortality in fish escaping trawl (2005); riskassessment (2004, 2005); data collection (2005); habitat rehabilitation (2005); impact of trawling and dredging on benthic habitats and communities (2005); responsible use of antibiotics in aquaculture (2005) the socio-economic and institutional implications of EAF (2006); and the “rent drain” due to over-fishing (2006, in coll. with the World Bank).

Methodology Development FAO has a long tradition and competence in the selection, compilation, development, adaptation, and diffusion of assessment methodology. In the context of EAF, efforts have been towards: measuring and assign fishing capacity (2003, 2004); comprehensive assessment of small-scale fisheries, including their socio-economic and environmental aspects (2005-ongoing); Bayesian methods to fishery resource assessments (2001); and methods to assess the rent dissipation in fisheries (ongoing, in collaboration with the World Bank).

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Expert Meetings and Conferences Some of the key technical

meetings of relevance organised in

2002-2006 covered the following areas: e.g. on inland fisheries and ecosystems (Windermere, 2002); catch certification (La Jolla, 2002); port state responsibility (Rome, 2002); shared stocks (Bergen, 2002); fisheries fiscal reforms (Rome, 2003); sea birds conservation, Valdivia, 2003); reduction of shrimp by-catch (Mombasa, 2003); interaction between sea turtles and fisheries (Rome, 2004); sea turtles conservation (Bangkok, 2005), use of subsidies (Rome, 2002, 2004, 2006), illegal fishing (2004), CITES listing of fishery species (Rome, 2004), control of fishing capacity (Rome, 2002; Dakar, 2004), ecolabelling (Rome, 2003, 2004, 2005, 2006), factors of unsustainability (Siem Reap, 2004), MCS and VMS (Bergen, 2004; Rome, 2006), IUU (Rome, 2002; Zimbabwe, 2003; Miami, 2003; Port of Spain, 2004; Penang, 2004; Rome, 2004; Fidji, 2005); interdisciplinary assessment of small-scale fisheries (Rome, 2005); tuna farming practices (Rome 2005); deep sea resources, governance and management (2003, 2005); environmental risk assessment (GESAMP, Rome, 2006); interaction between aquaculture and wild resources (2006); and reduction of environmental impact of shrimp trawling (2006). The 2001 Reykjavik Conference launched the EAF at the global level. Five years later, the international Conference on Implementing the Ecosystem Approach to Fisheries, organised on 26-28 September in Bergen by the Nordic Council of Ministers and the Governments of Iceland and Norway, with technical support of FAO and others, addressed progress made towards EAF implementation. In between, FAO actively advocated the approach at numerous conferences such as:

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x Global Ocean Forum meetings in Paris, France, in November 2003 and January 2006; (http://www.globaloceans.org); x Deepsea 2003 International Conference on Governance and Management of Deep-Sea Fisheries (Queenstown, New Zealand, 1– 5 December 2003) ((FAO 2005c))(Shotton 2005a; Shotton 2005b).

Field Programme Presently supported by 14 different sources of extra-budgetary funding, the FAO FishCode umbrella has a key role in coordinating the FAO field programme in support of the implementation of the CCRF, particularly in the developing world, and many of its components have a direct bearing on EAF implementation. Its objectives include the promotion of responsible development, management, and conservation practices, including improved institutional and legal arrangements. The areas presently covered include: responsible inland and marine fisheries management; ecosystem-based and integrated fisheries management; the fight against illegal fishing; curbing of fishing capacity; sharks management; reduction of sea birds accidental kill; support to Small Islands Developing States (SIDS); and improvement of information on fisheries status and trends. Details about the various projects can be found on the FAO website 7 . FAO executes or collaborates in a number of relevant global projects among which: x

Shrimp fisheries by-catch reduction: funded by the Global Environment Facility (GEF), the project aims at the Reduction of

7

http://www.fao.org/figis/servlet/static?xml=fishcode_prog.xml&dom=org.

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Environmental Impact from Tropical Shrimp Trawling, through the Introduction of By-catch Reduction Technologies and Change of Management. The project involves the collaboration of the Southeast Asian Fisheries Development Center (SEAFDEC) and intervened in 12 countries of Africa, Latin America and Asia 8 . x

PROFISH: Launched in 2005 at the Fish for All Summit organised by WorldFish (ICLARM) in collaboration with FAO, in Abuja, Nigeria, the PROFISH project intends to catalytically promote effective responsible fisheries development and management strategies at national, regional, and global levels. Led by the World Bank, the project is executed in collaboration with FAO and WWF.

x

Fridtjof Nansen Programme: FAO and Norway have collaborated for 30 years in the development of national capacity in fisheries assessment and management (including environmental aspects) all over the world through the use of the well known “Nansen programme” using the Research Vessel Dr. Fritdjoff Nansen. Cofunded by Norway and some other partners, including LME projects, and possibly GEF, a new phase started in 2006 focussed on “Strengthening the Knowledge Base for Implementing the Ecosystem Approach to Marine Fisheries in Developing Countries. This phase focuses on sub-Saharan Africa with collaboration and spill-over activities in Asia and Latin America. Activities undertaken relate to data collection, ecosystem assessment, scientific advice, policy development, and communication. The project collaborated actively with all the GEF-LME projects in operation around sub-Saharan Africa.

8

http://www.fao.org/figis/servlet/static?dom=org&xml=gef_shrimp.xml&xp_lang =en

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FAO is also active at regional level through the following projects: x LME projects co-funded by GEF, and in which FAO leads or collaborates in the execution: Canary current region in West Africa (CCLME); Benguela current region of Southeast Africa (BCLME); the Indian ocean coast of Southwest Africa (SWIOC); Bay of Bengal (BOBLME); and the Mediterranean LME in which FAO is producing the technical documents and guidelines necessary for the development of the Strategic Action Programme (SAP) related to the conservation and management of vulnerable or endangered species and related fisheries (Tudela, 2006). x Mediterranean projects: In addition to the Mediterranean LME mentioned above, a number of important sub-regional projects support the work of the General Fisheries Commission for the Mediterranean towards more responsible fisheries: ADRIAMED, COPEMED, MEDSUBMED, EASTMED amd MEDFISYS. They deal, inter alia, with capacity-building, fishery statistics, resources assessment,

environmental

impacts,

responsible

aquaculture

development, including interactions between aquaculture and capture fisheries. Particular efforts are made towards the definition of ecologically sound management units and the use of sustainability and ecosystem indicators. x Strategic Partnership for Sustainable Fisheries Investment in the Large Marine Ecosystem of Sub-Saharan Africa. This very large 10-year project developed by the World Bank and GEF will help generate the funds needed to help countries bordering the Large Marine Ecosystems in the region meet the WSSD fisheries and poverty reduction targets. GEF will create a Sustainable

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Fisheries Investment Fund of US$60 million and is expected to raise co-funding support to the level of US$240 million. x The Sustainable Fisheries Livelihoods Programme (SFLP) is a large partnership between FAO, the United Kingdom Department for International Development of the United Kingdom, and 25 participating countries in West Africa. The SFLP (1999-2006) aims at reducing poverty in coastal and riparian communities by improving the condition of people depending on aquatic resources for their livelihood. It intends inter alia, to enhance and rehabilitate the aquatic ecosystems assets and services available to fisherfolks. The participative approach to decision-making (including comanagement)

it

promotes

is

an

integral

part

of

EAF

(http://www.sflp.org/). Information Systems and Networks FAO is particularly active in the development of information systems—the collection, elaboration and diffusion of information are the most important objectives mentioned in its constitution. Projects include: x FIGIS: financed by Japan and France, FIGIS developed a Fisheries Global Information System, a dynamic information management system powering the FAO Fisheries Department website that it will soon

replace

entirely

(see

http://www.fao.org/figis/servlet/static?dom=root&xml=index.xml). x FIRMS: Developed at the FAO initiative, and launched in 2004 with the signature of the first five regional fishery bodies partners, the global Fisheries Resources Monitoring System (FIRMS),

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powered by FIGIS, underpins a formal partnership of international organizations, regional fishery bodies, and national scientific institutes which have agreed to collaborate in sharing information, common reporting formats and delivery of high-quality information on the state of marine resources and on their management. Presently involving 13 regional organizations, the system was inaugurated and opened to the public during the UN Fish Stock Agreement Review Conference (New York, 22-26 May 2006). The system is accessible at: http://firms.fao.org. x FishBase: Developed originally by ICLARM in collaboration with FAO, FishBase is now maintained and further developed by its founders collaborating with a number of museums and universities in a Consortium formally established for that purpose. Fishbase is the biggest and most used online database on fish species information. (see: http://www.fishbase.org)

The activities listed above are only a part of the FAO activities dedicated to the more responsible use of aquatic biodiversity and ecosystems. They refer practically exclusively to capture fisheries, with focus on marine fisheries, where the priority demand of FAO members lies. FAO is also involved in developing a consensus perspective for an Ecosystem Approach to Aquaculture (EAA) as a major contribution to aquaculture sustainability which implies a better understanding of the socioeconomic and ecological implications of the sector. The EAA should improve aquaculture sustainability through facilitating nutrient cycling while minimizing negative impacts at different intensity levels, for example, through polyculture approaches (eg. fish and mussels, fish and seaweeds),

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and also should allow a broader use of ecosystems through enhancing or coupling with other activities such as fisheries (e.g. aquaculture based fisheries) and agriculture (e.g. rice fish farming). In terms of financial and human resources, a close analysis indicates that, in practice, 40% of the core FAO resources dedicated to work on fisheries are directly aimed at tackling specific ecosystem considerations while the remaining 60%, essentially allocated to improving conventional management, also contribute to the implementation of EAF, albeit in an indirect way. A similar analysis of the ongoing extra-budgetary activities of the Department, which represent a similar amount of resources directly applied in the field, leads to similar conclusions.

3. Implementation by Regional Fishery Bodies

The regional level has been recognized long ago, including by UNCED (1992), as the key operational level for implementation of international instruments. Dealing with transboundary, shared, highly migratory or high seas resources, and more generally with transboundary ecosystems,

regional

organizations,

particularly

regional

fishery

management organisations (RFMOs), have a direct role to play in EAF. These organisations, whether or not in charge of management, also have a major role to play in translating and diffusing the concepts agreed at global level to the national and local levels. They serve as areas for capacitybuilding (through information exchange, on-the-job training, establishment of regional norms, agreement and transfer of methodology, etc.) and consensus-building. Under ongoing societal pressure and because of the growing evidence of the problems raised by single stock management, regional

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fishery management organisations (RFMOs) have substantially broadened the ecosystem considerations bearing on their work and decisions, in an attempt to better balance the long-term ecological and socio-economic objectives of management. However, Vasconcellos (2004) notes that “most RFBs work with limited knowledge on the status of resources, the ecosystem interaction of fisheries and the fishing capacity of the fleet authorized to operate in the respective Convention areas”. Following the pioneering orientation of CCAMLR, many RFMOS have progressively modified, to a variable extent, the institutional and scientific context in which they operate (FAO 2005a; Meltzer 1994). The most frequently identified ecosystemrelated areas of concern are: the state of resources (overfishing and overcapacity); indicators frameworks and precautionary reference values; dependent and associated species, emblematic and endangered species such as sea birds, turtles and sharks; discarding practices, particularly but not only in relation to shark finning; critical and vulnerable habitats, particularly tropical and cold corals, sea grass and algal beds; and illegal fishing (IUU). FAO is involved in promoting the EAF concept in a number of regional fishery bodies established under the aegis of the Organization such as in: x

COPESCAL: The Latin American Fishery Commission which recommended in 2005 the strengthening of the local institutions and communities for the implementation of EAF;

x

GFCM: the General Fishery Commission for the Mediterranean which has a significant programme on the subject and adopted a binding recommendation in 2005, banning all trawling activities from the entire Mediterranean region, below 1000 meter depth,

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creating, de facto, the largest MPA protected from fisheries. It has also addressed EAF directly through its MedSudMed regional project (APS 2003); x

SWIOFC: The Southwest Indian Ocean Fishery Commission has workshops on reducing by-catch in shrimp fisheries (Maputo, 2005), implementation of EAF (November 2005) and assessment of sea-turtle mortality due to fisheries (Zanzibar, 2006);

x

South Pacific: Although there is no FAO RFB in that area, FAO participated to a national workshop on EAF (interactions between fisheries and marine mammals) in Port-Moresby (2006). The SPC/FAO/WPRFMC Regional Workshop on Fisheries Legislation and Community-based Fisheries Management (Honolulu, 2005) held a session on EAF. In general, FAO supports community-based management in that area, an important component of EAF;

x

WECAFC: In the Western Central American Fishery Commission area, Colombia, Cuba, Mexico, Nicaragua, and Trinidad and Tobago participated in activities involving the reduction of by-catch in shrimp and ground fish fisheries. In addition, most Lesser Antilles member countries of WECAFC are participating in the Lesser Antilles Pelagic Ecosystem Project (LAPE) funded by Japan. At the national level, many WECAFC member countries have adopted EAF strategies, introducing Marine Protected Areas (MPAs), fishing gear restrictions, and/or non-target species exclusion devices;

x

Southeast Asia: The Asia-Pacific Fisheries Commission (APFIC) has convened two regional workshops, one on low trash fish issues in the Asia-Pacific region and the other on the mainstreaming of co-

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management and participation of resource users. The same issues will be addressed also by the APFIC Regional Consultative Forum in August 2006 and subsequently by the Commission itself. A crude summary of the EAF-related activity of all regional fishery management organisations, drawing extensively from the information compiled by Meltzer (op. cit.) is given in Annex 1. Practically all of them have inserted a debate on the relevance of EAF on their agendas. Most of them have established programmes to collect more information on the exploited ecosystem and special Working Groups and committees to provide advice on EAF. Many of them have adopted non-binding measures and instruments (e.g. the relevant FAO IPOAs) and are looking at the possibility for using ecosystem modelling in addition to conventional population models. Vasconcellos (2004) concludes that although some regulatory measures have been taken to prevent or eliminate some of the undesirable effects of fisheries, overall there are some important management gaps in many areas, such as the proper definition of limit reference points and associated management procedures, the establishment of plans to manage fishing capacity and the consideration of wider ecosystem goals in the management plans. Very few of the RFMOs have adopted binding regulations (e.g. bycatch quotas, exclusion areas, closed seasons, specific gear regulations such as the mandatory use of by-catch excluder devices, use of grids, birdscaring devices (streamers), circle hooks, on-board observers, etc.). It is clear that, at a global scale, the EAF implementation process is only beginning, and beyond the agreed political rhetoric, practical steps are slow to emerge. This is understandable considering: (i) the dearth of data available on the impacts, their magnitude and degree of reversibility; and (ii) the uncertainty about the socially acceptable level of impact and future

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costs of compliance with them. While compliance has been apparently high in CCAMLR and IATTC, yielding substantial reductions in the mortality of sea birds and dolphins respectively, it is too early yet to extrapolate from the limited experience available. It should be noted that, in most cases, the actions indicated in Annex 1 are compatible with an EAF approach to fisheries but, if applied in a partial and piece-meal manner, they may never yield the improvements expected from the approach.

4. Lessons Learned: Key Ecosystem-related Issues

Because the EAF is an integrative framework, the range of issues raised as requiring it is extremely broad, spanning conventional fishery management issues as well as more specific environmental ones. The issues include: open access, overcapacity and over-fishing; subsidies; weakness of port and flag states controls; catch and trade of juvenile fish; by-catch e.g. of turtles, birds and sharks (including shark finning); importance and impacts of discarding practices; illegal trawling in inshore areas and resulting conflicts and habitat damage; destructive fishing practices; demographic growth and raising marker demand; coastal erosion and siltation; dumping of chemical and atomic waste; contamination, eutrophication and harmful algal blooms; illegal fishing; endangered species (e.g. sea birds, mammals, sea horses; cold corals); critical habitats (e.g. cold and tropical coral reefs; sea grass and algal beds); and illiteracy, poverty and HIV-AIDS which are particularly important in small-scale fisheries in the developing world.

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Selected Implementation Challenges Despite the fact that EAF has formally been on the world’s agenda for only 4-5 years, the challenges faced during implementation are known because they are the same as those already met when implementing strategies for integrated natural resources management (of watersheds or coastal areas) or ecologically sustainable development (ESD). Not surprisingly, perhaps, most of the challenges are of an institutional nature and include the following: x

Preparedness: identification of likely obstacles early enough and preparing for them;

x

Boundaries: definition and agreement on meaningful boundaries compatible both with the ecosystem functioning and the social institutions

x

Capacity: early development of an implementation capacity (skills, tools, institutions, resources, legislative framework; research capacity) including the capacity to adapt to change (flexibility), at the appropriate level of decentralization;

x

New policies: re-orienting present policies, revisiting priorities, reranking objectives, redesigning strategies and action plans as well as on allocations of wealth (resources, costs and revenues);

x

Mainstreaming: institutionalization of the implementation process, nesting it in adequate national policy and regulatory frameworks and reducing bureaucratic inertia;

x

Legislation and regulations: simplification of the regulatory frameworks which have accumulated layers of complexity (and often contradiction) over the years;

x

Integration: reduction of policy, sectoral, institutional and scientific fragmentation;

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x

Participation: ensuring adequate participation at an affordable interaction cost;

x

Scientific support: improving data collection; integrating the best natural and social science available, collecting and validating informal

knowledge;

improving

ecosystem

modelling

and

developing systems of indicators. x

Commitment: improving governments’ willingness to delegate enough powers, e.g. to decentralized or regional fishery management institutions; and significantly improving flag and port states control; The shopping list above is by no means comprehensive and could

be substantially lengthened or/and broken down in more detail. Just as an example, a few issues will be elaborated on below: (i) dealing with risk; (ii) using indicators; and (iii) undertaking the necessary integrated assessments.

Dealing with Risk A central element of the practical implementation of EAF that is rapidly taking shape is the analysis of the risk to the resources and the people derived from the uncertainties in knowledge and vagaries of implementation. The precautionary approach is an integral part of the EAF and specific guidance is also available in the form of specific guidelines but its implementation is not easy. Risk assessment, analysis, communication, and management (Figure 5) are therefore central to the EAF and have started to be tested in few areas (e.g. Australia, South Africa). The assessment can be quantitative or qualitative depending on the data available. One of the outcomes of the risk analysis process is the identification of the various sources of risk, their weighting and priority ranking, the elaboration of transparent reports on such ranking and, for high

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priority issues, the adoption of specific objectives, indicators, and reference values together with processes for monitoring and formal reporting.

Monitoring Identification Control

Characterization

Measures Decision

Prediction

Consultation

Options

Figure 5: The risk analysis, communication and management process Problems with EAF Indicators The use of indicators and reference values in fisheries has been advocated for many years, either for the strategic purpose of monitoring sustainability (Garcia 1997); (FAO 1999); (Garcia and Staples 2000) or for the tactical purpose of management, in the context of the precautionary approach (Garcia 1994; (Garcia 2000)) and the ecosystem approach (Garcia; Zerbi; Alliaume; DoChi, and Lasserre 2003); (FAO 2003). The guidelines available contain substantial information on ecosystem indicators but additional guidance is still needed and efforts are continuing to identify the most relevant and practical ones (Cury and Christensen 2005). The indicators life cycle evolves through various phases, e.g.: 1. Identification of critical issues; 2. Identification of related objectives; 3. Identification of candidate indicators and possible reference values;

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4. Analysis of practical elaboration and cost implications of their institutional use; 5. Formal adoption of a selected, reduced, set of indicators; 6. Institutionalization, budgeting; 7. Implementation; and 8. Ex-post evaluation resulting in strengthening or abandonment of the indicator, with return to step 1. This cycle occurs at a global level, e.g. within the CSD implementation process, as well as regional level, e.g. within a regional fishery management organization, and at national or local level, e.g. in the fisheries administration. Some of the steps, such as steps 1, 2, 5, and 6 are essentially political. Others are scientific and technical. Except in very few countries, the process is still in most countries somewhere between steps 1 and 4. Following the UNCED, Millennium, and WSSD summits, various loosely connected processes are ongoing for identification and adoption of ecosystem-related indicators at a global level but the practical implementation, particularly at regional and national levels, is still extremely limited. Some of the key difficulties encountered relate to: x

Identifying and selecting the most effective ecosystem indicators;

x

Selecting the conventional population (stock) indicators of relevance to EAF;

x

Separating the effect of climate, pollution, and fishing on the ecosystem;

x

Obtaining indicator values for pre-exploitation states (as baselines);

x

Agreeing on the ranking of objectives and risks (e.g. for reference values);

x

Developing a culture of risk analysis and management;

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x

Agreeing on societally acceptable impact levels and related value judgments;

x

Agreeing on the calculation of indicators and interpretation of their changes;

x

Assessing uncertainty in their values (signal/noise ratio);

x

Developing decision rules based on historical observations and models;

x

Facing the recurrent costs of long-term monitoring;

x

Allocating the burden of proof in a safe and effective manner;

x

Developing approaches and packages for data-poor situations; and

x

“High-jacking” of indicators as instruments of political or scientific power. Most of the debate is on the scientific difficulties inherent to the

indicators and reference values that could be used in an ecosystem context. The social and political roles of indicators, and the social process through which indicators change status, from that of scientific constructions to institutionalised instruments of monitoring, communication, and policy are not yet addressed to the extent deserved. If the situation is not changed rapidly, these areas will only emerge as a priority when, in a decade or so, it will be realized that implementation is not progressing as expected.

New Science and Decision-making Processes The role of science in fisheries management has always been fundamentally important even though the advice appears to have been sometimes incomplete or misleading and often disregarded in practice by decision-makers and industry. The broader systemic scientific, social, economic, institutional and societal implications of EAF are accelerating the recognition of the fishery systems complexity and the implications in

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terms of growing uncertainty, loss of predictability, controllability and reversibility. In this context, the shortcomings of "normal”, reductionist, fishery science and of the conventional, top down, decision-making process are even more problematic (Funtowicz and Ravetz, 1995; Garcia and Charles, 2006). Emerging in the context of complex issues such as sustainability, global change, and environmental impact on human health, an extended scientific paradigm has been proposed to deal with such situations under the name of sustainability science (Holling 1993; Holling 1994), mode-2 science ((Nowotny; Scott, and Gibbons 2001) or post-normal science ((Funtowicz S.O. and Ravetz J. 1995). While there may be some ideological or objective differences between these proposals, they all refer to the science needed when decisions must be made on the basis of uncertain or incomplete information, about issues and problems which may have many causes and more than one plausible solution or no obvious solution at all, with significantly different implications for resources and people. These circumstances emerge clearly in the systemic context of EAF. In such a context, the type of science advocated is highly participative, is precautionary, taps the full range of knowledge available (in all relevant disciplines and with the people concerned), and explicitly accounts for human perceptions and values. The form of science needed to inform decision-making in EAF should promote a much more proactive integration between: (i) science and policy in decision-making; (ii) policy and societal expectations; (ii) scientific disciplines, through inter- or trans-disciplinary endeavours; (iii) formal scientific and other forms of knowledge; (iv) quantitative and qualitative

analyses;

(v)

analytical

(modelling)

and

discursive

(participatory) processes; and (vi) scientific facts, values, and perceptions.

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Frameworks for Integrated Assessment (IA) and Participatory Integrated Assessment (PIA) (Toth 2003) have emerged progressively from research on global climate change, acid rain, land and water use, urban planning, and sustainable development (Rotmans and Van Asselt 2001). It is defined as a structured process of dealing with complex issues, using knowledge from various scientific disciplines and/or stakeholders, such that integrated insights are made available to decision-makers (Rotmans, 1998). Integrated Assessment has evolved into an umbrella concept for multidisciplinary analysis of environmental problems in support of policymaking (Toth 2003) 9 . Combining analytical and participatory methods, it uses an inter-disciplinary, inclusive, iterative, and continuing process to combine scientific (“hard”) and non-scientific (“soft”) knowledge, explicitly accounting for uncertainty, societal values, perceptions, and preferences. Developed in support of strategic policy and decision-making in relation to a highly uncertain context with high risks to society, it seems particularly adapted for EAF, long-term fisheries development planning (e.g. of complex small-scale fisheries or of the integration of fisheries in coastal zone management) as well as more tactical EAF management. Integrated Assessment stricto sensu does not seem to have been referred to yet in fishery science literature (except the passing reference to fisheries by (Pahl-Wostl 2002). However, the use of complex, multi-scale, cross-sectoral simulation models and participative processes have emerged also in fisheries (Fulton; Sainsbury; McDonald; Gray; Little, and Hatfield in Preparation (2006); Le Fur (2001)) indicating a strong convergence between modern fishery science and IA 10 . The full development of EAF will require 9

The International Association for Integrated Assessment was established in 2000 (Toth, op. cit) and has its journal, Integrated Assessment. 10 In fisheries, this evolution has taken place, however, without the ideological reference to post-modernism used by Funtowicz, Ravetz and their followers.

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a generalization of the integrated assessment approach, combined with the use of indicators. It also requires a much more important involvement of social sciences and more effectively participative processes of research and decision-making.

Conditions for EAF Sustainability The ongoing initial implementation of EAF in a few leading countries as well as the experience already available implementing related integrated management approaches give useful indications as to the operational conditions needed, at national level, for initial success and longterm sustainability of the approach. These include: x

Trained administration with sufficient and sustainable resources;

x

Effective

community/stakeholder

participation

and

industry

support; x

Effective support from leaders and institutions (national to local);

x

Dedicated and sufficient research;

x

Enabling environment for sustainable/responsible investments;

x

Alternative livelihoods for fishers in excess of the system capacity;

x

Economic and social incentives;

x

Effective MCS and deterrent law enforcement;

x

Policy and legal reforms (firm legal grounds and clear jurisdictions);

x

Nesting of sectoral EA approaches in Nation-wide policy; and

x

Minimum national environmental standards;

x

Adaptive planning process and agreed EAF management plans;

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x

Regular performance evaluation: auto-evaluation and external, independent evaluation; and

x

Early production of positive outcomes (success stories). The ongoing implementation tells us also that eliminating the well

known causes of fisheries unsustainability is the utmost and most troublesome condition for a successful implementation of EAF. This includes: x

Reducing excess fishing capacity and controlling its further growth;

x

Eliminating perverse subsidies, favoring those truly in support of EAF;

x

Introducing fishing rights at individual or communal level as appropriate;

x

Improving selectivity and reducing discards;

x

Identifying and protecting critical habitats from degradation;

x

Improving MCS substantially; and

x

Deterring the abuse of “freedom” in the high seas; A final condition of success is that, in order to sustain a costly effort

for decades, fishers will need to be convinced that these efforts are not annihilated by irresponsible behaviour from other sectors through general pollution and environmental degradation. Equity and justice, as well as institutional and legal mechanisms to ensure them will be essential.

5. Discussion and Conclusions

Any quest for sustainability will be a collective, uncertain and adaptive endeavor... The pathway of the transition...cannot be chartered fully in advance. ((National Research Council (NRC) 1999)

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The purpose of EAF fits within the more general purpose of the ecosystem approach to oceans development and to sustainable development more generally. If effectively implemented, EAF will represent an exemplary sectoral response to the cross-sectoral and societal problem of the sustainable use of aquatic systems living resources. Adopted in the 2001 Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem, it has very deep roots going back to the Natural Resources Management (NRM) paradigm developed during the first half of the 20th century, the 1972 Stockholm Conference on the Human Environment, the 1982 Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), the Bruntland report, Our Common Future ((WCED 1987), the 1992 UNCED Agenda 21 and the CBD and the 1995 Code of Conduct for Responsible Fisheries. It reflects certainly a renewed high level political commitment to deal with sustainability, a challenge which is as old as humankind and for which we did much too little, much too late. A successful EAF implementation process requires much more concrete political and financial commitments than presently demonstrated and an evolution of fishery science along an already identified pathway, from conventional management science to sustainability science and action research. It requires action from the highest to the lowest levels of governance. At the higher levels, action is needed, e.g., to adopt international and regional conventions and turn them into national policy and regulatory frameworks within which the ecosystem approach to fisheries and to other sectors can be effectively nested. At the lower levels, down to communities, institutions need to be adapted and their capacity developed. At both levels and through highly participative processes, an evolved science is needed to provide strategic and tactical support to adaptive decision-making processes, improving the understanding of the

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ecosystem functioning and people’s expectations, and informing the difficult decisions needed for the equitable allocation of wealth and costs. An extensive amount of guidance is already available, on the use of indicators, the precautionary and ecosystem approaches, ecolabelling, responsible fishing practices, etc. Such guidance is presently being applied by FAO in its fora and in the field and by a number of RFMOs and countries. Globally measured, progress is still very uneven and often limited. On the one hand, this is not surprising if we consider that, for fisheries, the approach was only formally adopted in 2003 by the FAO Committee. On the other hand, this is surprising if we realize that, at a societal level, the environmental and sustainability issues were identified more than three decades ago and that successive summits of heads of states have generated more solemn declarations of intentions than effective global improvements. The Agenda 21 aimed at fostering implementation. The challenge is still with us. It should be stressed that that the generic guidance available must still be complemented by a substantial amount of additional methodological documentation as well as customization of strategies and plans, tailoring general guidance to particular fisheries, areas, and cultural or historical backgrounds. Unfortunately, while there are generally applicable principles and rules, there is no unique one-size-fits-all implementation recipe. Fortunately EAF is not implemented in a vacuum and the elements put in place at national or regional level during the last 3 decades to deal, inter alia, with sustainable development; sustainable livelihoods, integrated coastal area or watershed management, etc. will be useful in implementing EAF. Conversely, the ecosystem approach is also invoked both as a conceptual framework and as an operational instrument for achieving

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biodiversity conservation and sustainable use, sustainable development (e.g. by the CBD and RAMSAR Conventions) as well as integrated management of coastal areas (Yañez-Arancibia and Day 2004), EEZs, Large Marine Ecosystems or oceans. It is systematically invoked as the remedy to the general environmental management failure across all areas and sectors. Despite small (perhaps sometimes inflated) ideological nuances, there is a general common understanding among scientists as to what is meant by an ecosystem approach and, above all, what is expected out of its systematic application. The vision reflects the hope of significantly improved human and environmental ethics and well-being. Sustainability is, however, neither static nor granted by any set of measures in a constantly changing environmental, social, and economic context. Achieving it requires a dynamic process of perpetual adaptive adjustment and the EAF should be the adaptive framework through which this could be best obtained. The implementation process has started. As usual the process is intense in a few countries, developing but still weak in a large number of them and non-existent in a few of them. The lack of capacity is the usual argument used for sluggish implementation and that is often but not necessarily always true, particularly in developed countries. More guidance is needed at the lower levels of implementation and more institutional collaboration would help avoiding duplication and confusion. The lessons learned, in implementing EAF as well as its “ancestor” approaches are already useful in pointing to main implementation challenges. While the most serious problems are of an institutional nature, this document refers specifically to the issues of risk, use of indicators, the nature and processes of the science needed and of the decision processes, and the conditions required for the sustainability of the approach itself.

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In a nutshell, the EAF is complex but not necessarily always complicated. It is logically as complex as the human and ecological systems to which it is applied. It is holistic in its principles and intent, but necessarily (less but still) reductionist in its applications. It is probably difficult to comprehend entirely but a number of measures can readily be applied, because the likely direction of the impact is known as desirable even though the details of such impact (e.g. its duration, distributive properties, etc.) may only be partially or imperfectly known. Because of the complexity, the likelihood that errors will be made should be assessed and agreed. Effective precautionary, adaptive, and participatory processes will reduce the environmental, social, or economic risk resulting from eventual mistakes. Three key ingredients are absolutely needed: (i) real political commitment; (ii) societal agreement on acceptable levels of impact; and (iii) a strong willingness to learn, from best practices, success stories and painful failures... and to adapt.

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Reference List APS. 2003. Proceedings APS Seminar 2003. Ecosystem Based Fisheries Management in the Mediterranean. Malta: APS Bank. FAO: 106 p. Butterworth, D. S.; Cochrane, K. L., and De Oliveira, J. A. A. 1997. ‘Management procedures: a better way to manage fisheries? The South African Experience’, in: Pikitch, L. D. D. Huppert and M. Sissenwine eds. Global Trends: Fisheries Management: 83-90. Seattle, Washington, U.S.A. Bethesda, Maryland: American Fisheries Society: 328 p. Cury, P. M. and Christensen, V. 2005. ‘Quantitative Ecosystem Indicators for Fisheries Management’, ICES Journal of Marine Science. 62:307310. FAO. 1995. Guidelines for Responsible Management of Fisheries. Report of the Expert Consultation on Guidelines for Responsible Fisheries Management, Wellington, New Zealand, 23-27 January 1995. FAO Fisheries Report; 519 FAO. 1995a. Guidelines for Responsible Management of Fisheries. FAO Fisheries Report; 519. FAO. 1995b. Precautionary Approach to Fisheries. Part 1: guidelines on the precautionary approach to capture fisheries and species introductions. Roma: FAO; FAO Fisheries Technical Paper. 350/1 FAO. 1996. Precautionary Approach to Fisheries. Part 2: Scientific Papers. Prepared for the Technical Consultation on the Precautionary Approach to Capture Fisheries, Lysekil, Sweden, 6-13 June 1995. FAO Fisheries Technical Paper. 350, Part 2: 210 p. FAO. 1999. Indicators for Sustainable Development of Marine Capture Fisheries. FAO Technical Guidelines for Responsible Fisheries, 8:68. FAO. 2002. Report of the Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem, Reykjavik, Iceland, 1-4 October 2001. FAO Fisheries Report, 658: 128 p. FAO. 2003. Fisheries Management. 2. The Ecosystem Approach to Fisheries. Rome, Italy: Food and Agriculture Organization of the United Nations. FAO Technical Guidelines for Responsible Fisheries; 4(Suppl.2): 112 p.

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FAO. 2005a. Compilation of Reports by Regional Fishery Bodies Secretariats on the Initiatives Taken by their Bodies to Incorporate Ecosystem Consideration into Fisheries Management. Fourth Meeting of Regional Fishery Bodies; Rome, Italy. Rome: FAO: 8 p. FAO. 2005b. Guidelines for the Ecolabelling of Fish and Fishery Products from Marine Capture Fisheries (Trilingual, E, S, F). Rome: FAO. FAO. 2005c. Report of Deep-Sea 2003: an International Conference on Governance and Management of Deep-sea Fisheries; Queenstown, New Zealand. FAO Fisheries Report, 772: 84 p. FAO. 2005d. Ecosystem Based Management of Fisheries – Strengthening Cooperation between UNEP and FAO, the Regional Seas Programme and the Regional Fishery Bodies. Fourth Meeting of Regional Fishery Bodies. FAO, Rome. Italy: 14-15 march 2005. RFB/IV/2005/8: 19 p. FAO-UNEP. 2001. Ecosystem-based Management of Fisheries. Opportunities and Challenges for Coordination between Marine Regional Fishery Bodies and Regional Seas Conventions. FAO-UNEP: 47 p. Fulton, E. A.; Sainsbury, K.; McDonald, A. D.; Gray, R.; Little, L. R., and Hatfield, B. (2006). Ecosystem Modelling and Successful Multi-sector Management in the Northwest Shelf of Australia. In Preparation. Funtowicz, S. 2006. Post-normal Science. Environmental Policy Under Conditions of Complexity. Ispra, Italy: EC-JRC/ISIS; 8 p. Funtowicz S.O. and Ravetz J. 1995. Risk Management, Uncertainty and Post-normal science. Reinertsen, H. and Haaland, H., Eds. Sustainable Fish Farming. Proceedings of the first international symposium on sustainable fish farming, Oslo, Norway, 28-31 August 1994. Rotterdam / Brookfield: A.A Balkema: 261-270. Garcia, S. M. 1994. ‘The Precautionary Principle: Its Implications in Capture Fisheries Management’, Ocean & Coastal Management 22: 99-125. Garcia, S.M. 1996. ‘The Precautionary Approach to Fisheries and Its Implications for Fishery Research, Technology and Management: An Updated Review’, FAO Fisheries Technical Paper 350/2: 1-75. Garcia, S.M. 1997. ‘Indicators for sustainable development of fisheries’, in: Proceedings of the Workshop on Land Quality Indicators and Their Use in Sustainable Agriculture and Rural Development; FAO, Rome. Rome: FAO: 131-162.

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Garcia, S. M. 2000. The precautionary approach to fisheries: progress review and main issues: 1995-2000. Current Maritime Issues and the Food and Agricultural Organization of the United Nations: Martinus Nijhoff Publ.: 479-560. Garcia, S. M. and Cochrane, K. 2005. ‘Ecosystem Approach to Fisheries: a Review of Implementation Guidelines’, ICES Journal of Marine Science. 62(3):311-318. Garcia, S. M. and Staples, D. 2000. ‘Sustainability Reference Systems and Indicators for Responsible Marine Capture Fisheries: a Review of Concepts and Elements for a Set of Guidelines’, Marine and Freshwater Research. 51(5):385-426. Garcia, Serge M.; Zerbi, A.; Alliaume, C.; DoChi, T., and Lasserre, G. (2003). ‘The Ecosystem Approach to Fisheries. Issues, Terminology, Principles, Institutional Foundations, Implementation and Outlook’, FAO Fisheries Technical Paper, 443 : 71 p. Garcia, S.M. and Charles, A. 2006. Fishery Systems and Linkages: From Clockwork to Compass. Paper presented at the ICES International Symposium on Fisheries Management Strategies, Galway, Ireland, 2730 June 2006. Holling, C. S. 1993. ‘Investing in Research for Sustainability’, Ecological Applications, 3(4): 552-555. Holling, C. S. 1994. ‘New Science and New Investments for a Sustainable Biosphere, in: Jansson, A.; Hammer, M.; Folke, C., and Costanza, R. Investing in natural capital. The Ecological Economics Approach to Sustainability. Island Press, Washington DC, Covelo, CA: 57-73 Le Fur, J. 2001. Apport de l'approche "système complexe" dans la conduite des exploitations halieutiques: recherche sur le développement durable du secteur des pêches en république de Guinée. 5eme forum halieutique. Halieutique: complexité et décision; Lorient, France. Ifremer. Actes de colloques. Recueil de résumés, 33: 26 p. Meltzer, E. 1994. ‘Global Overview of Straddling and Highly Migratory Fish Stocks: the Non Sustainable Nature of High Seas Fisheries’, Ocean Development and International Law. 25: 225-334. National Research Council (NRC). 1999. Our Common Journey: a Transition Towards Sustainability. Washington, DC: National Academies Press: 384 p.

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Nowotny, W.; Scott, P., and Gibbons, M. 2001. Re-thinking Science. Knowledge and the Public in an Age of Uncertainty. Polity Press and Blackwell Pahl-Wostl, C. 2002. ‘Agent-based Simulation in Integrated Assessment and Resources Management’, In: Rizzoli, A. E. and Jakeman, A. J., (Eds). Integrated Assessment and Decision Support, Proceedings of the First Biennial Meeting of the International Environmental Modelling and Software Society; Lugano, Switzerland. Rotmans, J. 1998. ‘Methods for IA: the Challenge and Opportunities Ahead’, Environmental Modelling and Assessment. 3:155-179. Rotmans, J. and Van Asselt, M. B. A. 2001. ‘Uncertainty in Integrated Assessment Modelling: a Labyrinthic Path’, Integrated Assessment. 2001; 2:43-55. Shotton, R. 2005a. Deep Sea 2003: Conference on the governance and management of deep-sea fisheries. Part 1: Conference reports; Queensland, New Zealand. Rome, Italy. FAO Fisheries Proceedings. 3/1: 718 p. Shotton, R. 2005b. Deep Sea 2003: Conference on the Governance and Management of Deep-sea Fisheries. Part 2: Conference poster papers and workshop papers; Queensland, New Zealand. Rome, Italy: FAO; FAO Fisheries Proceedings. 3/2: 487 p. Toth, F. L. 2003. ‘State of the Art and Future Challenges for Integrated Environmental Assessment’, Integrated Assessment. 4(4): 250-264. Tudela, S. 2006. Mediterranean strategy to implement the SAP BIO related to the conservation and management of vulnerable or endangered species (including IUCN/CITES lists) and sustainable related fisheries. FAO: 31 p. UNEP. 1998. Report of the Workshop on the Ecosystem Approach; Lilongwe, Malawi. Nairobi, Kenya: UNEP; 1998. v. Doc. UNEP/CBD/COP/4/Inf. 9 WCED. 1987. Our Common Future. World Conference on Environment and Development. UK: Oxford University press: 400 p. Yaez-Arancibia, A. and Day, J. W. 2004. ‘Environmental Sub-regions in the Gulf of Mexico Coastal Zone: the Ecosystem Approach as an Integrated Management Tool’, Ocean & Coastal Management. 47: 727-757.

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Annex 1: Elements of regional progress towards EAF

Agreement reform

3

2

Adaptive management Specific WGs Observers By-catch measures

19857

19921

Associated / Dependent sp. Trophic structure Habitat considerations

12

Environmental effects Precautionary management

10

Adaptive management

214

4

1997

IOTC

ICCAT

CCSBT

GFCM

4

NAFO

4

SEAFO

IATTC

10

SIOFA12

1980

WCPFC

Formal adoption of EAF

NEAFC

CCAMLR

(compiled from Meltzer, 2006)

The Ecosystem Approach to Fisheries Illegal Fishing Ecosystem. Monitoring Ecosystem models Ecosystem interactions

1961, 1976

Endangered species

9

Improve information

11

Improved assessment

11

Monitoring

11

8

2005

Education Gear regulations MPAs

20055

Catch documentation Marine Debris Pollution from ships

19916 1973 1978

Lists of vessels Training, Capacity building Report on implementation

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Notes: Areas in which binding measures have been taken are in dark grey. Non-binding action is in light grey. (1) dolphin first and then juvenile tuna, seabirds and sharks. (2) Antigua Convention. (3) Proposal made in 2005; (4) Newly adopted constitution. (5) Prohibition of trawling beyond 1000 metres; (6) Madrid protocol. (7) International Dolphin Conservation

programme

(IDCP)

followed

by

the

Agreement on the IDCP (AIDCP, 1998) also used to protect turtles, etc. (8) Proposed changes. Not adopted yet. (9) Management plan for skates (2004) and banning o shark finning (2005). (10) The adoption process is ongoing. (11) Through ICES. (12) Including protection of seamounts. (13) Not yet in force. Years refer to the date of the decisions.

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Ecosystem Approach to Fisheries Management in Europe Poul Degnbol 1 Abstract The Common Fisheries Policy of the European Union stipulates that fisheries management shall 'minimise the impact of fishing activities on marine eco-systems. It shall aim at a progressive implementation of an ecosystem-based approach to fisheries management'. The debate on interpretation of an ecosystem approach has moved from principles to operationality in Europe as elsewhere. In the implementation of the CFP ecosystem concerns are addressed in two ways: First of all, the aim is to reduce the overall fishing pressure in according with the WSSD requirement to rebuild stocks to MSY levels. Given the overcapacity and excessive fishing pressure in many European fisheries a reduction of fishing pressure will also address a multitude of concerns regarding the impact of fisheries on ecosystems. Secondly, specific measures are taken to protect sensitive habitats and species. The ecosystem approach is now seen in a wider more integrative scope with the development of the Maritime Policy and its environmental pillar, the Marine Strategy. While further developing these integrative approaches the CFP continues to implement an ecosystem approach incrementally and in an adaptive manner.

1

Scientific Advisor, Directorate General Fisheries and Maritime Affairs, European Commission. The author’s PowerPoint presentation can be viewed on the accompanying CD.

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PANEL III: OCEAN EXPLORATION

Ocean Exploration: Introductory Remarks Barbara Moore 1 Welcome back, and welcome to our panel on Ocean Exploration— one of my favorite topics. For the last 10 years, it has been both my challenge and my good fortune, to direct a United States program which is part of NOAA, the federal agency responsible for most of the ocean and atmospheric activities in the United States.

My program, NOAA’s

Undersea Research Program, is dedicated to research under the surface of the sea. As a result of my experience with this program and the nature of the knowledge identified through the work we do, I have become increasingly aware of just how much there is to learn about what lies beneath the surface of the waves. The scope of the unknown in the oceans remains enormous. More than 90% of the ocean has yet to be visited by humans, either in person or remotely, and has not been studied. This includes major features such as the 50,000 km of mid-ocean ridge crest that spans the entire globe, the 8,000 km of deep sea trenches, the more than 30,000 seamounts and the water column itself. The oceans are massive. Most of this mass is cold, dark, and deep. The oceans are home to 99% of all living things on earth. We have mapped more of the moon and its far side than we have of the ocean floor. Why is that? The ocean is opaque. We cannot see through its waters the same way we see through the atmosphere to study the moon. The ocean is a harsh and hostile environment for those of us who are accustomed to breathing air and living in moderate climates. The same tools and technologies that enable us to study the moon are not as useful in studying the oceans. 1

Director, Undersea Research, U.S. National Oceanic and Atmospheric Administration

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Man has lived with the oceans since the beginning of human existence. Humans turned to the sea for food before they turned to planting the fields. We also have depended on the oceans for transport for thousands of years; however, the effort to study the oceans seriously did not begin until little more than 130 years ago with the voyage of the HMS Challenger, sponsored by the British Royal Society. This four year voyage on the sailing vessel, HMS Challenger, traveled around the globe with the purpose of collecting scientific data in the water column and from the sea floor in all the oceans of the world and during that journey the early explorers did just that. They traveled through almost all the oceans of the world collecting hundreds of measurements and classified almost 5000 new species of organisms. They found the deepest part of the ocean, the Marianas Trench (although their depth reading was 3000 meters short of what we now know the deepest part of the trench to be) and they recovered the first manganese nodules. The advent of modern oceanography began in the early 1950s, a little more than 50 years ago, with the end of World War II when navies from a number of nations continued to study the oceans which had played such an important part in defense operations during the war. Universities also began to offer degree granting programs to support this growing interest. At the time of the 1958 Geneva Conventions on the Law of the Sea, and even later as the negotiations leading up to the Third United Nations Conference on Law of the Sea got underway, common understanding held that the ocean floors were barren and featureless except for a mountain range that ran down the center of the Atlantic Ocean. The only resources of any consequence were the fisheries, oil and gas, and manganese nodules found on this featureless sea floor and cobalt crusts found on some

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seamounts. There could not be any life because everyone knew that in order to sustain life, one needed oxygen and sunlight—neither of which was present at deep ocean depths. And then, in 1977, this common understanding was shaken by the discovery of organisms living on hydrothermal vents deep in the ocean where light and oxygen were not present Not only were living organisms found, these living organisms were part of a thriving ecosystem that derives its basic energy through chemosysthesis—using an energy system based on sulfur chemistry, rather than photosysthesis, where the energy system is based on oxygen and light.

At the same time, ocean geologists were

beginning to understand and accept the previously dismissed notions of seafloor spreading centers and plate tectonics that make the earth a dynamic system. The 50,000 km continuous ridge system that spans all the oceans of the world was identified, and was along with its composition rich in polymetallic sulfides. These discoveries were just coming into focus as Law of the Sea negotiators were wrapping up their agreements on major treaty elements. While the conference negotiators made progress in the policy arena, the ocean scientists were making new discoveries in another. Increasing interest at the national level within the United States of America, in large part stimulated by programs within NOAA that specialized in research on undersea phenomena, led in the year 2000 to a Presidential Panel on Ocean Exploration. I was fortunate to be involved in the formation of that panel and helping the panel throughout its deliberations. Dr. Orcutt was a member of that panel which called for a robust national ocean exploration program propelled by the spirit of discovery. That panel proposed a strategy of interdisciplinary expeditions, new partnerships, and integrated federal programs to characterize the vast array of biological, physical, and chemical environments of the oceans and

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foster the development of technology. These recommendations led to the establishment of the Office of Ocean Exploration within NOAA in 2001. In 2003, a National Research Council report reiterated the need for a comprehensive national ocean exploration program strongly linked to traditional

research,

with

broad

international

partnerships

and

a

commitment to educational opportunities. Dr. Orcutt was co-chair of the National Research Council panel; John Norton Moore was also a member. This report was followed in 2004 by the U.S. Commission on Ocean Policy recommendation to establish an expanded ocean exploration program. Paul Kelly was member of that Commission. Thus, we in the United States have made a strong commitment to invest in ocean exploration for its value in helping us to narrow the gap in understanding. The program contains a strong commitment to sharing the information it collects and to international partnerships to carry it out. Our panel this afternoon reflects a number of issues that focus on various aspects of understanding the vast unknown still facing us.

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Impact of Changes in Natural Conditions on Ocean Resources Hjalmar Vilhjalmsson 1 Abstract Most, if not all, monitoring of climate related parameters shows a consistent rate of warming over the last 2-3 decades or so. Although this climatic warming is of global dimensions, it is most conspicuous in polar regions, and in places reaches down to sub-Arctic/Antarctic areas. Today, there are a number of General Climate Models (GCMs) in operation. While almost all of them agree on a warming trend in climate, the rate of predicted warming differs considerably. Most climate models run smoothly on a global scale, but their spatial resolution is as yet low. In other words, these models can not as yet be used for predicting a train of events for specific areas with confidence. But whatever the confidence that we as individuals might have in modelling of climate variance, it would be irresponsible to ignore the indications by the various GMC’s of an ongoing and consistent warming of climate. Although still under debate, the general consensus seems to be that the observed warming of climate in recent decades is caused by increased anthropogenic activities. These have required the burning of larger quantities of fossil fuel and thus caused a steady increase in the release of greenhouse gasses, notably carbon dioxide (CO2). Warming or cooling of the atmosphere will inevitably affect the world ocean surface layers in the same directions, both due to simple heat exchange and different storm activity. Furthermore, changed physical processes, resulting from a freshening of the surface layer of polar oceans and adjacent waters due to ice melt and increased runoff from large rivers and lakes, will upset the specific gravity balance of Arctic and Antarctic waters and reduce the flow of cold bottom water 1

Senior Scientist, Marine Research Institute of Iceland. The author’s PowerPoint presentation may be viewed on the accompanying CD.

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into the deep ocean basins. Eventually, the latter may negatively impact the global deep sea ocean current system, the so-called conveyor belt, with disastrous consequences for very large areas, especially in Arctic/sub-Arctic areas as well as in corresponding areas in the Antarctic. However, this is probably a long-term process (several centuries). This paper focuses on likely effects on fish, and some other commercial stocks, and fisheries in the northern North Atlantic assuming a warming marine climate. The history of fisheries and fish stocks development in the northern North Atlantic during most of the 20th century is comparatively well known. It is also common knowledge that during the last decades of the 19th century and the first two of the 20th, cold conditions predominated in most of this area. In the 1920s there was a large and rapid warming culminating in the early 1930s. In the mid-1960s there was an even more abrupt cooling, almost to the pre-1920 conditions, followed by a partial recovery in the 1970s and a new warming trend since the early to mid-1990s. Associated with climate variability in the 20th century, there were many radical changes of fish stocks, both in growth due to changes of food availability and temperature per se, but also of distributions and migration patterns and even the arrival of more southern species. Concurrently, many of these stocks were mismanaged, i.e. “overfished” in common language. This applies both to species migrating through the economic zones of different countries as well as to local stocks where fishing pressure was kept too high, either for socioeconomic reasons or an inadequate knowledge base of fisheries advisors, or both. On the basis of observations and experience during the 20th century, this paper attempts to analyze to what extent the effects of observed variations in abundance, growth and migration routes are due to specific changes of climate and what should be blamed on excessive fishing pressure. For this purpose, examples of changes of selected stocks in the North Atlantic in this period will be used as templates. However, we must bear in mind that the size and thereby the biology of most of

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Impact of Changes in Natural Conditions

these stocks are not the same as they used to be in those times, and for that reason they may not react in the same way as they previously did. Nevertheless, the use of historical examples seems to be our best, if not the only, available and useful tool when trying to foresee future responses of marine stocks to climate change. Hopefully, the results will represent an upward step, however small, in the difficult ladder to climb when managing fish stocks under future warming climatic conditions. On looking back over past fisheries and climatic episodes, it is quite clear that in many cases mismanagement and/or lack of bi- or multinational agreements on exploitation of straddling stocks, migrating through the Exclusive Economic Zones (EEZs) of two or more countries, have in most cases had even larger effects on stock developments than changes of climate. If we want equilibrium and thus economical future fisheries, it is imperative that effective agreements be reached on total allowable catches (TACs) and national fishing rights with respect to such TACs and, for that matter, also for stocks residing permanently within the EEZs of the various countries. Key words: Climate change, modelling, North Atlantic, fish stocks, management, international agreements.

Introduction Most if not all monitoring of climate related parameters show a consistent rate of warming over the last two-three decades or so. Although this climatic warming is of global dimensions (Fig. 1), it is most conspicuous in polar regions (Fig. 2), and in places reaches down to subArctic/Antarctic areas. Although still under debate, the general consensus seems to be that the observed warming of climate, at least in recent decades, is caused by increased anthropogenic activities. These have required the burning of increasing quantities of fossil fuel and thus caused a steady

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Hjalmar Vilhjalmsson

increase in the release of greenhouse gasses (GHGs), notably carbon dioxide (CO2), although various aerosols and methane also play a part.

Figure 1. Global variations in surface temperature from the 1961-2000 mean during 1860-2000. Columns denote actual measurements. The black line represents the equivalent of 10 years moving averages. Redrawn from Figure 2.3, IPCC Synthesis Report, 2001.

Figure 2. Arctic land-surface air temperatures (60°-90°N 1900-2003. The broken line represents actual measurements and the unbroken black line decadal moving averages. Redrawn from Figure 2.6, ACIA, 2005.

For the study and evaluation of this phenomenon, large international

organizations

have

been

established,

notably

the

Intergovernmental Panel on Climate Change (IPCC), a joint effort by the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP) in 1988 and the Arctic Council, an

228

Impact of Changes in Natural Conditions

intergovernmental forum for addressing common concerns and challenges faced by arctic people and governments, consisting of eight arctic nations, six Indigenous Peoples organizations, official observers, non-governmental organizations as well as various scientific and other international bodies. The IPCC, which works on a global scale, has produced three major comprehensive reports (1990, 1996, and 2001 and a fourth one is in preparation for publication in 2007) to estimate climate change, its impacts and point out options for mitigation and/or adaptation to such changes and provide, on request, advice to the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change. On the other hand, as the name implies, the Arctic Council is mainly concerned with climate related processes in the Arctic and in 2005 published a report titled Arctic Climate Impact Assessment (ACIA), the result of a wide ranging 5year study of climate change, its past observed effects, as well as projected ones in the Arctic and adjacent areas in the 21st century. However, local changes varied considerably from the average shown in Figure 2. In its third report (2001) IPCC evaluated the suitability of existing models to simulate past climate change at the turn of the century and came to the conclusion that, as a class, the so-called atmospheric-ocean general climate

models

(AOGCMs)

produced

the

best

approximations.

Subsequently, ACIA selected four of the IPCC certified AOGCMs for its studies and two scenarios (A2 and B2) were then chosen to illustrate possible climate change (for description of inputs see IPCC 2001). The models gave similar predictions up to about 2050, but then diverged considerably with one (A2) showing almost double the temperature rise by the end of the century as compared to the other (B2) with reference to the different GHG emission increases (Fig. 3). For definitions of the two scenarios or story lines see IPCC 2001, p 176.

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Hjalmar Vilhjalmsson

Figure 3. Projected mean air-surface temperatures in the Arctic 60°-90°N 20002100 for the A2 and B2 scenarios, relative to 1981-2000. Redrawn from Figure 2.6, ACIA, 2005.

Most AOGCMs run smoothly on a global or even sub-continental scales, but their spatial resolution is as yet low. In other words, these models can not be used for confidently predicting trains of events for specific, relatively limited, areas. But whatever the confidence that we as individuals might presently have in the usefulness of modelling climate variance, models and their continued development are our best tools by far, it would be irresponsible to ignore the indications by the various AOGCM’s of an ongoing and consistent general warming of climate if the concentration of GHGs continues to rise. Warming or cooling of the atmosphere will inevitably affect the world ocean surface layers in the same directions, both due to simple heat exchange and varying storm activity. Furthermore, changed physical processes, resulting from a freshening of the surface layer of polar oceans and adjacent waters due to ice melt and increased runoff from large rivers and lakes, may upset the specific gravity balance of Arctic and Antarctic waters and reduce the flow of cold bottom water into the deep ocean basins. Eventually, the latter may negatively impact the global deep sea/surface

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ocean current system, the so-called conveyor belt, with disastrous cooling for very large tracts of land and sea, especially in Arctic/sub-Arctic areas as well as in much of the North Atlantic and over adjacent landmasses (ACIA, Chapter 9). However, this is probably a long-term process taking several centuries or even a millennium. It is common knowledge that during the last decades of the 19th century and the first two of the 20th, cold conditions predominated in most of the northern North Atlantic. In the 1920s there was a large and rapid warming culminating in the mid-1930s. In the mid-1960s there was an even more abrupt cooling, almost to the pre-1920 conditions, followed by a partial recovery in the 1970s and a new warming trend since the early to mid-1990s. Associated with climate variability in the 20th century, there were many radical changes of fish stocks, not only in growth due to changes of food availability and temperature per se, but also of distributions and migration patterns as well as the arrival of more southern species. The use of historical examples seems to be our best, if not the only, available and useful tool when trying to foresee future responses of marine stocks to climate change. On the basis of observations and experience during the 20th and early 21st centuries, this paper attempts to analyze to what extent the effects of observed variations in abundance, growth distribution and migration routes are due to specific changes of climate and what should be blamed on anthropogenic interference such as excessive fishing pressure. For this purpose, examples of changes of Atlantic cod (Gadus morhua), herring (Clupea harengus) and capelin (Mallotus villosus) biology in the North Atlantic in this period will be used as templates although other stocks will be mentioned in passing. The history of fisheries and developments of the various stocks of these three species in the northern North Atlantic during most of the 20th

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century is comparatively well-known. However, predicting future responses of these and many other species/stocks is a very difficult task, inter alia because most of these were mismanaged, i.e. overfished in common language. This applies both to species migrating through the exclusive economic zones (EEZs) of different countries as well as to local stocks, where fishing pressure was kept too high, either for socio-economic reasons or an inadequate knowledge base of fisheries advisors, or both. Hence, the size and thereby the biology of most of these stocks are not the same as they used to be in earlier times, and for that reason they may not react in the same way to climate change as they previously did. Nevertheless, the results of such comparisons represent an upward step, however small, in the difficult ladder to climb when managing fish stocks under future warming climatic conditions. On looking back over past fisheries and climatic episodes, it is quite clear that in many cases mismanagement and/or lack of bi- or multinational agreements and their enforcement on exploitation of straddling stocks, migrating through the EEZs of two or more countries, have in most cases had even larger effects on stock developments than changes of climate. If we want equilibrium and thus economically viable future fisheries, it is imperative that effective agreements be reached on total allowable catches (TACs), general management methods and national fishing rights with respect to such TACs and, for that matter, also for stocks residing permanently within the EEZs of the various countries. A short description is given of the nature of the four marine ecosystems in the northern North Atlantic, relevant to this paper. For further details see ACIA, Chapters 9 and 13.

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Barents Sea The Barents Sea is a shallow semi-enclosed shelf sea with a mean depth of about 200 m. In the south it is delimited by the coasts of northern Norway and Russia, in the east by the large island of Novaya Zemlya and in the north by the archipelagos of Franz Josef’s Land and Svalbard (cf. Fig. 4). Due to the strong and warm Norwegian branch of the North Atlantic Current, large tracts of the southern part of this vast sea area are warm despite its extreme northern location (ca. 70°-78°N), and most fish spawn in these waters. In warm years Atlantic waters may reach 77°N and to the east of the Murmansk peninsula (45°E). In the north and east the warm Atlantic water meets cold water from the north at the so-called Polar Front (Fig. 4). There may be large differences in the extension of Atlantic water in the Barents Sea, mainly due to variations in the relative strength of the warm and cold currents meeting there. These changes generally coincide with the so-called North Atlantic Oscillation (NAO) and generally occur on decadal or shorter time scales (ACIA, Chapter 9).

Figure 4. An ‘average’ position of the Polar Front (black line) in the northern North Atlantic. Author’s representation.

Due to its shallow nature and mixing processes in the region of the ever shifting Polar Front, the Barents Sea is very productive and sustains the

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world’s largest populations of Atlantic cod, commonly called North East Arctic cod in ICES (International Council for the Exploration of the Sea) language, and of capelin. However, apart from the Barents Sea proper, both cod and capelin can, and usually will, extend their distribution ranges to the west of Svalbard north to at least 78°N. The Barents Sea also serves as the nursing area of the world’s largest herring stock (historic maximum size range 10-20 million tons). However, these herring leave the Barents Sea in their first year of maturing, usually at ages 3-5 depending on year class size, to feed in the Norwegian Sea and north of Iceland and then spawn off the west coast of Norway in March of the following year. Naturally, the Barents Sea is host to many other and usually more southerly commercial fish stocks like saithe (Pollachius virens), haddock (Gadus aeglefinus), various types of flatfish and invertebrates, but these will not be dealt with in the present context. Herring and saithe are highly migratory while other species are more or less stationary in the Barents Sea and the immediate adjacent waters. Iceland Unlike the Barents Sea, the Icelandic marine ecosystem is an open one, typical of an island system located in the open ocean (cf. Fig. 4). However, the Icelandic ecosystem is similar to that of the Barents Sea in that it is for the most part under the influence of the warm North Atlantic Current, especially its westernmost branch. The Irminger Current runs north to the west of the Reykjanes Ridge (part of the Mid-Atlantic Ridge) and then in part eastwards over the N- and E-Icelandic shelves as the North Icelandic Irminger Current. Thus, Iceland and its continental shelf lie just south of the Polar Front, formed in this area by the East Icelandic Current, an offshoot from arctic East Greenland Current waters mixed to a certain degree with warmer Atlantic water. On rare occasions the Polar Front

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reaches the north and east coasts and can have, and indeed has had, large effects, especially on recruitment, growth rates, and distribution of many commercial marine stocks. There are some 25 commercially exploited species of fish and invertebrates on the Icelandic shelf, but the stocks of most of them are smaller than their counterparts in the much larger Barents Sea. As in the Barents Sea, most fish spawn in the warm Atlantic water off the S- and SW-coasts of Iceland, from where the larvae and 0-group stages are carried in a clockwise direction to the nursing areas in the cooler shelf waters to the north and east of the island. However, because the north going warm Irminger Current splits in two off NW-Iceland, with the larger branch running west towards Greenland, parts of the spawning products, especially those of cod and capelin are often carried away from Iceland to the west and, the young cod at least, usually round Cape Farewell (the southernmost point of Greenland) and settle off W-Greenland between the Cape and Disko Island (cf. Fig 4).

Greenland The Greenland marine ecosystem is of a truly arctic nature. The reason for this is the overwhelming influence of the cold and strong East Greenland Current, which carries arctic water south over the E-Greenland shelf, rounds Cape Farewell and continues far north along the west coast in the upper 100 m of the water column (cf. Fig 4). East of Greenland, the East Greenland Current is generally limited to the E-Greenland shelf area outside of which it meets the warm western branch of the Irminger Current near 66°N. Like the East Greenland Current, the Irminger Current also rounds Cape Farewell and continues north off W-Greenland in the deeper layers (below about 100 m). These two water masses mix by turbulence and eddy

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diffusion and thus the otherwise cold waters of the East Greenland Current are ameliorated considerably. As a rule, cold water species like Greenland halibut (Hippoglossus reinhardtius), capelin, northern shrimp (Pandalus borealis) and snow crab (Chionoecetes opilio)

dominate W-Greenland waters under ‘normal

conditions’. However, because of the ameliorating effects of the Irminger Current and the southern latitude, cod and even herring can grow off WGreenland in warm periods (cf. Fig 6) and spawn there in large numbers as we shall see later.

Newfoundland and Labrador Similar to that of Greenland, the Newfoundland/Labrador marine shelf ecosystem is also best described as arctic. It is overwhelmingly under the influence of the cold Labrador Current and does not become milder until reaching the southern part of the Grand Bank (cf. Fig. 4). Therefore, the same species as in Greenland are typical of Newfoundland/Labrador waters, at least in the northern part. South of Newfoundland the ecosystem is open to warmer waters in the west. There is one large difference between these two ecosystems, namely that Atlantic cod has been common and plentiful in the Newfoundland/Labrador ecosystem and has been fished there continuously since time immemorial. However, this great stock of cod, today called ‘northern cod’, crashed in the late 1980s/early 1990s and there are no signs of recovery despite a moratorium on fishing for almost 15 years. Atlantic species like plaice have been common in the southernmost regions and visits by bluefin tuna (Tunnus tynnus) and some other more southern species are not uncommon, probably due to the proximity of warm Atlantic water as well as the fact that the middle of the Grand Bank is located at

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roughly the same latitude as Paris, France and warming of the surface layer in summer is therefore quite large.

Variations in Marine Climate of the Northern North Atlantic and Their Effects Since the Late 19th Century

As already mentioned, atmospheric climate changes will generally affect the marine climate in the same direction. In its third report the IPCC (2001b) inter alia gave a reconstruction of global climate change, measured as surface temperature deviations from the 1861-2000 average. These changes are shown as annual temperature deviations and 5-year running means in Figure 1. This diagram shows cold conditions until about the mid1910s and a warming trend from then until about the mid-1940s. From about 1945 there was a slight cooling but otherwise a steady state until about 1980 when the climate started warming again, this time at a steady and unprecedented rate until the end of this series in year 2000. The difference between the lowest and highest temperatures is about 0.8°C. However, as shown in Figure 2 (ACIA, 2005, p 125), the average temperature rise is more than twice that (2.2 °C) in arctic regions (north of 60°C) and locally may be even be even higher (Figs. 5 and 6). Add to this the relatively much larger deviation from the ambient cold arctic air and sea than from the many times warmer ambient conditions further south, we do not need much imagination to realize that such a change is likely to have a much larger effect on marine life forms in the Arctic than in more temperate waters—not to mention in the tropics. We will now examine past effects of climate change on the selected species in the ecosystems just described.

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Figure 5. Sea temperature anomalies (5 year moving averages) off central NorthIceland 1900-2005. Redrawn from Vilhjálmsson 1997, with data added.

Figure 6. Sea temperature changes (5 year moving averages) off W-Greenland 1880-2004. Redrawn from Buch et al. 2002, with data added.

Atlantic Cod As stated above, climatic conditions were extremely cold in most areas of the northern North Atlantic during the period 1880-1920. In Iceland the top of the ‘iceberg’ is usually considered to be the extremely cold winter of 1918, when it is said that people could cross the two 100 km wide bays on the west coast on foot. At this time, the island was more or less surrounded by drift ice and the shallower waters of these bays were frozen

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solid. After this, a great thaw began and culminated in the mid-1930s when sea temperatures had increased by about 2°C (Fig. 5). Using age disaggregated catch and VPA analysis, Schopka (1994) calculated the total stock biomass and that of 10 years and older fish back to 1925, with resulting figures of about 2.5 and 1.1 million tons respectively in the beginning of this period. Even though Schopka’s figures may not be completely accurate so far back in time, there is little doubt that the Icelandic cod stock was large at the end of the cold period and even while it lasted (Schmidt, 1909), at least in comparison to present times. At any rate the stock produced two huge year classes in 1922 and 1924, the larger part of which drifted across to Greenland, settled and grew off W-Greenland in the following years. Similar to Iceland, sea temperatures had been very low off WGreenland during the preceding decades (Fig. 6) and Danish research and fishing experiments had made it quite clear that there were practically no Atlantic cod in W-Greenland waters, at least in the late 1800s and the first two decades of the 20th Century (e.g. Jensen 1926). However, by about 1922 ocean temperatures off W-Greenland had increased by about 1°C and almost 2°C by 1928 (Smed 1965). This is shown in Figure 7 together with the cod catch, which increased from practically zero in 1925 to about 100,000 tons in 1931 when the 1922 and 1924 year classes had reached commercial size. Thus there is little doubt from where these cod originated.

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Figure 7. Temperature variation and cod catch off W-Greenland, 1910-1940. From Vilhjálmsson 1997.

A large proportion of W-Greenland cod of Icelandic origin left for spawning at Iceland (Fig. 8) and in most cases did not leave Icelandic waters again.

Figure 8. Total recruitment at age 3 of cod at Iceland 1920-2003. The grey parts of the columns represent immigrants from W-Greenland. Redrawn after Schopka 1994, Vilhjalmsson 1997, with data added.

However, Buch et al. (1994) calculated that enough mature cod remained in Greenland waters later to start a self-supporting cod stock off West Greenland (Fig. 9). This was initiated by the 1922, 1924 year classes which were of Icelandic origin. According to the same authors, average recruitment during 1922-1924 was about 65 million fish (age 3) with the

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1922 and 1924 year classes contributing around 200 million each while the rest contributed less than 50 million. However, recruitment during 19341966 was much higher, varying between 75 and 630 million fish. After 1966 only the 1973 and 1984 year classes are worth mentioning, but both of these were of Icelandic origin (c.f. Fig. 8).

Figure 9. Recruitment at age 3 and spawning stock biomass of W-Greenland cod 1920-1990. Redrawn after Buch et al. 1994.

The W-Greenland cod stock culminated in the late 1940s at about 4 million tons of fishable biomass (age 3+; no figure) and its distribution increased northwards by almost 1500 km as shown in Figure 10.

Figure 10. Cod at Iceland and Greenland. Larval drift: Black arrow, Feeding and spawning migrations. The arrow indicates the northward colonization off WGreenland in the 1920s and 1930s. from Vilhjalmsson 1997.

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After 1960 the W-Greenland cod declined rapidly in tune with a drop in temperature by 2-2.5°C off West Greenland in the mid-to-late 1960s (cf. Figs. 6 and 9). However, the huge fishing pressure after WWII also played a prominent role in the depletion of the stock in this period as can be gleaned from Figure 11 which shows the total landings from this stock during the years 1910-2000. Figure 11 is divided in two parts, i.e., what was fished by Greenland (lower) and that taken by other nations (upper).

Figure 11. The catch of cod at W-Greenland 1910-2000. The black area is cod taken by Greenland; the grey shaded area denotes cod fished by other nations.

Naturally, the 200 mile EEZ was not on paper in those times, and the Greenlandic infrastructure probably did not allow for much more than their motly share of the total landings. At present there are practically no Atlantic cod off W-Greenland and the Greenland catch consists almost entirely of the cold water species Greenland halibut and northern shrimp. It is interesting to note that recently it has been calculated that an annual yield of 250-300,000 tons from a healthy cod stock would be worth approximately the same amount as the present Danish subsidy although the northern shrimp catch would probably have to be reduced by three quarters from its present level (ACIA, Chapter 13).

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Since environmental conditions improved considerably around and after 1975, the question remains whether the W-Greenland cod could have withstood the climatic adversities of the decade 1966-1975 if it had been fished in a more rational manner. But since the stock did not show any signs of recovery as a result of the immigration by the 1973 and 1984 year classes from Iceland, it seems most likely that the W-Greenland cod stock would have crashed for climatic reasons anyway. At present (2006) water temperatures off West Greenland have increased again to the 1935-1965 levels (cf. Fig 6). But although there are signs of drifts of larval and 0-group cod from Iceland in 2003 and 2005 (ICES, 2005; Bergstrøm and Vilhjálmsson, 2006), it is too early to say, but it is in fact unlikely that these fish are of sufficient numbers to bring about such a rapid recovery as that which occurred in the 1920s. The development of the Icelandic cod stock reveals a very different story. The distribution of Icelandic cod is over the Icelandic shelf (see Fig. 10) and thus below the Polar Front except in very rare circumstances, (e.g. in 1918). The available data, which reach back to 1926, all suggest that the state of this stock has first and foremost been shaped by fishing pressure (Fig. 12; see also Fig. 5).

Figure 12. Iceland cod. Fishable stock (‘000 t) and fishing mortality (F) expressed as percentage of fishable stock 1925-2005.

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Although there was an extension of the spawning grounds of cod and other species, especially during the initial phase of the warming in the 1920s and the first half of the 1930s (Sæmundsson 1934), this does not seem to have had a large effect on recruitment by that part of the each year class which grew in Icelandic waters (Fig. 13). In fact it seems that the Icelandic area cannot accommodate year classes much larger than 300 million age 3 recruits, which is strange in the light of the fact that the huge returns from Greenland of cod of the 1922, 1924, and 1945 year classes, most of which appeared to stay on after their return as adult immigrants from Greenland.

Figure 13. Spawning stock biomass (SSB) and recruitment at age 3 of cod at Iceland (excluding Greenland immigrants) 1920-1995. The black lines represent averages for the periods they reach. After Schopka 1994 and Anon. 2006.

If we look at a the stock/recruitment plot where year class size in millions is simply plotted as columns against SSB, represented by a black line (Fig. 13) it appears that local recruitment was more or less ‘normal’ from the beginning of the data series in 1926 until 1985 with an annual average of 203 million (not counting the Greenland immigrants). Even during the very cold period 1965-1970, the average did not fall below 200 million individuals. However, from 1985 to present, the average annual recruitment is only some 139 million and not one good year class has been

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produced. The difference is 61 million recruits, which corresponds to 90100 thousand tons in annual TACs which have been lost. The most plausible explanation for this seems to be a very small and consequently young spawning stock. In other words multiple spawners have become too few and far between and it has been shown, both for the Icelandic and Barents Sea stocks, that such fish are necessary for maintaining a normal recruitment pattern (Marteinsdóttir G. and A. Steinarsson 1998; Marteinsdóttir G. and G. Begg 2002; Ottersen, G., and Sundby, S., 1995). A counterargument, often heard in Iceland, is that the 1983 and 1984 year classes derived from very small spawning stocks. The logical answer to this is that at that time there were still considerable numbers of large fish of the rich 1970 and 1973 year classes around, which were fished out soon afterwards. Although the Icelandic cod stock cannot be said to be in a state of danger, its exploitation is far from optimal. The Barents Sea Atlantic cod (usually referred to as Northeast Arctic cod in ICES language) is potentially the largest stock of Atlantic cod in the world (Nakken 1994). These cod spawn in the Lofoten area (NWNorway), where they are also fished, together with the fisheries of prespawning cod as they follow the capelin spawning migrations to the coasts of Finmark and the Murmansk peninsula further north and east. These fisheries go back for centuries and were in their heyday one of the mainstays of the Hanseatic League, with catch reception headquarters in Bergen, Norway. As the name implies, the Barents Sea cod grow up in large areas in the Barents Sea with feeding and spawning migrations as shown in Figure 14. There may be considerable distribution changes depending on variations of the inflow of warm Atlantic water from the west. These changes are mainly caused not only by the varying relative intensities of the warm

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Atlantic water of the Norwegian Current and cold polar water entering from the north and northeast, but also by the occasional overflow of cold bottom water of high salinity from the Barents Sea Basin northwards between Svalbard, St. Josefs Land and Novaya Zemlya. Nevertheless, the Barents Sea cod can not be considered ‘highly migratory’ but keep to the Barents Sea and adjacent waters, i.e. within the EEZs of Norway, Russia and the ‘fishery protection area’ west of Svalbard.

Figure 14. Distribution and migrations of Barents Sea cod. From Nakken 1994.

While large year class size tends to be associated with warm periods, like among cod in Iceland, and either occurs at the onset of or during these periods or both (Sætersdal, G. and H. Loeng 1987; Sundby, 2000; Fig. 15), it is also clear that the size, or the age composition rather, of the spawning stock also plays a major role. As in Iceland it seems that multiple spawners produce higher quality eggs which also float at different depths and therefore have greater survival chances than eggs from young

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spawners which tend to remain and hatch at similar depths (eg. Ottersen and Sundby 1995). From this it follows naturally, that it is the relative fishing pressure on the various year classes, rather than hydrographic conditions (e.g. temperature) that first and foremost determines the year class size (production) of the Barents Sea cod (Fig. 16).

Figure 15. Northeast Arctic cod. Age 3 recruits (columns), spawning stock biomass (SSB, dark line) and temperature variations (5 year moving averages, grey line) 1910-2005.

Figure 16. Landings of Northeast Arctic cod (columns) and fishing pressure (F) as percentage of total fishable stock biomass (black line) 1900-2003. The grey line denotes temperature deviations on the Kola section running north from the Kola Peninsula.

In the context of climatic variability it is interesting to give a thought to the so-called ‘northern cod’ of Newfoundland and Labrador. This very large stock, which in its heyday must have counted millions of tons

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(Harris et al., 1990), was reduced to practically zero about 15 years ago. A complete moratorium on fishing this stock was imposed in 1992 and has in practical terms been in force since then. The expected recovery has not materialized (e.g. Rose 2004). Cod has been fished off Newfoundland and Labrador from 1504, if not before, by Breton, Basque, Portuguese, and English fishermen crossing the ocean to catch fish on the Newfoundland banks. Admittedly, catch records during the first two-three centuries probably were neither reliable nor were catches very large by modern standards, However, there is a catch record dating back to 1850 which probably gives a fair idea of the development of the fishery from then to modern times (Harris et al. 1990; Fig. 17).

Figure 17. The catch of cod off Newfoundland and Labrador (northern cod) 18501995 and sea temperature deviations off St. John’s 1880-2005.

Indeed it is remarkable that catches of about 150-300,000 tons during the 100 year period 1850-1950 do not seem to have affected the propagation of the stock, even during the extremely cold period during the latter part of the 19th century and the first two decades of the 20th. The Newfoundland marine ecosystem is open to the west, and although there are no data to support such shifts (George Lilly pers. comm.) it is conceivable that the ‘northern cod’ complex may have backed south and west under the

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most adverse conditions and then repopulated their ‘normal’ distribution areas when conditions improved. In the mid-to-late 1950s the fishing pressure, brought about by a large

international

trawler

fleet,

increased

tremendously.

Catches

skyrocketed, reaching a peak of more that 800,000 tons in 1968 after which there was an equally sharp decrease in landings until Canada extended its EEZ to 200 miles in 1977. After that there was a short period of apparent recovery until the sudden and complete crash in the early 1990s. There can be little doubt that the crash of the ‘northern cod’ was brought about by overfishing with associated reduction in recruitment. It is even more than likely that the damage had already been done by the early 1970s and that the adverse climatic conditions of the late 1980s and the 1990s (cf. Fig 17), together with an immense increase in local seal populations and fishing pressure, delivered the final blow. It is considered likely that this once large stock of Atlantic cod will eventually recover—but it is anybody’s guess how long that will take. Furthermore, it is likely that a large reduction in the seal populations and increased availability of capelin (see below) are necessary for that to happen (Rose and O’Driscoll, 2002). However, there is one more important lesson to be learned from the cod examples just described. The Barents Sea and Icelandic ecosystems are generally not under the influence of arctic waters for any length of time, but rather at temperature near optimum for cod. For this reason, too much fishing pressure will naturally reduce stock abundance and recruitment greatly, whereas sudden stock crashes are unlikely. To fish such a stock in a depleted state is however not very economical—to put it mildly. The Greenland and ‘northern cod’ stock live under very different oceanographic conditions and, in other words close to their distribution limit. If such stocks are fished too heavily for a long period they will inevitably crash, and such

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crashes may be very sudden, in part unexpected, and take a long time to repair as in the case of the Newfoundland/Labrador cod. That cod stock does not have a long research history and in the 1950s and 1960s people perhaps still remembered and believed in the old quote from 1822: The shores, the creeks, the inlets of the Bay of Fundy, the bay of Chaleurs, and the Gulf of St. Lawrence, the Straits of Belle Isle and the coast of Labrador, appear to have been designed by the God of Nature as the great ovarium of fish; the inexhaustible repository of this species of food, not only for the supply of the American, but of the European continent. At the proper season, to catch them in endless abundance, little more of effort is needed than to bait the hook and pull the line, and occasionally even this is not necessary. In clear weather, near the shores, myriads are visible and the strand is at times literally paved with them. John Quincy Adams Then-Secretary of State and later President of the United States.

Herring Apart from the West Greenland cod, the most striking example of the reaction of any fish stock to climate change in the northern North Atlantic is that of the so-called Atlanto-Scandian herring. This is a complex of herring stocks of which the one spawning in spring off the west coast of Norway and growing in the Barents Sea until the age of 3-4 years is the biggest by far. In fact it is the largest herring stock in the world and can grow to an adult biomass of at least 15 million tons and completely dwarfs the other components of the Atlanto-Scandian herring complex, i.e. the Icelandic spring and summer spawners, which together add up to little more than about 1-2 million tons in favourable periods (Jakobsson, 1980).

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Like cod, the Norwegian spring spawning herring has had its ups and downs. For example it is believed that the stock cannot have been much larger than 2-3 million tons during the cold period in the beginning of the 20th century, but through improvement of recruitment and feeding conditions starting during the warming of the 1920s and 1930s, quickly increased to about 13 million tons in the early 1930s and again to about 16 million tons in the mid-1940s (Toresen and Østvedt, 2000; ACIA Chapter 9). Herring are plankton eaters and clearly to find such an enormous biomass has to search far and wide for sufficient food to obtain enough energy for sustenance. Thus, the feeding grounds of these herring encompassed more or less the entire Norwegian Sea from the coast of Norway to Iceland, between the Polar Front and the Faroes, as well as the Atlantic and mixed waters north and east of Iceland and between Iceland and the island of Jan Mayen, with over-wintering grounds east of Iceland until December/January, when these herring migrated east across the Norwegian Sea to their spawning grounds off the west coast of Norway (Fig. 18a).

Figure 18 (below). Changes of migration routes, feeding and wintering areas of Norwegian spring spawning herring during the latter half of the twentieth century. Black: Spawning areas; Light grey: Juvenile areas; Dark grey: Main feeding areas; Dark grey arrows: Feeding migrations; White arrows: Larval drift. A: Normal migration pattern during the warm period before 1965. B and C: After the onslaught ofthe Great Salinity Anomaly (cold period) until the stock collapsed in 1968. D: During low stock abundance in the years 1972-1986. E: The present day migration pattern. After Vilhjálmsson 1997.

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As described above there was a sudden cooling north and east of Iceland, beginning in 1964 and lasting until 1970 with variable conditions in the following years (cf. Fig. 5). The position of the Polar Front shifted south to the north coast of Iceland and in the east to about 65°N and about 09°W. As a result, the Atlanto-Scandian herring lost at least one third of their previous feeding grounds rapidly, and at the same time recruitment

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was decimated. Nevertheless, the previous feeding migration pattern persisted for several years before breaking down completely in the late 1960s (Fig 18b-d). However, there is more to this story than just change of climate. Herring is an excellent food fish, even to the extent that in earlier centuries ‘herring wars’ were fought in the North Sea between the English and the Dutch over fishing rights in that area. In Norway there is a herring fishing tradition going back to Viking times which was brought to Iceland during the settlement period around 850-1000 C.E. However, this fishery was conducted with inefficient gear, like nets and beach seines, and cannot have had any appreciable effect on the Atlanto-Scandian stock complex as a whole. This was to change with the invention of the purse seine, which could be used to catch surfacing schools in the open ocean and later (in the 1950s), with the advent of echo sounding techniques to locate sub-surface schools and power blocks for hauling the large seines (Jakobsson, 1964). These developments were nothing short of revolutionary, making it possible to fish non-surfacing schools both efficiently and quickly. Add to this an effective search service by the main participating countries and annual catches skyrocketed from a few hundreds of thousands of tons annually in the early 1950s to nearly two million in the 1960s. At the same time the traditional small and fat herring coastal fishery off northern Norway continued using the novel techniques. Therefore it is of little surprise that the Norwegian spring spawning herring stock crashed completely in the late 1960s through overfishing, especially of the immature part (e.g. Jakobsson 2000; Fig. 19a and b), in times of inhospitable climatic conditions.

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Figure 19a and b. The catch in weight of Norwegian spring spawning herring 1950-2004 (upper panel) and the same catch in numbers (lower paned). After Jakobsson 2000, with data added.

Although it took only a few years to rebuild the Icelandic summer spawners (Jakobsson and Stefánsson, 1999), some 25 years passed before the largest component, the Norwegian spring spawners, had recovered enough to resume some semblance of their previous migration pattern in spite of a complete fishing ban for several years and very conservative catch quotas after that (Toresen and Østvedt 2000). Indeed these herring have begun to show up in Icelandic and Faroese waters again since the warming in recent years (Fig. 18.e). However, the Icelandic spring spawners have not shown any signs of recovery as yet and may need boosts from Norwegian herring, like the W-Geenland cod, to do so.

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Capelin In Newfoundland waters capelin abundance seemed to diminish during the cold 1990s, but has recently increased again in their traditional areas with rising water temperatures. What exactly happened during this period is not clear, since research was so severely cut that to hit upon a plausible explanation of this change would have been pure coincidence (Carscadden, J. E., Frank, K. T. and Leggett, W. C. 2001). There are very good records of shifts in capelin distribution off West Greenland during the warming of the 1920s and 1930s (Fig 20). Prior to 1920 the highest concentrations were found in the Cape Farewell-Nuuk area and north off Disko Bay, capelin were relatively rare.

Figure 20. Distribution changes of capelin at Greenland during the warming 19201935.

As the warming increased capelin began to occur in larger concentrations progressively further north, and by the end of the 1930s their center of distribution appeared to have shifted all the way to the Disko area (Vilhjálmsson 1997). At about that time capelin were even being caught at

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Thule, where the locals did not recognise this strange fish! Unfortunately, there are no records of changes in total capelin abundance in this period, but judging by the existing records their total abundance likely did not change much. However, it is said that they became rare or absent altogether in a fairly large area north from Cape Farewell. In the area between Iceland, East Greenland, and the island of Jan Mayen there is a capelin stock which spawns, mainly in March, in the warm Atlantic water in near-shore areas south and west of Iceland and grows over the shelves off northern Iceland and East Greenland, west of the Denmark Strait. A small winter fishery on this stock began in Icelandic coastal waters in the mid-1960s, and expanded to include the deep water areas east of Iceland in the early 1970s. This was a purely Icelandic fishery and yielded up to 5-600,000 tons in winters (January-April) of the 1970s, which at the time equalled the capacity of the local shore-based fishmeal and oil plants in Iceland. An Icelandic summer capelin fishery began north of Iceland in 1976. In 1978 large capelin schools were discovered by Norwegian scouting vessels in the vicinity of Jan Mayen and since then the fishery on this capelin stock has become of international dimensions with participation by Iceland, Norway, Faroes, Greenland, and EU ships fishing, mainly operating on Greenlandic licences. Since the late 1970s, the annual catch has varied between zero and 1.6 million tons with an average of about 800,000 tons. Catches have been regulated by annual quotas set preliminarily as two thirds of that expected on the basis of autumn assessments of immature fish (next year’s fishable stock) made in the shelf areas NE-, N-, and NW- of Iceland as well as sometimes on the easternmost Greenland plateau, west of the Denmark Strait. An overview of the biology,

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distribution, and migrations of this capelin stock during 1965-2001 was given by Vilhjalmsson (1994, 2002; Fig. 21).

Figure 21. The distribution and migrations of capelin in the Iceland/Greenland/Jan Mayen area 1976-2001. Black: Spawning areas. Dark grey: Juvenile areas. Light grey: Feeding area. White arrows: Feeding migrations. Grey arrows: Return migrations. Black arrows: Spawning migrations. From Vilhjálmsson 2002.

During the last decade the mature capelin have arrived progressively later from feeding in the Iceland Sea to the overwintering areas at the edge and/or on the outer parts of the shelf north of Iceland. Consequently, the once rich autumn fishery has dwindled and during the last five years has been limited to a small area off the eastern north coast during one or two weeks before Christmas. Furthermore, very few immature age 1 and 2 year capelin were located in the traditional areas over the western north Icelandic shelf and northeast of Iceland in 2002, and that situation has prevailed since then (e.g. ICES, 2003, 2004, 2005). Because capelin are one of the mainstays in the diet of Icelandic cod and many other

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local fish species, the summer catch quotas were set at low levels based on findings in late April 2003 and June/July 2004. Since none could be located in the spring or summer of neither 2005 nor 2006 because of drift ice in the Denmark Strait and adjacent areas, there has been a moratorium on the capelin fishery until enough has been found to meet requirements for a remaining spawning stock of 400,000 tons as well as natural mortality. This was the situation in the 2005/2006 season which did not start until late January 2006 and since no maturing capelin have been located in 2006 there is a fishing moratorium in force at present. In the last three years several capelin fishing boats were commissioned to assist the research vessels in locating mature capelin on their way south from the feeding areas in the Iceland Sea in late autumn. Although very large areas were searched each year all searches have failed. The only exception is one vessel which found and followed scattered recordings of capelin up to and along the Greenland shelf north to Scoresby Sound where its progress was halted by ice. These capelin were migrating south over the Greenland shelf, but the search had to be abandoned off Scoresby Sound due to heavy drift ice. It is therefore obvious that the Icelandic capelin have completely changed their juvenile areas in the last few years and adults have probably fed in the westernmost parts of the Iceland Sea instead of in the central part or possibly even further north and east, especially north in the Jan Mayen area between 71°-73°N. The return migration has probably been so close to the Greenland coast that it was overlooked due to storms and ice, both by scouting and research vessels in November. The first indication that there was something afoot came from 0-group fish (age 0) surveys in 2002 and 2003, when practically no 0-group capelin were found except in the Denmark Strait and some 80-100 nautical miles due north of Cape Horn on

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the north coast of the Vestfirdir peninsula, NW-Iceland, respectively. Although the 0-group surveys were disbanded after 2003 we know from other sources that very few capelin have grown on the north Icelandic shelf since then. Because the spawning migrations have also arrived late and tended to stay off the shelf while north and east of Iceland, it follows that access of cod and other fish predators has been much reduced in the last five years compared to earlier times. Unfortunately, we do not have enough detailed environmental data to attempt to explain these changes on that basis. Nevertheless, there seems little doubt that they are connected to a changing environment although the main physical factors still remain to be determined. A theory of the present distribution, drift and migration pattern is shown in Figure 22.

Figure 22. The probable distribution and migrations of capelin in the Iceland/Greenland/Jan Mayen area 2002-2005. Black: Spawning areas. Dark grey: Juvenile areas. Light grey: Feeding area. White arrows: Feeding migrations. Grey arrows: Return migrations. Black arrows: Spawning migrations.

As off Iceland, the Barents Sea capelin spawn at depth in Atlantic water. The main spawning grounds are off the coasts of Finmark (Norway) and Murmansk peninsula (Russsia). These capelin spend their 0-group stage in the southern Barents Sea, but after that feed near and north of the Polar Front which, as described earlier, moves northeast and southwest with the changing inflow of Atlantic water. These capelin may even be found west

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of Svalbard in cold periods. In the same way, the spawning grounds change considerably with climate, being off Finmark when it is cold but moving east to the Murmansk area under warm conditions. It has also been postulated (ACIA 2005) that the center of the summer distribution may shift as far east as Novaja Zemlya in exceptionally warm years (Fig. 23a and b).

Figure 23a and b. Distribution and migrations of Barents Sea capelin under warm (upper panel) and cold (lower panel) conditions. White arrows: feeding migrations. Black arrows: Spawning migrations. Adapted from Vilhjálmsson 1997.

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The abundance of the Barents Sea capelin has been subject to large variations during the last three decades for which we have data. The stock was heavily fished from the late 1960s to the mid-1980s. The stock crashed in 1985 and did not recover again until 1990, when it suddenly increased to its previous high level. There was another crash in 1993, a recovery in 1998 and a third crash in 2005. While the fishery was without doubt a major contributor in the mid-1980s stock crash, the same can not be said of the other stock collapses. As in all marine ecosystems of which they are part, the Barents Sea capelin constitute a very important part of the food of various fish stocks, marine mammals, and birds. The interaction between capelin and its numerous predators is more complicated and larger than in any other ecosystem. The main reasons are the Norwegian spring spawning herring and cod. As mentioned earlier, the Norwegian herring spend their first 3-4 years in the southern Barents Sea and at least from age 1-3 large herring year classes practically eat all the age 0 capelin entering the area. Since cod feeds on young herring it has plenty of food while these large year classes of herring are growing up. However, when the herring leave the area the cod are left with practically no supply of by far the most important food items for 2-3 years, i.e. the time it takes for new year classes of capelin or herring to grow. Because of these tropic interactions and the fact that all of these stocks are prophesized to benefit from a moderately warmer climate, it is extremely difficult to predict what will happen to the capelin stock. Because the Norwegian spring spawning herring usually depend on few large year classes for their maintenance, it is likely that a warmer climate would benefit the Barents Sea capelin in the long run.

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Immigration of Southern Stocks

At the height of warming in the 1930s the occurrence of more southern species became much more frequent than earlier. Off Norway both mackerel and tuna became common species off the northern part of its west coast resulting in a highly profitable tuna fishery off the Norwegian coast. At Iceland the same species became commonplace although a directed fishery was never attempted. Today, haddock which previously had been most abundant off the south coast of Iceland has now shifted to a large degree to north Icelandic waters and monkfish has become fairly common in the north coast fishery where it was very rare a few years back. The recruitment of blue whiting, which spawn mostly west of the British Isles, has been exceptional in the last few years and their juvenile areas expanded, both in the Norwegian Deep and south and west of Iceland. Furthermore, age groups 1-3 have become extremely common and in places plentiful in the mid- and eastern Norwegian Sea, reaching all the way north to west of Svalbard. On the Icelandic side adult blue whiting have become common and occurred in fishable concentrations off the central east coast and also regularly in lesser quantities north of Iceland in later years. A summer herring stock was established off West Greenland in the 1930s and 1940s, spawning on seaweed fronds and in some other shallow locations and saithe and haddock became quite common there at the same time. In other words it is very likely that we will see invasions of more southerly species with rising temperatures with the associated risks of unknown results of competition and pests, which we do not see in Arctic and sub-Arctic areas at present.

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Effects on Fisheries Management

What then is most important in the view of a biologist for an International Law of the Sea in future? A number of important issues come to mind: 1) Northern migratory stocks like herring, capelin and blue whiting will likely increase and change their distributions and migration routes in manners difficult to predict; 2) In doing so these stocks will change their adherence to the various EEZs they occupy at present; 3) There are vast tracts of the world’s oceans still open for the taking of what may be there; 4) These and other migratory species or straddling stocks will travel though the open areas, sometimes many times annually; 5) It has proven difficult to obtain consensus on what to do in such circumstances and unless that can be achieved it will be very difficult to enforce a rational fishing policy; and 6) If a rational fishing policy can not be negotiated and enforced, experience has shown that most stocks will eventually collapse or, at best, give far lower yields than they otherwise would have. But there may be a light at the end of the corridor, based on increased trust between biologists and administrators, both within countries and of course between countries and, hence, this may not be such a hopeless task. When this author began his career as a fisheries biologist some 45 years ago, it was quite common to witness two or more colleagues arguing their cases. These were real arguments that could go on for hours on end and almost never led to agreements or even to the planning of research projects to solve the problem. Today, for example under the ICES and

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NAFO umbrellas, everyone produces whatever data he may possess, the issue is discussed thoroughly and a consensus is reached. Naturally this is not always accomplished, but we do go to great lengths to achieve this. Should there prove to be too many unknown parameters, a proposal for a research project is put forward. As an example we can take a model describing the life history of a species where the fishing rights of different nations have to be determined today. One such model is known as the ‘Hamre Model’. It was first developed and successfully used in negotiations on fishing rights by Norway, Iceland, and Greenland of the capelin stock in the Iceland/EGreenland/Jan Mayen area in the 1980s. This was done by first determining those parts of the stock’s life history we did know and then filling in the remaining pieces of the capelin’s life history we did not know by agreeing on what we thought was the most likely train of events. The results were then fed into the distribution/growth model through which we could see the effects of changing the various unknown parameters. A consensus was reached between the scientists, and the division of TACs, agreed upon by the relevant authorities, was not far from the scientific agreement. The ‘Hamre Model’ or other similar ones, have been used on many occasions since and often been of great help. But a model never turns out better solutions than the data upon which it is based. Unfortunately, part of these are often of poor quality, as researchers have not been given the necessary means to obtain such data. In the view of this author it is paramount to a ‘holy duty’ of governments and administrators to see to it that this is done and thus to answer the call of scientists quickly and efficiently. The importance of this or other negotiation approaches in a timely manner is accentuated by one of the main conclusions of the ACIA report: “under ‘moderate warming’ and

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appropriate management, arctic and sub-arctic stocks could yield about twice they do at present. On the other hand the opposite could just as well happen”.

References Arctic Climate Impact Assessment 2005. Cambridge University Press 2005. 1042 pp. Bergstrøm, B., Vilhjálmsson, H., 2006. Report on the acoustic / pelagic trawl survey off West Greenland for capelin and polar cod with R/V Bjarni Sæmundson during 2 September-6 October 2005. Greenland Institute of Natural Resources, Nuuk. Buch, E., Horsted S.A. and H. Hovgård, 1994. ‘Fluctuations in the occurrance of cod in Greenland waters and their possible causes’, ICES Marine Science Symposia 198:158-174. Carscadden, J.E., K.T. Frannk, and W.C.Leggett, 2001. ‘Ecosystem changes and the effects on capelin (Mallotus villosus), a major forage species’, Canadian Journal of Fisheries and Aquatic Sciences 58:73-85.

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Climate Change, 2001a. Synthesis Report. Contribution of Working Groups I, II and III to the Third Assessment Report of the International Panel on Climate Change. Cambridge University Press 2001. 397 pp. Climate Change, 2001b. Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Third Assessment Report of the International Panel on Climate Change. Cambridge University Press 2001. 1032 pp. Harris, L (Chair), 1990. Independent Review of the State of the Northern Cod Stock: Report prepared for the Minister of Fisheries Communicstions Directorate. Canada Department of Fisheries and Oceans, Ottawa. 154 pp + appendices. Hylen, A, 2002. ‘Fluctuations in abundance of Northeast Arctic cod during the 20th century’, ICES, Mar. Sci. Symp. 215:543-546. ICES 2004. Report of the Northern Pelagic and Blue Whiting Fisheries Working Group. ICES CM 2004/ACFM:24, p 122-139 ICES, 2002. Report of the Northern Pelagic and Blue Whiting Fisheries Working Group. ICES CM 2002/ACFM:19, p 136-152 ICES, 2003. Report of the Northern Pelagic and Blue Whiting Fisheries Working Group. ICES CM 2003/ACFM:23, p 141-152 ICES. 2005a. Report of the Arctic Fisheries Working Group (AFWG), 19 28 April 2005, Murmansk, Russia. ACFM:20. 504 pp. ICES. 2005b. Report of the Northwestern Working Group (NWWG), 19 28 April 2005, Murmansk, Russia. ACFM:20. Chapter 11. Jakobsson, J., 1964. Recent developments in the Icelandic purse-seine herring fishery. Modern Fishing Gear of the World 2, p. 294-395. Fishing News Books, Oxford. Jakobsson, J., 1980. ‘Exploitation of the Icelandic spring- and summerspawning herring in relation to fisheries management, 1947-1977’, Rapp. P.-v. Reun. Cons. Int. Explor. Mer, 177:23-42. Jakobsson, J., 2000. Síld (Herring. In Icelandic). Námsgagnastofnun og Hafrannsóknastofnunin, Reykjavík 2000. 8 pp.

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Jakobsson, J., and G. Stefánsson, 1999. ‘Management of Icelandic summer spawning herring off Iceland’, ICES Journal of Marine Science 56:827-833. Jensen, A.S., 1926. Indberetning av S/S Dana’s praktisk videndskabelige fiskeriundersøgelser ved Vestgrønland i 1925. Beretninger og Kundgørelser vedr. Styrelsen af Grønland (in Danish). 2:291-315. Kjesbu, G.S., H. Kryvi, S. Sundby, and P. Solemdal, 1992. ‘Buoyancy variations in eggs of Atlantic cod (Gadus morhua L.) in relation to chorion thickness and egg size: theory and observations’, J. Fish Biol., 41:581-599. Marteinsdottir, G. and G. Begg, 2002. ‘Essential relationships incorporating the influence of age, size and condition on variables required for estimation of reproductive potential in Atlantic cod Gadus morhua stocks’, Marine Ecology Progress Series, 235:235-256. Marteinsdottir, G., and A. Steinarsson, 1998. ‘Maternal influence on the size and viability of Iceland cod (Gadus morhua L.) eggs and larvae’, J. Fish Biol., 52(6):1241-1258. Ottersen, G., and S.Sundby, 1995. ‘Effects of temperature, wind and spawning stock biomass on recruitment of Arcto-Norwegian cod’, Fisheries Oceanography, 4:278-292. Rose, G.A. and O'Driscoll, R.L. 2002. ‘Capelin are good for cod:can Newfoundland cod stocks recover without capelin?’, ICES Journal of Marine Science 59: 1018-1026. Rose, G.A., 2004. ‘Reconciling overfishing and climate change with stock dynamics of Atlantic cod (Gadus morhua) over 500 years’, Can. J. Fish. Aquat. Sci., 61, 8: pp 1553-1557. Sæmundsson, B., 1934. ‘Probable influence of changes in temperature on the marine fauna of Iceland’, ICES Rapports et Procès-Verbaux des Réunions, 86:3-6. Sætersdal, G. and H. Loeng, 1987. ‘Ecological adaptation of reproduction in Northeast Arctic cod’, Fish. Res., 5: 253-270.

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Schmidt, J., 1931. ‘Summary of the Danish marking experiments on cod, 1904-1929, at the Faroes, Iceland and Greenland’, Rapp. P-v. Reun.Cons.perm.int.Explor.Mer, 72. 13 pp. Schopka, S.A., 1994. ‘Fluctuations in the cod stock off Iceland during the twentieth century in relation to changes in the fisheries and environment’, ICES Marine Science Symposia, 198:175-193. Smed, J. 1965. ‘Variations of temperature of the surface waters of the northern North Atlantic’, Rapp. et Proc. Verb. ICES 112: 77-94. Sundby, S., 2000. ‘Recruitment of Atlantic cod stocks in relation to temperature and advection of copepod populations’, Sarsia, 85:277-289. Toresen, R., and O.J. Østvedt, 2000. ‘Variation in abundance of Norwegian spring spawning herring (Clupea harengus) throughout the 20th Century and the influence of climate fluctuations’, Fish and Fisheries, I:231-256. Vilhjálmsson, H., 1994. The Icelandic Capelin Stock. Capelin (Mallosus villosus, Müller) in the Iceland-Greenland-Jan Mayen area. Reykjavík. 281pp. Vilhjálmsson, H., 2002. ‘Capelin (Mallotus villosus) in the Iceland-East Greenland-Jan Mayen ecosystem’, ICES Journal of Marine Science. Vol. 59, 5:870-883. Vilhjálmsson, H.,1997. ‘Climatic variations and some examples of their effects on the marine ecology of Icelandic and Greenland waters, in particular during the present century’, Rit Fiskideildar, 15(1):7-29.

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Improving International Relations Through Marine Science Partnerships Dr. Michael P. Crosby 1

ABSTRACT The United Nations Convention on the Law of the Sea (UNCLOS) contains 40 Articles that apply in varying degrees to marine science and technology. UNCLOS signatories and international organizations are encouraged to enter into bilateral and multilateral agreements to create favorable conditions for marine science research. Marine Science has demonstrated its clear utility for providing an improved knowledge base on which informed marine and coastal resource management decisions can and should be based. However, marine science partnerships and cooperation also have great potential to serve as a vehicle for improving international relations, and UNCLOS encourages signatories to promote marine science capacity building in developing countries. A new paradigm for interactions between scientists and resource managers through international marine science partnerships was implemented as part of the Red Sea Marine Peace Park Cooperative Research, Monitoring and Resource Management (RSMPP) Program. The RSMPP Program may serve as a model for improving international relations and building capacity through marine science cooperation. Specific suggestions for sites that may be considered as candidates for this model in other regions of the world are discussed. The value of international science and engineering (S&E) partnerships is also of interest to the U.S. National Science Board (the Board) as it has recently undertaken an effort to examine the role of the U.S. 1

Executive Director, National Science Board, Arlington, Virginia. The views expressed in this manuscript are those of the author and do not necessarily reflect the official views or policies of the National Science Board. The author’s PowerPoint presentation can be viewed on the accompanying CD.

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Government in supporting international S&E partnerships in response to the changes that have occurred in recent years to the global dynamics for S&E research, education, politics, and technical workforce. National Science Board recommendations in this regard will have particular focus on the utility of S&E partnerships to yield more than just excellence in science.

INTRODUCTION The United Nations Convention on the Law of the Sea (UNCLOS) entered into force in 1994 and currently has 151 Parties, although it remains pending for U.S. Senate ratification. 2 Two of the 17 Parts of UNCLOS specifically apply to marine scientific research (Part XIII) or the development and transfer of marine technology (Part XIV), with 40 specific Articles in the Convention addressing to varying degrees marine science and technology. Foci for some of these UNCLOS Articles include: x

Encourages bilateral and multilateral agreements to create favorable conditions for marine scientific research (Article 243);

x

Promotes marine science and technology capacity building, particularly in developing countries (Articles 266, 268, 269);

x

Encourages facilitation of international cooperation in marine scientific research and development (Article 270); and

2

For a more complete overview, see: Commentary on U.N. Convention on Law of the Sea. Georgetown Int’l Envtl. Law Review, 1994-1995, Vol 7:77-194

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x

Encourages establishment of regional marine science and technology centers, particularly in developing countries (Articles 276, 277).

UNCLOS signatories and international organizations are encouraged to enter into bilateral and multilateral agreements to create favorable conditions for marine science research.

Marine scientific research is

distinguished in the treaty from hydrographic survey, military activities (including military surveys) and from prospecting and exploring. Marine science has demonstrated its clear utility for providing an improved knowledge base on which informed marine and coastal resource management decisions can and should be based. However, marine science partnerships and cooperation also have great potential to serve as a vehicle for improving international relations, and UNCLOS encourages signatories to promote marine science capacity building in developing countries. The value of international science and engineering partnerships is also of interest to the U.S. National Science Board (the Board) 3 . The Board was established by Congress in 1950, and is composed of 24 members, all of whom are Presidential appointees who have been confirmed by the Senate. The Director of National Science Foundation (NSF) is an additional ex officio member of the Board.

The National Science Board has two

important statutory sets of responsibilities: x

It serves as an independent body of advisors to both the President and Congress on broad national policy issues related to science and engineering research and education, as the Board, the Congress or the President determine is needed.

3

Further information about the National Science Board may be found at: www.nsf.gov/nsb

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x

It provides oversight for, and establishes the policies of, the National Science Foundation.

In accordance with both these roles, the Board has established a Task Force on International Science 4 because it believes that the United States benefits from being a full partner in the global science enterprise.

In

September 2001, the Board released a report entitled, Towards a More Effective Role for the U.S. Government in International Science and Engineering 5 . Many of the recommendations from this report remain valid, although largely unfulfilled. Since the time that report was prepared, there have also been considerable shifts in the international landscape, including many changes that have occurred in the global S&E dynamics related to research, education, politics, and technical workforce. These shifts, along with the unfulfilled recommendations of the 2001 report, warrant a careful re-examination of how the United States engages in these partnerships and the role of the U.S. Government in supporting such international S&E partnerships. In particular, the Board’s task force will study issues related to how these partnerships might be used to achieve benefits beyond just doing “good science”.

In addition to developing specific guidance for NSF

programs, the Board expects to develop broader policy recommendations for the role of the U.S. Government in: x

Facilitating partnerships between U.S. and non-U.S. scientists and engineers in the U.S.;

4

Further information about the National Science Board Task Force on International Science may be found at: www.nsf.gov/nsb/committees/is_charge.htm 5 NSB01-187. 2001. Toward a more effective role for the U.S. Government in International Science and Engineering. National Science Board. 64 pp.; this report may be downloaded at: http://www.nsf.gov/nsb/documents/2002/nsb01187/start.htm

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x

Facilitating partnerships between U.S. and non-U.S. scientists and engineers outside the U.S. in both developed and developing countries;

x

Utilizing S&E partnerships for improving relations between countries; and

x

Utilizing S&E partnerships for improving quality of life and environmental protection in developing countries.

The role of U.S. and international students will be considered throughout all task force activities. As the world of scientific research becomes increasingly global and intensely competitive, it is important to establish an environment for future generations of researchers to perform in a more ‘globally aware” manner. Future generations of researchers will need to be more cognizant of, and be able to successfully address, the various international and cultural issues that may influence the development and implementation of S&E partnerships.

INTERNATIONAL MARINE SCIENCE PARTNERSHIPS

There are a number of successful international marine science partnerships and specific models that should be considered for implementation in other regions of the world. Often, such partnerships developed between nations are built upon a long history of close ties and cooperative relationships. An example of this type of international marine science partnership exists between Ireland and the United States. However, marine science partnerships have also been demonstrated to not only support the conduct of excellence in cooperative research, but also to serve as vehicles for improving relationships between nations. When marine science partnerships are developed and implemented between nations

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having limited or historically tense relationships, these partnerships may be viewed as “confidence building measures” or “confidence and security building measures” in the context discussed more extensively by Kraska 6 . The extended premise is that joint acquisition and distribution of knowledge through international marine science partnerships serve to bring transparency to what may otherwise be opaque relationships between nations. Transparency builds trust and confidence, and reduces tension, even if the parties still “agree to disagree” on the underlying substantive issues. International marine science partnerships can also lead to an everexpanding circle of issues that build constituencies by broadening the numbers

and

types

of

participants,

including

governments

and

nongovernmental organizations. The partnerships tend to include an array of scientific, technical, environmental, ecological, legal, administrative, and economic interests.

The involvement of all of these interests has a

progressive effect, helping to improve foreign relations between governments and build goodwill between peoples of different nations.

Ireland-U.S. Marine Science Partnership The U.S. National Oceanic and Atmospheric Administration (NOAA), has been a partner with the Marine Institute of Ireland since the 1995 signing of a Joint Statement for Conducting Marine Research and Technology Development. The natural trans-boundary characteristics of the marine environment being studied as part of this partnership effort also offered exciting possibilities in furthering the peace process in Ireland at that time.

The collaborative program is now in its twelfth year and

continues to foster the exchange of ideas, and to improve understanding of 6

Kraska, J. C. 2003. Sustainable Development is Security: Transboundary River Agreements as a Confidence Building Measure in South Asia. Yale Journal of International Law 28(2): 465-503.

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the marine ecosystem through focused partnership projects on ecological assessment of fisheries recruitment, harmful algal events, salmon migration, collaboration in ocean data management, the use of remote sensing, and oceanographic modeling. It is expected that the new knowledge gained from these joint ecological studies will also assist private enterprises in the United States and Ireland to be better positioned to sustainably utilize both countries’ marine resources, and provide new technology development opportunities.

During the period of this partnership effort, the Marine

Institute of Ireland has also benefited from the Irish commitment to increasing its understanding of its significant marine resources in order to provide for its conservation and sustainable use of these valuable resources.

Jordan-Israel Marine Science Partnership Israel and Jordan share approximately 41 km of shoreline around the Northern Gulf of Aqaba and are promoting this region as a tourism destination center with water projects, free zones, and other coastal infrastructure developments that are accelerating already rapid population growth and commercial development rates. The cities of Eilat, Israel and Aqaba, Jordan, mere outposts with little development in the 1950s, have shown phenomenal growth rates during the last twenty years, with populations that nearly double during the peak tourist seasons. The port in Aqaba is Jordan's only marine access, and Eilat's port provides Israel with its only direct access to the Red Sea and Indian Ocean. Shipping traffic in the Northern Gulf of Aqaba is expected to nearly double during the next 10 years. Coastal development, industrial and commercial activities in the Gulf have also been increasing, with development of oil, marina, mineral export and other industrial facilities. Free trade zones have been established

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and potential major projects like the Red Sea to Dead Sea Canal are contemplated. These activities, many of which provide enormous economic development opportunities for both countries, could potentially have significant harmful impacts on the Gulf's coral reef ecosystem with subsequent overall negative economic impacts from loss of tourism. Each country's individual development policies impact the other's marine resources and their ability effectively to manage those resources. Managers from the region have begun developing policies and regulations for their coastal and marine environment, with support from their national governments and international assistance. Working independently has only provided the countries with an understanding of pieces of a common seascape and coastal environment, which inhibits effective management of their marine resources. In 1994, the Peace Treaties between Israel and both Jordan and Egypt opened borders, and trade, transportation, and exchanges on all levels have increased between the countries. Through this peace treaty process, Israel and Jordan developed the Bi-national Red Sea Marine Peace Park (RSMPP) in the Gulf of Aqaba, embodying the coral reserves of both Aqaba and Eilat. The RSMPP includes the Coral Reef Reserve in Eilat, a managed protected area extending along approximately two km of Israeli coastline, and the Aqaba Marine Park, a managed protected area extending along approximately seven km of Jordanian coastline. The establishment of the RSMPP called on the parties to partner in research efforts on coral reefs and marine biology, and implement comparable policies and regulations designed to protect the coral reefs (i.e., soundly managed from an ecological point of view) as a tourist attraction.

A December 1996 workshop in

Aqaba, Jordan identified priority management and science issues in the Gulf

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of Aqaba, leading Israel and Jordan to subsequently develop a joint project that would address these issues, and build the framework for a longstanding working relationship between the coral reef management and research institutions of the two countries. To facilitate the incorporation of new and existing knowledge into trans-boundary Gulf of Aqaba management and policy decisions, a pioneering effort to employ and test a new paradigm for interactions between managers, scientists, and the public regarding marine and coastal protected areas 7

and 8

was implemented through the Red Sea Marine Peace

Park Cooperative Research, Monitoring and Management Program (RSMPP Program).

The RSMPP Program 9,

10 , 11 , and 12

was a joint

undertaking between the government of Israel and the Hashemite Kingdom of Jordan that fostered trans-boundary cooperation leading to greater 7

Crosby, M. P., R. Bohne and K. Geenen. 2000. Alternative access management strategies for marine and coastal protected areas: A reference manual for their development and assessment. U.S. Man and the Biosphere Program. Washington, DC. 164 pp. 8 Crosby, M. P., D. Laffoley, C. Mondor, G. O’Sullivan and K. Geenen. 1997. Proceedings of the Second International Symposium and Workshop on Marine and Coastal Protected Areas: Integrating Science and Management. Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, Silver Spring, MD, USA. 247 pp. 9 Loya, Y., S. M. Al-Moghrabi, M. Ilan and M. P. Crosby. 1999. The Red Sea Marine Peace Park Coral Reef Benthic Communities: Ecology and Biology monitoring program. pp. 239-250. In: Maragos,J.E. and R. Grober-Dunsmore (eds). Proceedings of the Hawai'i Coral Reef Monitoring Workshop, June 9-11, 1998, Honolulu, Hawai'i. Division of Aquatic Resources, Department of Land and Natural Resources, Hawaii State Government 10 Crosby, M. P., A. Abu-Hilal, A. Al-Homoud, J. Erez, and R. Ortal. 2000. Interactions among scientists, managers and the public in defining research priorities and management strategies for marine and coastal resources: Is the Red Sea Marine Peace Park a new paradigm? Water, Air and Soil Pollution 123: 581594. 11 Zimmer, C. 2001. The Partitioning of the Red Sea. Science. 293:627-628. 12 The Red Sea Marine Peace Park Cooperative Research, Monitoring and Management Program final report may be downloaded from: http://www.iui-eilat.ac.il/peaceParkUnlocked/data/Final%20rsmpp%20report.pdf

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conservation and sustainable use of the outstanding coral reef ecosystem resources.

This unique program was initiated in full partnership with

resource management agencies and marine research institutions in Israel and Jordan and was facilitated through the United States. The overall goal of the RSMPP Program was to provide resource managers in Israel and Jordan the scientific understanding of the basic physical, chemical, and biological processes in the Gulf of Aqaba, and the impacts of human activities on those resources and processes.

This

cooperative venture enabled the countries to develop and evaluate the effectiveness of their management efforts. The project helped to strengthen the management and administrative abilities of the marine park staff offices to implement similar policies and regulations, and establish stronger communication and cooperation efforts between the countries' scientific community and resource managers. Under the RSMPP Program, scientific institutions in Jordan and Israel worked together, using comparable methodologies, research protocols, and integrated data management to develop a comprehensive data set that facilitates analysis of the Gulf's condition, so that management is able to make comparable assessments and policies. The lessons learned through the RSMPP Program can be broadly summarized into three categories: x

Improved communication and partnership between and amongst managers and scientists;

x

Strong outreach and education program; and

x

Integrated research and monitoring data into management decisions.

The RSMPP Program serves as an example of a new paradigm for the interaction and role of integrated, multi-disciplinary science, resource management, and education/outreach efforts to facilitate the incorporation

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of new and existing knowledge into marine protected area management and policy decision-making. The foundation for this new paradigm is still based on objective use of the scientific method, with identifying and establishing priority questions and translation and transfer of scientific data blended into user-friendly formats. Implementing this new paradigm has required that applied research and technical development become a priority within the research community at the Jordanian and Israeli marine laboratories. Scientists and managers must work together as a team to identify and understand the ecological, economic, and social driving forces behind the loss of marine biodiversity and the destruction of marine and coastal ecosystems. The RSMPP Program strengthened the regional capability for marine science, information exchange, and national decision-making regarding resource management, protection, and development for the Gulf of Aqaba. It laid the groundwork for a long-standing working relationship by increasing the level of communication and cooperation, building the technical capacity of both countries for continuing a long-term, coordinated research and monitoring program, and educating the public about the Gulf's resources and the joint work of the two countries in protecting those resources. The Program also helped to strengthen the management and administrative abilities of the marine park staff offices to implement similar policies and regulations, and establish stronger communication and cooperation efforts between the countries' scientific community and resource managers. Under the RSMPP Program, scientific institutions in Jordan and Israel are working together in a systematic fashion for the first time using comparable methodologies, research protocols, and integrated data management to develop a comprehensive data set that facilitates analysis of the Gulf's condition, so that management is able to make

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comparable assessments and policies. Some more specific lessons learned include the following: x

The guiding entity for ensuring communication and partnership between and amongst resource managers and scientists should be a small Steering Committee, composed of lead scientists and resource managers, that meets at least twice per year to jointly establish Program priorities, and jointly develop implementation plans with clear milestones for achievement.

x

Improved communication, sharing of expertise, and building camaraderie are greatly facilitated through twice-yearly meetings in which all researchers, technicians, graduate students, and staff associated with the Program meet jointly to exchange updates on specific activities, give formal presentations of their work, and discuss ideas for additional joint efforts and publications. These meetings should be in addition to more routine informal smaller joint meetings and discussion amongst specific topic area participants.

x

Agreement on common methodologies and coordination for all data acquisition activities is essential for integration of data to provide a trans-boundary seascape level understanding of the ecological processes of the marine environment being studied. While separate but coordinated field work using common methodologies and intercalibrated instruments will support this effort, regular joint field research activities provide greater confidence in data comparability and enhance camaraderie between and amongst participants.

x

In any facet of natural resource management it is extremely important to identify and understand the economic and social driving forces (i.e., the human element) behind the loss of

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biodiversity and non-sustainable use of resources. Involvement of the local community in volunteer monitoring activities improves the sense of local “ownership” of the resources and serves as an important tool for education of the local community about the ecological interactions that are inherent in these systems. x

Routinely providing the public with updated findings and assessments in a user-friendly format greatly assists with improving a public understanding of the value of science in promoting longterm conservation and sustainable use of natural resources. International conferences can provide a venue for representatives of programs such as ours to transfer experiences to other regions, as well as to develop interest in potential donor institutions.

x

Establishment of an external Review Committee to provide periodic assessments of the partnership program is valuable for ensuring scientific

objectivity,

providing

new

perspective

for

data

interpretation, and examining the effectiveness and efficiency of data translation and transfer to the resource management community. x

A mechanism for ensuring sustainability of programs that are initiated with funds from donor institutions is essential.

x

The critical foundation for success in any program seeking to employ the new paradigm for interactions between and amongst scientists, resource managers, and the public is an integrated data management system with appropriate quality assurance and quality control. This provides the basis for translation and transfer of data from

research

and

monitoring

components

into

resource

management and policy decisions. Minimal types of information for such a database include: a) basic physico-chemical and

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biological patterns and b) comprehensive mapping of all significant ecosystem components with an initial base-line assessment of condition. At the very least, using such a database to produce GIS, data visualization products and validated predictive models should be goals. x

Finally, and perhaps the most important lesson learned is that the paradigm for managing marine resources must shift from a: a) fragmented to an integrated approach, b) site-specific to an ecosystem-wide context, and c) reactive to a pro-active mode.

The RSMPP Research Partnership program has been very successful in improving international relationships while also conducting excellent science. The key to success for the new paradigm being implemented through the RSMPP Program is integration of science and management. The lessons learned through the RSMPP Program and its new paradigm approach for interactions between and amongst scientists, resource managers, policy makers, and the public are transferable and have applicability for promoting similar trans-boundary partnerships around the world.

Middle East Region Marine Science Partnerships In 2002, the Hashemite Kingdom of Jordan, with the Royal Patronage of His Majesty King Abdullah II bin Hussein, officially sponsored the Middle East Regional Science Symposium and Workshop: Butterflyfish (Family Chaetodontidae) Research and Monitoring. The Jordanian Aqaba Special Economic Zone Authority, the University of Jordan, Yarmouk University, and the Aqaba Marine Science Station partnered with the U.S. NOAA to co-host this conference. The U.S. Department of State also

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provided additional moderate financial support.

The purpose of this

Regional Science Symposium and Workshop was to: x

develop a scientific consensus on the state of knowledge dealing with butterflyfish in Middle East coral reef ecosystems;

x

share experiences and insights between and amongst Middle East scientists, and colleagues from throughout the Indo-Pacific, regarding the use of butterflyfish as indicators of ecological conditions (‘health’) of coral reefs;

x

identify priorities for future local and regionally based butterflyfish research and monitoring; and

x

discuss the potential for developing a regional butterflyfish monitoring database that would serve as a focal point for examining local and regional trends for changes in coral reefs.

Butterflyfish serve as the focal point for many coral reef research and monitoring efforts through the Indo-Pacific in general, and the Middle East region more specifically.

However, despite many informal discussions

among leading butterflyfish researchers that have identified the value in organizing a formal science symposium on the state of research and monitoring of fishes of the family Chaetodontidae, there had never been such a symposium held at an international level in this region. The Middle East Regional Science Symposium and Workshop: Butterflyfish (Family Chaetodontidae) Research and Monitoring was the first step in attempting to coordinate and link various butterflyfish projects in the Middle East with other similar efforts that are underway, planned, or completed in the region. More than 100 dignitaries, officials, scientists and students participated in this forum. The involvement of key scientists from throughout the broader Indo-Pacific region in the symposium presentations and workshop

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discussions facilitated the creation of an international ‘virtual’ transect of knowledge exchange running from the Gulf of Aqaba/Red Sea/Persian Gulf region to South Africa and across the Indian Ocean to various Pacific Islands. Participants (Figure 1) in the conference included representatives from Bahrain, Egypt, Eritrea, Israel, India, Iran, Jordan, Lebanon, Malaysia, New Caledonia, Saudi Arabia, South Africa, Scotland, and the United States.

Figure 1. Scientists and students participating in the Middle East Regional Science Symposium and Workshop, 2002.

A principal product of the symposium and workshop was the publication of a special issue of the science journal Aquatic Conservation Marine and Freshwater Ecosystems 13 containing full-length peer-reviewed papers based on symposium presentations and workshop discussions. These research papers represent contributions of scientists from throughout the Middle East region and the broader Indo-Pacific. There were also formal presentations during the Symposium that did not lead to published manuscripts in this special edition. Important outcomes of the conference included a general consensus on 13

Crosby, M.P., E.S. Reese and M. Khalaf (eds). 2005. Special Issue: Butterflyfish Research and Monitoring in the Middle East and Beyond; Aquatic Conservation Marine and Freshwater Ecosystems. John Wiley & Sons Interscience, West Sussex, UK. 141 pp.

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the unique value of obligate corallivore butterflyfish as indicators of changing conditions in coral reefs in the Middle East region. Collectively, workshop participants felt their combined experiences in the region supported the general premise of the butterflyfish indicator species hypothesis. 14,

15, and 16

However, they also recommended that further

regional specific research (i.e. relationship of physiological stress levels in coral with butterflyfish population dynamics) is needed to confirm the utility of any specific obligate corallivore butterflyfish as an ‘early warning system’ for stress in corals. Several specific areas of focus were recommended. Specific suggestions were made to initiate more extensive studies to: x

better document and elucidate the behavioral traits (i.e. feeding rates, territory size and agonistic encounters) of the Middle East regional candidate indicator chaetodontid species Chaetodon austriacus,

C.

melannotus,

C.

paucifasciatus

and

C.

nigropunctatus; x

determine chaetodontid biomass estimates as part of monitoring programs in order to determine whether carrying capacity of the habitat has a stronger impact on biomass than on the number of

14

Crosby, M. P. and E. S. Reese. 1996. A Manual for Monitoring Coral Reefs With Indicator Species: Butterflyfishes as Indicators of Change on Indo-Pacific Reefs. Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, Silver Spring, MD. 45 pp. (accompanied by a twenty minute video). 15 Reese, E. S. and M. P. Crosby. 1999. The use of indicator species for coral reef monitoring. pp. 121-128. IN: Maragos, J. E. and R. Grober-Dunsmore (eds). Proceedings of the Hawai'i Coral Reef Monitoring Workshop, June 9-11, 1998, Honolulu, Hawai'i. Division of Aquatic Resources, Department of Land and Natural Resources, Hawaii State Government. 16 Crosby, M. P. and E. S. Reese. 2005. Relationship of habitat stability and intraspecific population dynamics of an obligate corallivore butterflyfish. Aquatic Conserv: Mar. Freshw. Ecosyst. 15:13-25.

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individual butterflyfish; x

examine whether combined use of butterflyfish species richness and abundance is also promising as a proxy of total reef fish density and biomass estimates; and

x

determine the pre- and post-settlement process and factors responsible

for

controlling

the

structure

of

butterflyfish

assemblages. Studies such as those recommended at the workshop should include data gathered on corallivore butterflyfish behavior on both stressed reefs and healthy, unstressed reefs. It is the deviation from ‘normal’ behavior that workshop participants felt would be indicative of potential change to the entire coral reef in question. For instance, deviation from unstressed baseline characteristics, along with observation of early bleaching corals such as Montipora spp. and branching Acropora spp., may be highly likely to indicate the coming of a major coral bleaching event. There was also clear agreement and strong support among workshop participants for the creation of a regionally coordinated effort to develop an initial baseline set of shared data on a spatial range from the Gulf of Aqaba, through the Red Sea, around the Arabian Peninsula, and up into the Persian Gulf. There was a feeling among participants that there probably exist other limited regional databases from studies and monitoring programs that, although not specifically designed to focus on obligate corallivore butterflyfish, could be ‘mined’ for useful information. Such an effort would need to allow for remote accessing of data by all participants and standardized data management techniques for quality control and quality assurance. As a first step in the possible creation of such a regionally coordinated

monitoring

and

data-management

program,

workshop

participants pledged to implement the standardized methods outlined in the

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draft butterflyfish monitoring manual 17 in their home countries’ coral reef monitoring programs. Workshop participants were unanimous in their support for the value of establishing a long-term reef monitoring program for the Middle East region using butterflyfishes, in addition to other international coral monitoring techniques, aimed at helping marine and coastal resource management authorities in decision-making about the future of countryspecific and regionally connected coral reef systems. At the close of the workshop, participants also recommended that a subsequent regional conference be held in one or two years to discuss the results of their efforts to implement such monitoring programs, and the potential for establishing a coordinated

Middle

East

regional

butterflyfish

monitoring

data-

management program to share data helpful for developing a regional perspective of trends and status of relationships between butterflyfish and coral reefs. In this sense, there was a general feeling that butterflyfishes could indeed serve as ambassadors at large for coral reef health in the Middle East region. If marine science can serve as a vehicle for bringing parties together in the Middle East, it certainly has promise to do the same elsewhere in the world.

CANDIDATES FOR TRANS-BOUNDARY MARINE SCIENCE PARTNERSHIPS

The lessons learned through the RSMPP Program and its new paradigm approach for interactions between and amongst scientists, resource managers, policy makers and the public are transferable and have 17

Khalaf M., Crosby M. P., Reese E. S. (in prep.) A Manual for Utilizing Butterflyfish as Indicators of Changing Conditions in Coral Reefs of the Middle East. Marine Science Station, Aqaba, Jordan.

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applicability for promoting similar trans-boundary partnerships around the world 18 . Candidate sites for cooperative trans-boundary marine protected area research, monitoring and management programs may include: x

Eastern Caribbean Island States;

x

Multi-national in the Pratas Island/Spratly Islands region;

x

Gaza and Israel on the Mediterranean coast;

x

Pakistan and India near the Indus River delta region; and

x

The former Republics of Yugoslavia on the Adriatic Sea

x

Greece and Turkey on Cyprus.

Eastern Caribbean Region Marine Partnership Potential Within the Caribbean, marine protected areas are increasingly being seen as tools for managing resource use with regard to coral reef fisheries and thus, a number of fairly new marine protected area initiatives are taking place which are seen as part of the action strategy for the management of the use of a number of fisheries resources. A role for marine protected areas in biodiversity conservation in the Caribbean region has also been identified. The St. George’s Declaration of Principles for Environmental Sustainability in the Organization of Eastern Caribbean States has enunciated a number of principles that pertain to promoting conservation 18

Crosby, M. P., B. Al-Bashir, M. Badran, S. Dweiri, R. Ortal, M. Ottolenghi, A. Perevolotsky. 2002. The Red Sea Marine Peace Park: Early lessons learned from a unique trans-boundary cooperative research, monitoring and management program. Proceedings of the fourth conference on the Protected Areas of East Asia – Benefits Beyond Boundaries in East Asia, March 18-23, 2002, Yangmingshan National Park, Taipei, Taiwan. p. 233-248.

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and expanding eco-tourism in the marine environment.

Against the

backdrop of limited budgets and staff resources local eastern Caribbean marine resource management agencies and academic research institutions have expressed a strong need for an effort to help them coordinate available information (coral reef fisheries and benthic habitat assessments, sources and sinks related to ocean currents, in situ and remotely obtaining physicochemical characteristics) that may be utilized in evaluation of candidate sites for coral reef fisheries reserves and other marine protected areas in the region.

These same local officials have also requested assistance in

improving regional capacity for monitoring and assessing marine habitats, and data management and synthesis to fill priority gaps in the information base (i.e., local and regional circulation patterns). Additionally, a need has been expressed for assistance in developing a coordinated geo-spatial references inventory and data management program of available marine fisheries related information. In support of this, a strategic, collaborative, and small scale pilot intervention was initiated 19 in the eastern Caribbean, with the Natural Resources Management Unit of the Organization of Eastern Caribbean States, U.S. NOAA’s National Marine Fisheries Service, University of the West Indies’ School of Graduate Studies and Research, Caribbean Conservation Association, U.S. Agency for International Development and the U.S. Department of State.

East Asia Region Marine Partnership Potential The Spratly and Paracel Islands consist of 51 islands with 100-200 islets, coral reefs, and seamounts in a 250,000 sq km total seascape that has no indigenous human inhabitants, is largely unexplored, and is limited to a 19

Murray, P. A., N. Daves, and M. P. Crosby. 2003. Promoting long-term sustainable use and conservation of marine resources in the Eastern Caribbean—A regional collaborative project. 54th Proc. Gulf Carib. Fish Inst. 72-83.

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peak height of about 4 m above sea level. The approximately 5,752 sq km Spratly and Paracel Islands coral reef environment is relatively pristine with high levels of biodiversity and serves as a source of larvae for degraded reefs in the region. However, 100% of these reefs are at medium to high threat level (blast fishing, fishing poisons, and shark fishing), and see approximately 1,840 passages of supertankers (>160,000 DWT) w/ 465 million DWT crude capacity on an annual basis.

The region is also

estimated to contain 17.7 billion tons of oil and natural gas, which if confirmed would be the 4th largest reserves in the world. China, Malaysia, Philippines, Taiwan, and Vietnam all have claims to the Spratly Islands, while China, Taiwan, and Vietnam claim the Paracels. These overlapping claims on natural marine resources with such significant potential value may lead to bilateral and regional tensions. The 4th Conference on the Protected Areas of East Asia, held in Taiwan in 2002, officially adopted a recommendation of the Marine Session that states: Following the example of the Red Sea Marine Peace Park Research, Monitoring and Management Program, recommend that APEC consider designing and implementing an international cooperative research and monitoring program to focus on the Spratly Islands marine environment with the goal of establishing marine protected areas. A Special Forum on Spratly Islands environmental issues that was held at the 10th Pacific Congress on Marine Science and Technology (PACON) in 2002 led to a consensus recommendation that PACON should: Establish a Scientific Committee to Promote Collaboration and Cooperation between Scientists through Scientific Fora, with a Focus on the Protection of the Spratly Islands Marine Environment.

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The role that UNCLOS can or should play in promoting the use of the Red Sea Marine Peace Park Research Partnership model for improving international relations in the suggested candidate sites, or other regions, remains open for discussion. However, UNCLOS Parties would seem to have a rationale for considering this option to build on the strong base of success achieved by the Red Sea Marine Peace Park Research Partnership Program.

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Global Ocean Observatories John A. Orcutt 1 Abstract Numerous national and international programs are seeking to develop global ocean observatories. Perhaps one of the most successful of the current programs is Argo, which grew from the World Ocean Circulation Experiment (WOCE). WOCE was originally formed as part of the World Climate Research Program (WCRP) sponsored, in turn, by the International Council for Science (ICSU). Argo is not actually an acronym, but derives from Greek mythology in which Jason sailed in a ship named “Argo” to capture the Golden Fleece. In modern day, JASON refers to the satellite altimetry mission used to map large-scale ocean currents. On 3 July 2006 there were 2471 operational floats at sea sampling the upper 2,000m of the global ocean. When complete, 3,000 profiling floats will be in use although continuing replenishment of profilers will be necessary into the foreseeable future. Participation in Argo has been truly international with 24 countries supplying floats and several others participating in launching the vehicles. The newest United States observatory program is the National Science Foundation’s (NSF) Integrated Ocean Observing Initiative (OOI), which is the NSF’s contribution to the Integrated and Sustained Ocean Observing System (IOOS). The OOI is funded in this year’s federal budget as a NSF Major Research Equipment and Facilities Construction program (MRE-FC) with a budget of $309.5M over a period of six years. The OOI comprises four components including global, regional, and coastal observatories all integrated through a modern cyber infrastructure designed to meet all the requirements of the Global Earth Observing System of Systems (GEOSS). In establishing and maintaining observatories on a global basis, international governance must deal with a confusing, overlapping assemblage of international committees and commissions. This includes the Global Ocean Observing System (GOOS), a child of the International Oceanographic Commission (IOC) of UNESCO. IOOS is the US contribution to GOOS. To complicate the picture, including all the acronyms mentioned above, the G-8 initiated the Global Earth Observing System of Systems (GEOSS) in June 2003 noting the importance of Earth 1

Deputy Director, Scripps Institution of Oceanography. The author’s PowerPoint presentation and a video clip on the Argo floats program can be viewed on the accompanying CD.

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observations as a priority activity. The GEOSS Group on Earth Observations was formed at the first Earth Observation Summit in July 2003 and GOOS became one of the 42 Participating Organizations in GEOSS. Ocean observatories have recently become a rich mixture of UN and G-8 governance structures and GOOS participates in GEOSS with similar organizations including the Global Climate Observing System (GCOS), the International Council for Science (ICSU) and the Global Terrestrial Observing System (GTOS). Coordination of Argo at the international level is under the auspices of the WMO-IOC Technical Commission for Oceanography and Marine Meteorology (JCOMM). WMO is the World Meteorological Organization, a UN Specialized Agency, which was established in 1950. The national and international structures, characteristic of environmental observatories, present special challenges to scientific understanding and the detection of change. We are at the threshold of the beginning of a new epoch, the instrumented Earth. A globally accessible, continuous signal is needed to define the “now state” of the Earth system and inform our understanding of its past, present, and predicted future. Technologically, the Earth signal will scale exponentially for the foreseeable future in quantity, resolution, coverage, and utility. While GEOSS seeks to understand the Earth system including reducing losses from natural and human-induced disasters, enhancing human health, and protecting the global environment, national and international governments are often developing and enforcing restrictions on data availability. The complex international organizations are ill-suited to dealing with the technological advances characteristic of modern observatories. As is the case for the global economy, “the world is flat!”

Editor’s note: Dr. Orcutt chose to refer to his PowerPoint presentation in the accompanying CD rather than write a further text for this book.

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PANEL IV: MARINE SCIENCE CAPACITY BUILDING

Marine Science Capacity Building and Technology Transfer: Rights and Duties Go Hand in Hand Under the 1982 UNCLOS Ronán Long 1

The 1982 United Nations Convention on the Law of the Sea represents one of the pinnacles of international law-making during the 20th century. 2 Most aspects of the 1982 Convention are interrelated and form an integral package. In the words of Mr. Tommy B. Koh 3 : Although the Convention consists of a series of compromises, they form an integral whole. This is why the Convention does not provide for reservations. It is therefore not possible for States to pick what they like and disregard what they do not like. In international law, as in domestic law, rights and duties go hand in hand. It is therefore legally impermissible to claim rights under the Convention without being willing to assume correlative duties. 4

1

Manahan Law of the Sea Research Fellow, Jean Monnet Chair of European Law, Director Marine Law and Ocean Policy Centre, Martin Ryan Institute, National University of Ireland Galway. Tel: +35391492879; Fax: +35391750506; [email protected]. 2 Done at Montego Bay, Jamaica, 10 December 1982. In force 16 November 1994. UN doc. A/CONF.62/122; 21 ILM 1261 (1982) (English); 1833 UNTS 3. 3 President of the Third United Nations Conference on the Law of the Sea (1979– 1982). 4 T. B. Koh, “A Constitution for the Oceans”, Remarks made by the President of the Third United Nations Conference on the Law of the Sea on December 6 and 11, 1982, at the final session of the Conference at Montego Bay. See, Introductory Material on the Convention and the Conference in the Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, Final Act of the Third United Nations Conference on the Law of the Sea, (United Nations, New York, 1983), p. xxxvi.

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The normative ideal that all aspects of ocean space are interrelated and should be treated as an integral whole was embedded in the work of the 3rd United Nations Conference on the Law of the Sea. 5 This ideal is now codified in the Preamble of the 1982 Convention. 6 In retrospect, the 1982 Convention may be viewed as a victory for the consensus approach to international law-making and represents a positivist approach to the codification of international law.

Other than enshrining many new

principles aimed at providing a stable legal order for the seas, the 1982 Convention contains extensive provisions dealing with all aspects of ocean space and provides a legal basis for the establishment of new international bodies.

Since its adoption, the 1982 Convention has been ratified by 153

countries and one regional integration organisation, the European Community. 7 During the 1990s, the Convention was supplemented by the Agreement relating to the Implementation of Part XI of the 1982 Convention, 8 and by the Agreement for the Implementation of the Provisions of the Convention relating to Straddling Fish Stocks and Highly

5

See statement by Bernardo Zuleta, Under–Secretary–General, Special Representative of the Secretary–General for the Law of the Sea, Introductory Material on the Convention and the Conference in the Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, Final Act of the Third United Nations Conference on the Law of the Sea, (United Nations, New York, 1983), pp. xix-xxviii. 6 3rd Recital, Preamble, 1982 United Nations Convention on the Law of the Sea 7 Number of ratifications on 08 February 2007. See consolidated table prepared by the Division for Ocean Affairs and the Law of the Sea, Office of the Legal Affairs, which provides quick reference information related to the participation in the 1982 Convention and the two implementing Agreements. Available at http://www.un.org/Depts/los/reference_files/status2006.pdf. For official information on the status of these treaties, see United Nations Multilateral Treaties deposited with the Secretary-General at http://untreaty.un.org/. 8 Done at New York on 28 July 1994. In force 28 July 1994. On 29 September 2006, 124 ratifications. 33 ILM 1309 (September 1994)(English). LOS Bulletin, Special Issue IV (English, French, Spanish), 1836 UNTS 3.

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Migratory Fish Stocks. 9 In the intervening years since adoption, the 1982 Convention has served the international community well and provides a clear and successful blueprint for the orderly use of ocean space on many day-to-day issues. During this period, it has also become apparent that there is a growing need for greater international collaboration in marine scientific research as well as the need for technology transfer to Developing States. In this respect, there is little doubt but that present and future uses of the sea must be based on sound scientific advice and enhanced international scientific collaboration. 10 Many of the papers in these proceedings argue that the 1982 Convention provides a viable framework where rights and duties must go hand in hand if the legal scheme is to achieve a just and equitable international economic order taking into account the interests of all States and the international community as a whole.

In other words,

States claiming rights under the Convention must assume correlative duties if the normative scheme is to work in practice.

Rights and Duties Go Hand in Hand

State practice in recent years has shown that many aspects of the 1982 Convention have not been implemented in the manner which the original negotiators anticipated. 11

In particular, the well-established

9

Done at New York on 4 December 1995. In force 11 December 2001. On 29 September 2006, 124 ratifications. LOS Bulletin No. 29, pp. 25-55 (English, French, Spanish); 34 ILM 1542 (November 1995)(English); 2167 UNTS 88. 10 On the implementation of the marine scientific research provisions in the 1982 Convention see inter alia: United Nations, Guide for the Implementation of the Relevant Provisions of the UN Convention on the Law of the Sea (United Nations, Office for Ocean Affairs and the Law of the Sea, New York, 1991); R.R. Churchill and A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press, Manchester, 1999), pp. 400-420. 11 See, inter alia: A. Soons, Marine Scientific Research (Kluwer Law and Taxation Publishers, Deventer, 1982); M. Gorina-Ysern, Marine Scientific Research

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international legal principle, so eloquently articulated by Ambassador Tommy Koh at the final session of the Conference, that the enjoyment of rights under the 1982 Convention is balanced by the discharge of duties still poses a challenge for the international community. This is most evident with respect to those provisions in the 1982 Convention which are aimed at promoting marine scientific research and the transfer of marine technology. 12 These provisions are closely aligned with the fundamental goals of the 1982 Convention which are to establish a legal order for the seas and oceans which will facilitate international communication, promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection, and preservation of the marine environment. 13 In hindsight, however, there is little doubt however but that the implementation of Part XIII (Marine Scientific Research) and Part XIV (Development and Transfer of Marine Technology) of the 1982 Convention has not delivered the knowledge that is required to ensure sustainable ocean use and a safe and clean marine environment.

The failings of the

international community in this regard were clearly evident during the course of the tsunami in the Indian Ocean on December 26, 2004. 14 Since then, these catastrophic events have galvanised many States and a number (Transnational Publishers, Inc., Ardsley, 2003); F.H. Wegelein, Marine Scientific Research, The Operation And Status Of Research Vessels And Other Platforms In International Law, (Martinus Nijhoff Publishers, Leiden/Boston, 2005); A. Roach and R. Smith, United States Responses to Excessive Maritime Claims (2nd ed., Martinus Nijhoff, The Hague, 1996), pp. 438-441. 12 For an analysis of the legal scheme applicable to marine scientific research see A. Soons paper, Panel I, 30th Virginia Law of the Sea Conference, Dublin, July 12-14, 2006. 13 4th Recital, Preamble, 1982 United Nations Convention on the Law of the Sea. 14 See keynote address by Dr. Patricio Bernal, Executive Secretary of the IOC who outlines the measures that have been taken to improve data collection in the Indian Ocean since the tsunami in 2004, Keynote Address, 30th Virginia Law of the Sea Conference, Dublin, July 12-14, 2006.

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of multilateral intergovernmental organisations to harmonise their actions to ensure that marine research is not carried out on a purely national basis but is underpinned by international cooperation which conforms with both the spirit and letter of the Convention. 15 Against this background, Panel VI of the 30th Virginia Law of the Sea Conference provides a unique opportunity to review recent progress in fostering international cooperation with a view to promoting marine science capacity building and the transfer of marine technology to Developing States. Several of the distinguished panellists have combined distinguished careers in the service of the international community with scholarship in the field of oceans law. The panellists have been selected for this Conference because of their expertise in oceans law and their ability to provide insights and a comprehensive assessment of contemporary developments of this subject. They are particularly well versed on the challenges posed in achieving the objectives set down by the 1982 Convention. Their papers present four unique perspectives which are briefly summarised here.

The View from the World Bank

The first panellist, Professor David Freestone is Deputy General Counsel, Advisory Services at the World Bank. 16 Prior to commencing his career at the World Bank, he was Professor of International Law at the University of Hull where he still holds an honorary chair. In his paper, Professor Freestone reviews the opportunities that are available for members of the World Bank Group to work on law of the sea related matters including marine scientific research. Instructively, he concludes that

15 16

Arts 143 and 242, 1982 United Nations Convention on the Law of the Sea. Speaking and writing in a personal capacity.

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the negotiators at the 3rd United Nations Conference on the Law of the Sea under-estimated the resources that would be necessary by Developing States to capture the benefits that are envisaged under the 1982 Convention. 17 He goes on to point out that since the adoption of the 1982 Convention much has changed in the international institutional structure underpinning capacity building. In particular, the Global Environment Facility at the World Bank has become a financing instrument for a number of the Convention’s “global public goods” objectives. In addition, the importance of fisheries for the livelihood of poor people has brought the objective of sustainable fisheries within the Bank’s sustainable development mandate. Professor Freestone concludes that many of the implementations of current capacity building programmes are matters of global concern. Moreover, the 1982 Convention provides a broad framework for the conclusion of more specific measures such as those adopted and implemented by the World Bank and other multilateral funding agencies. These bodies continue to augment and coordinate their operations for the provision of funds to Developing States for the preparation and implementation of major programmes of assistance in strengthening their marine science, technology and ocean services

The Work of the IOC Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS) The second panellist, Mr. Ariel Gonzalez, is a career diplomat from Argentina. 18 In a thought provoking paper he outlines many of the reasons why 10 years after the entry into force of the 1982 Convention, the scheme 17

See, D. Freestone, “Capacity Building: A view from the World Bank”, Panel IV, 30th Virginia Law of the Sea Conference, Dublin, July 12-14, 2006. 18 Legal Advisor’s Office, Ministry of Foreign Affairs, Argentina. Writing in a personal capacity.

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of Transfer of Marine Technology set out in Part XIV has not been implemented to the level foreseen by the original negotiators. 19 This he explains is underpinned by the practical paradox that many Developing States who ought to benefit from the provisions in the 1982 Convention governing transfer of marine technology are reluctant to authorise foreign marine scientific research activities in sea areas under their sovereignty and jurisdiction because of the failure of the holders of marine technology to transfer their technical capability as provided for in Part XIV of the Convention.

To resolve this intractable problem, the author uses the

metaphor of cutting the Georgian knot to describe the solution advocated by the Advisory Group of Experts on the Law of the Sea of the Intergovernmental Oceanographic Commission (ABE–LOS/IOC). More specifically, he draws attention to the recently adopted IOC Criteria and Guidelines on the Transfer of Marine Technology. 20 The adoption and implementation of these Criteria and Guidelines by the international community he believes will have a dual effect. First, it will improve the implementation of Part XIV of the 1982 Convention which deals with the Development and Transfer of Marine Technology. This in turn will provide a more coherent and harmonised approach to the implementation of Part XIII of the 1982 Convention which sets down the general framework governing marine scientific research.

The author concludes that the

implementation of the guidelines may be both timely and relevant at a time in which rapidly evolving technologies for the measurement and collection of oceanographic data are testing the current marine scientific research regime as codified in the 1982 Convention. 19

See, A. W. Gonzalez, Cutting a Gordian knot?: In search of a practical and realistic scheme for the International Transfer of Marine Technology”, Panel IV, 30th Virginia Law of the Sea Conference, Dublin, July 12-14, 2006. 20 See, IOC Advisory Body of Experts on the Law of the Sea, IOC Criteria and Guidelines on the Transfer of Marine Technology (UNESCO, Paris, 2005).

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The View from the United Nations

The third panellist, Dr. Vladimir Golitsyn, is the Director of the Division for Ocean Affairs and the Law of the Sea at the Office of Legal Affairs at the United Nations and is thus in a privileged position to review the progress made by the United Nations in promoting marine scientific research capacity building. In his paper, he points out that both the legal and marine scientific environments have changed dramatically since the 1970s and that it is not surprising that the drafters of the 1982 Convention did not anticipate the technical complexities involved in the application of many of its provisions including those provisions aimed at improving the legal regime governing marine scientific research and the transfer of marine technology. He notes that the General Assembly and the Meetings of States Parties to the Convention have recognised that Developing States, Small Island Developing States, and States with economies in transition are in the most in need of capacity-building assistance. Against this background, he outlines the support provided for by the Division for Ocean Affairs and the Law of the Sea to Developing States and intergovernmental organisations. In his paper, Dr. Golitsyn elaborates upon the range and nature of the capacity building programmes which are aimed at building up institutional infrastructures and the legal and technical resources in Developing States.

The View from China

The final panellist, Professor Julia Xue is Professor and Director of the Institute for the Law of the Sea in the Ocean University of China. In her paper, Professor Xue provides an overview of China’s capacity to undertake integrated ocean management. The paper describes the national experience

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in institution building, the formation of its legal and policy framework and goes on to outline China’s participation in international cooperation in matters such as marine scientific research. At a national level, the author concludes that China’s ocean management faces serious problems which include the decline of marine resources and the deterioration of marine environment. Significantly, the author goes on to identify the reasons why the implementation of China’s oceans laws and regulations has not been satisfactory. This she attributes to China’s limited legislative capacity to ensure the enforcement of its law and policy. This is exacerbated by the complex administration which results in overlapping authority and implementation gaps. There are also insufficient personnel and the lack of financial support to conduct field inspections and land-based monitoring. In this context, the author concludes that China’s ocean management is typical of a Developing State which provides a valuable lesson for other States. While noting the global concern about China’s impact on global sustainability, she observes that the concept of capacity building is central to China’s approach to sustainable development.

Has the Normative Framework Set Down by the 1982 Convention Failed?

From the four papers presented in Panel IV it is evident that there several reasons why the normative framework set down by the 1982 Convention governing marine capacity building and the development and transfer of marine technology has not delivered the results anticipated by original negotiators. 21

21

First, it appears that many countries lack the

See statement by Bernardo Zuleta, op.cit. n.4, p.xix.

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capacity to meet their obligations under the 1982 Convention. 22

More

specifically, it appears that only Developed States have the institutions, vessels, instruments, expertise, and financial resources to undertake marine scientific research at the level envisaged by the drafters of the 1982 Convention 23 . In contrast, Developing States do not have the resources to undertake basic applied research or to implement the required management systems aimed at maximising the utilisation of marine resources in sea areas under their sovereignty and jurisdiction. Moreover, as pointed out by Mr. Gonzalez this is compounded by the lack of capacity of Developing States to actively monitor the activities of foreign marine scientific research vessels.

Second, despite the progress described by Dr. Golitsyn and

Professor Freestone, it appears that there are weak institutional structures at both national and international levels. This makes it difficult to implement the broader principles of international cooperation and benefit sharing enshrined by the 1982 Convention. There is little doubt but that many Developing States urgently require financial and technical assistance to implement basic marine scientific research programmes.

Furthermore,

without such assistance it is difficult to foresee how Developing States can benefit marine scientific research or modern ocean technologies.

The Way Forward

All four panellists point out that the 1982 Convention is multi-faceted and provides a strong conceptual treaty basis for fostering international cooperation in marine scientific research and technology transfer. They all 22

See papers presented by Professor Freestone, Mr. Golitsyn and Mr. Gonzalez, Panel IV, 30th Virginia Law of the Sea Conference, Dublin, July 12-14, 2006. 23 This point is also noted by Professor Chircop in his paper “Advances in Ocean Knowledge and Skill: Implications for the MSR Regime”, Panel VI, 30th Virginia Law of the Sea Conference, Dublin, July 12-14, 2006.

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conclude that international cooperation in marine scientific research and technology transfer are prerequisites to reaping the full benefits of the 1982 Convention. In parallel, it is also implicit from the papers that many new approaches to marine resource management such as the ecosystem approach, the precautionary principle and the integrated approach to ocean management are dependent upon the acquisition of comprehensive scientific data and credible data assessment. 24 With a view to attaining these objectives, several practical measures have been implemented by the World Bank, the IOC/ABE–LOS, the United Nations, and by individual States to build capacity and foster greater international cooperation in relation to marine scientific research. In this context, a central thread in the papers is the view that rights vested in States under the Convention regarding the conduct of marine scientific research are balanced by the correlative duties such as the duty to cooperate in the implementation of international programmes and the obligation to promote and coordinate their efforts with other States. This in turn is counter-balanced by the obligation placed on Developed States to provide scientific and technical assistance to Developing States with a view to accelerating the social and economic development. 25

Indeed, the Preamble to the Resolution on

Development of National Marine Science, Technology and Ocean Service Infrastructures appended to the Final Act of the 1982 Convention cautions that “unless urgent measures are taken, the marine scientific and technology gap between developed and developing countries will widen further and

24

On this point see Y. Tanaka, “Obligation to Co-operate in Marine Scientific Research and the Conservation of Marine Living Resources, (2005) 4 Heidelberg Journal of International Law pp. 937–965. 25 Art.266(2) of the 1982 United Nations Convention on the Law of the Sea.

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thus endanger the foundations of the new régime.” 26

Two decades after

coming into force of the 1982 Convention it is pertinent to recall the content of that Resolution which: 1. Called upon all Member States to determine appropriate priorities in their development plans for the strengthening of their marine science, technology and ocean services; 2. Called upon the developing countries to establish programmes for the promotion of technical cooperation among themselves in the field of marine science, technology and ocean service development; 3. Urged the industrialized countries to assist the developing countries in the preparation and implementation of their marine science, technology and ocean service development programmes; 4. Recommended that the World Bank, the regional banks, the United Nations Development Programme, the United Nations Financing System for Science and Technology and other multilateral funding agencies augment and coordinate their operations for the provision of funds to developing countries for the preparation and implementation of major programmes of assistance in strengthening their marine science, technology and ocean services; [and] 5. Recommended that all competent international organizations within the United Nations system expand programmes within their respective fields of competence for assistance to developing countries in the field of marine science, technology and ocean services and coordinate their efforts on a system-wide basis in the implementation of such programmes, paying particular attention to 26

Annex VI, Final Act, 1982 United Nations Convention on the Law of the Sea, Resolution On Development Of National Marine Science, Technology And Ocean Service Infrastructures.

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the special needs of the developing countries, whether coastal, landlocked or geographically disadvantaged. 27 From the papers presented in this Panel it is evident that there is a pressing need for the international community to renew its commitment to implementing these recommendations with a view to strengthening the institutional mechanism aimed at fostering international cooperation in relation to marine scientific research and at promoting scientific and technical assistance to Developing States. Without such a commitment it is difficult to see how the 1982 Convention can deliver a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of Developing States, whether coastal or land-locked.

In this

context, it is time for the international community to reaffirm their understanding that the enjoyment of rights under 1982 Convention goes hand in hand with the discharge of obligations by implementing both the letter and the spirit of Part XIII (Marine Scientific Research) and Part XIV (Development and Transfer of Marine Technology). Pacta sunt servanda.

27

ibid.

311

Capacity Building and the Implementation of the Law of the Sea Convention: A View from the World Bank David Freestone * Abstract This paper begins by examining the role envisaged by the 1982 Law of the Sea Convention (LOSC) and by the 1995 UN Fish Stocks Agreement, for the World Bank and the international trust funds for which it acts as trustee— such as the Global Environment Facility. It outlines the opportunities for work on law of the sea related issues, including marine science, within the portfolios of the members of the World Bank Group. Then it considers the mandate and resources of the Global Environment Facility (GEF) particularly in relation to its identified focal areas of international waters and biodiversity conservation. It looks at the evolution of the GEF International Waters portfolio and its investments in Large Marine Ecosystems and at a range of other innovative science and management projects supporting the objectives of the 1982 Convention. It outlines the development of a new fisheries portfolio in the Bank, in association with a number of partners—notably FAO and IUCN. It highlights the establishment of the ProFish Trust Fund and the Strategic Partnership for Sustainable Fisheries in LMEs of Sub-Saharan Africa (GEF/WB/FAO/WWF). It concludes that the UNCLOS III negotiators under-estimated the resources that would be needed by *

The views expressed in this chapter are the personal views of the author and should not be taken to represent the official views of the World Bank. He is grateful to Al Duda, Sara Graslund, Kieran Kelleher, Lidvard Gronnevet, Indu Hewawasam, Marea Hatziolos and Richard Barnes for comments on earlier drafts, but remains responsible for the final text. The author’s PowerPoint presentation can be viewed on the accompanying CD. This paper is an updated version of a paper previously published as David Freestone, "The Role of the World Bank and the Global Environment Facility in the Implementation of the Regime of the Convention on the Law of the Sea" in Law of the Sea: Progress and Prospect (David Freestone, Richard Barnes and David Ong, eds.) 2006 pp 308-326. Reproduced by permission of Oxford University Press.

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developing countries to capture the benefits that the LOSC envisages. Since 1982 much has changed and the GEF has become a financing instrument for a number of the LOSC “global public goods” objectives and the importance of fisheries for the livelihoods of poor people has brought sustainable fisheries within the Bank’s sustainable development mandate.

Introduction After more than twenty years, the Law of the Sea Convention still stands as a massive achievement in the history of codification efforts in international law. The nine-year negotiation process crystallized important new concepts such as the exclusive economic zone, archipelagic status, and the special regime for the deep-sea bed. It created new institutions, notably the International Tribunal on the Law of the Sea, the International Seabed Authority, and the Commission on the Limits of the Continental Shelf. It also introduced important new agendas, such as protection of the marine environment, and it entrusted new roles to existing institutions (including the Food and Agriculture Organization (FAO), the International Maritime Organization (IMO), and, as Birnie has argued, even bodies like the International Whaling Commission (IWC)). 1 The drafters also understood the need for the regime to be responsive to new agendas and to be integrated with the work of other organizations by recognizing the rights of States to act through “competent international organizations or general diplomatic conference” to establish relevant rules and standards 2 or to work through

1 See Patricia W. Birnie, “Marine Mammals: Exploiting the ambiguities of Article 65 of the Convention on the Law of the Sea and related provisions: Practice under the International Convention on the Regulation of Whaling” in Law of the Sea: Progress and Prospect (David Freestone, Richard Barnes and David Ong, eds.) 2006 pp. 261-280. 2 See e.g., Article 21, LOS Convention.

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“appropriate international organizations”. 3 The rules promulgated by these organizations are, in some instances, incorporated by reference into the Convention regime. 4 It also recognizes the obligation of States to cooperate through “sub regional or regional … organizations” in order to achieve the objectives of the Convention. 5 It is a wide-ranging agenda that imposes consultative and rulemaking obligations on a number of international institutions and requires international cooperation on an even wider range of issues, from fisheries to deep sea-bed management. While the LOSC provides authorization for States parties to claim new maritime zones and new resources, it also imposes

corresponding

delimitation

as

well

as

conservation

and

management obligations on them. Some of these obligations are very onerous, particularly for developing countries. However, the LOSC does not envisage the establishment of any dedicated financing mechanisms to help 3

See e.g., ibid., art. 65. For the negotiating history of these provisions and an interesting early analysis of the impact of the Convention regime on existing organizations see J.D. Kingham and D.M. McRae “Competent International Organizations and the Law of the Sea” (1979) 3 Marine Policy 106-132; see also E. Miles “On the Roles of International Organizations in the New Ocean Regime” in C. Park (ed.) The Law of the Sea in the 1980s (Honolulu, The Law of the Sea Institute: 1983) 383-445; T. Treves, “The Role of Universal International Organisations in Implementing the 1982 UN Law of the Sea Convention” in A.H.A. Soons (ed.) Implementation of the Law of the Sea Convention through International Institutions (Honolulu, The Law of the Sea Institute: 1990) 16-37. For a list of organizations and relative competencies under the Convention see (1996) 31 LOSB 79-95. See also David Freestone and Alex G. Oude Elferink "Flexibility and Innovation in the Law of the Sea: Will the LOS Convention amendment procedures ever be used?" in Stability and Change in the Law of the Sea: The Role of the LOS Convention (Alex G. Oude Elferink, Ed.) Martinus Nijhoff, 2005, pp 163-216. 4 B. Oxman “Tools for Change: the Amendment Procedure” in Proceedings of the Twentieth Anniversary Commemoration of the Opening for Signature of the United Nations Convention on the Law of the Sea, New York 9 and 10 December, 2002 (United Nations: 2003) 195-207. Oxman cites IMO rules on control of marine pollution and ICAO rules on transit passage of straits and archipelagic sea lane passage by civil aircraft (ibid., at 201). 5 See e.g. ibid. art. 118 on the cooperation of States in the conservation and management of living resources of the high seas.

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states to take advantage of the opportunities that it presents or to assist them to meet their obligations. In that sense it was a decade too early. Although dedicated funds have been set up before to support international régimes, 6 it was really the 1992 UN Conference on Environment and Development (UNCED) in Rio de Janeiro that made the world community aware of the need to establish dedicated funding mechanisms for new legal regimes which establish incremental obligations for developing country parties. Concluded a decade before UNCED, the 1982 LOSC does not have such a mechanism. 7 A wide range of international institutions have contributed considerable resources to the implementation of various aspects of the LOSC regime, but this chapter looks at the role of the World Bank 8 and the Fund for which it acts both as Trustee and as one of

6

E.g. the 1987 Montreal Protocol Multilateral Fund set up to assist with the implementation of the Montreal Protocol to the 1985 Vienna Convention for the Protection of the Ozone Layer (1987) 26 ILM 1550. The IMO led the way with the dedicated 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage—although this was not to facilitate implementation—more to provide a common safety net. For original text see (1972) 11 ILM 284, but this has been much amended. It was replaced in 1992 (text in P. Birnie and A.E. Boyle, Basic Documents in International Law and the Environment, Oxford, 1995, p. 107) and amended by a Protocol of 2000. 7 The UNCED negotiations incorporated extensive reference to the principle of “common but differentiated responsibility”—under which all states accepted responsibility for taking action to address global environmental concerns such as climate change, but for developing states the obligation was dependent upon prior commitment of incremental financing by developed countries—see Principle 7, Rio Declaration, 13 June 1992; (1992) 31 ILM 874 and Arts 3(1), 4(3) and 4(7) of the UN Framework Convention on Climate Change (UNFCCC), (1992) 31 ILM 851. The LOSC is not based on similar arguments, but see Christopher Stone, “Common but Differentiated Responsibilities in International Law,” (2004) 98 AJIL 276, who talks of “close cognates” to CDR at 276. 8 The World Bank Group is comprised of five associated institutions: the International Bank for Reconstruction and Development (IBRD), the International Development Association (IDA), and the International Finance Corporation (IFC), the Multilateral Investment Guarantee Agency (MIGA) and the International Centre for the Settlement of Investment Disputes (ICSID). The term “World Bank” as used in this paper refers to the IBRD and IDA.

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the three implementing agencies: the Global Environment Facility (GEF). It starts by looking briefly at the implementation role the LOSC itself seems to envisage for the World Bank and the way this has been supplemented by the 1995 UN Fish Stocks Agreement. Then it examines the role and financing capability of the Bank itself, traces the establishment, re-structuring and evolution of the Global Environment Facility and concludes by looking at a representative spread of the growing portfolio of projects of both bodies in the law of the sea area.

Role of International Organizations in Developing and Implementing the Convention

The LOSC itself studiously avoids naming the relevant or appropriate institutions for carrying out the roles that it allocates throughout its text. Even before the Convention was finalized, Kingham and McRae in 1979 had analysed the impacts of the draft text on existing institutions. 9 Interestingly, their research paper does not even mention the World Bank. However in a more authoritative official document in 1996 the UN Division of Ocean Affairs and Law of the Sea (DOALOS) developed a matrix of “Competent and Relevant International Organizations.” 10 As might be expected the more obvious UN agencies concerned with marine space are mentioned very often—FAO in 53 places, IMO in 65—but here the World Bank is mentioned in 18 places. In terms of core purposes and functions this ratio is probably about right; certainly the Bank has no role in the development of implementation rules for specialist regimes in the way 9

J.D. Kingham and D.M. McRae “Competent International Organizations and the Law of the Sea” (1979) 3 Marine Policy 106-132 10 For a list of organizations and relative competencies under the Convention see (1996) 31 Law of the Sea Bulletin, pp. 79-95.

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envisaged for FAO or IMO, in relation to fisheries and maritime transport and pollution issues respectively. This analysis is also skewed slightly by the fact that the most significant role for an international financial institution must be the provision of financing directly to the State parties themselves, either bilaterally, regionally or sub-regionally. However, in the seventeen years between the Kingham and McRae study and the DOALOS analysis the Bank has assumed a much more proactive role in the area of environment and natural resources management. This is reflected in the sorts of issues for which a possible role (with others) is envisaged by the DOALOS matrix. These include facilitating a range of issues including the rights of land locked states; 11 co-operation regarding semi enclosed seas; 12 regarding the Area, 13 preferential treatment for developing countries, funding and technical assistance regarding marine pollution, 14 financing for marine scientific research; 15 development and transfer of marine technology; 16 and encouragement of the transfer of marine technology re activities in the Area. 17 By the time of the negotiation of the 1995 UN Fish Stocks Agreement, the lessons of the 1992 Rio Conference were well learned and the negotiating parties, recognizing an adapted form of the notion of “common but differential responsibility” included specific provisions recognizing the special requirements of developing states in relation to the conservation and management of straddling and highly migratory fish stocks

11

Article 72(2). Article 123. 13 Articles 151, 163, and 169. 14 Article 203. 15 Articles 239 and 243. 16 Articles 266, 268, 269, 270, 272 and 276. 17 Articles 273, 275, 276(1) and 278. 12

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and the development of fisheries for such stocks. 18 States are obliged to provide assistance to developing States, either directly or through the United Nations Development Programme, FAO and other specialized agencies, as well as the Global Environment Facility, the Commission on Sustainable Development and other appropriate international and regional organizations and bodies. It indicates the progress that the GEF had already achieved in international credibility, through the 1994 restructuring process, that it was specifically named in the text of the Agreement. 19 Article 25 then goes on to itemize the forms of co-operation that it envisages for developing States, particularly the least-developed among them and small island developing states. It provides that these cooperation efforts shall be aimed at enhancing the ability of such states to conserve and manage straddling and highly migratory fish stocks and develop their own fisheries for them; to enable them to participate in high seas fisheries for such stocks including gaining access; and to facilitate their participation in sub regional and regional fisheries management organizations and arrangements. 20 The forms of cooperation that Article 25 contemplates include provision of financial assistance, assistance relating to human resource development, technical assistance, transfer of technology, including through joint venture arrangements, and advisory and consultative services. 21 More specifically, the sorts of assistance listed in Article 25 include those directed at improving conservation and management of straddling and highly migratory fish stocks through collection of, reporting, verification, exchange of analysis of fisheries data and related information; stock 18

Article 24(1). Now that the UN Fish Stocks Agreement has entered into force the Bank and the GEF have made ad hoc reports to the informal meetings of the Parties. 20 Article 25(1)(a)-(c). 21 Article 25(2). 19

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assessment and scientific research; and monitoring, control surveillance, compliance and enforcement (including training and capacity building at local level), development and funding of national and regional observer programmes and access to technology and equipment. 22 The UNFSA gives this wide-ranging and detailed agenda, of course, to a broad spread of institutions, including specifically the GEF but also, as a UN specialised agency, the World Bank. 23 The next section therefore examines the capacity of the World Bank to respond to this agenda and looks at the ways it has increased its interest and focus on sustainable development, particularly in the areas of environment and natural resource management, over the last twenty years. These developments within the work of the World Bank also reflect a wider view, and an evolution at both a legal and a policy level of thinking about the concept of sustainable development. The concept of “Sustainable Development” was first systematically outlined for the international agenda by the 1987 World Commission on Environment and Development—chaired by Gro Harlem Bruntland (the Bruntland Report). 24 Hence it is essentially a post-LOSC concept, but has become part of the broader framework of law and policy within which international institutions, including the World Bank, function, and within which the implementation of the 1982 Convention now takes place. One of the obvious results of innovations introduced by the 1995 Fish Stocks Agreement is to introduce sustainable 22

Article 23(3)(a)-(c). Although the Bretton Woods Institutions (IBRD and the International Monetary Fund) were established in 1944 – predating the UN – by an Agreement of 1946 they were granted a special status as UN Specialised Agencies. 24 World Commission on Environment and Development, Our Common Future, Oxford, 1987. See also: Environmental Protection and Sustainable Development: Legal Principles and Recommendations. (Report of the Experts Group on Environmental Law of the World Commission on Environment and Development), Dordrecht, 1986). 23

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development concepts into the LOSC agenda in relation to fisheries. 25 This can be seen not only in the financing arrangements discussed above but also in the way the 1995 Agreement embraces the ecosystem approach and the precautionary approach, and itemizes for the first time—in its Annex II—a precautionary methodology appropriate for capture fisheries management. 26

From Stockholm to Rio: the Word Bank in Transition

The 1972 Stockholm Declaration issued at the end of the historic UN Conference on the Human Environment had stressed the importance of environmental concerns being taken into account in development. However, it took some time for this message to be internalised within international financial institutions, including the World Bank. 27 A number of significant steps were made in recognizing the importance of environmental issues. The first, most significant issue was the acceptance that environmental protection 25

For a detailed assessment of the new approaches introduced by the 1995 agreement including “conservation” as opposed to “protection”, see David Freestone and Zen Makuch, “The New International Environmental Law of Fisheries: The 1995 Straddling Stocks Agreement”, (1997) 7 Yearbook of International Environmental Law, Oxford, 1998, pp. 3-49. For a discussion of whether the 1995 Agreement de facto amends the LOSC see, David Freestone and Alex G. Oude Elferink, "Flexibility and Innovation in the Law of the Sea: Will the LOS Convention amendment procedures ever be used?" in Stability and Change in the Law of the Sea: The Role of the LOS Convention (Alex G. Oude Elferink, Ed.) The Hague, Martinus Nijhoff, 2005, pp 163-216. 26 See Freestone and Makuch, above, and David Freestone, “Implementing Precaution Cautiously: The Precautionary Approach in the 1995 Straddling Stocks Agreement” in Developments in International Fisheries Law (Ellen Hey, ed.), The Hague, 1999, pp. 287-325. 27 See Wade, R., “Greening the Bank: The Struggle over the Environment, 19701995,” D. Kapur, J.P. Lewis, and R. Webb, eds. The World Bank: Its First Half Century, 611-734 (Brookings Institution Press, Washington D.C.); also David Freestone, “International Financial Institutions and the Marine Environment: A view from the World Bank” in The Stockholm Declaration and Law of Marine Environment, (Myron H. Nordquist, John Norton Moore and Said Mahmoudi, eds.), The Hague, 2003, pp. 119-134.

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was a valid preoccupation in the Bank’s economic work. Once that point had been reached, then the Bank’s operational policies were amended to incorporate environmental concerns and a specialist environment department was established. Indeed, in the run-up to the 1992 Rio de Janeiro Earth Summit—the UN Conference on Environment and Development—the World Bank was seen by many developed countries as the most appropriate host for the establishment of Trust Funds to finance activities designed to address threats to the global environment. 28 The basic constitution of the International Bank for Reconstruction and Development (IBRD) is to be found in its Articles of Agreement. 29 The IBRD Articles of Agreement require, inter alia, that investments be “for a productive purpose” (Article I) and Article IV (10) prohibits political interference in the internal affairs of member states and requires that “... only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in Article I.” By the early 1980s the World Bank was accepting that investments made for environmental objectives were for productive purposes and that environmental considerations could legitimately be taken into account in assessing the suitability of projects for investments. The World Bank issued its first environment policy instruction: the Operational Manual Statement (OMS 2.26) on Environmental Aspects of Bank Work in

28

On the concept of an international trust fund see the following by the former General Counsel of the International Monetary Fund, J. Gold: “Trust Funds in International Law: The Contribution of the International Monetary Fund to a Code of Principles” (1978) 72 American Journal of International Law, 856-866. On more recent uses of this device see Peter Sand, “Trusts for the Earth” in Transnational Environmental Law, The Hague, 1999, 300ff. 29 Articles of Agreement of the International Bank for Reconstruction and Development. These provisions are mirrored in the Articles of the International Development Association.

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1984. 30 The recruitment of environmental specialists to a separate Bank Department set up in 1987, and the establishment in 1991 of the Pilot Phase of the Global Environment Facility ushered in an increase in the World Bank’s commitment to the financing of environmental and natural resource management projects, particularly those which combined local and global environmental benefits (by for example cleaning the local ambient air quality while reducing emissions of greenhouse gases). This approach was categorised by the influential 1992 World Development Report as utilising “win-win” opportunities. 31 The financial instruments available to the World Bank to promote sustainable development include the full suite of Bank Group financial and technical assistance. These include the normal loan arrangements of the

30

OMS 2.36 Environmental Aspects of Bank Work. (May 1984). By 1992 the Bank had in place operational policies relating to a range of environmental and social, as well as international law, issues including: environmental assessment; protection of natural habitats; pest management; involuntary resettlement; indigenous peoples; cultural property; safety of dams; international waterways; and projects in disputed areas. For more details of the policies and discussion of the role of the Inspection Panel in overseeing compliance with these policies see David Freestone, “The Environmental and Social Safeguard Policies of the World Bank and the evolving Role of the Inspection Panel” in Economic Globalization and Compliance with International Environmental Agreements, (Kanami Ishibashi, Alexandre Kiss and Dinah Shelton, eds.) The Hague, 2003, pp. 139-156. 31 World Development Report 1992: Environment and Development, 1992, World Bank, Washington and Oxford. The main message of the report is the need to integrate environmental considerations into development policymaking. The report argues that continued, and even accelerated, economic and human development is sustainable and can be consistent with improving environmental conditions, but that this will require major policy, program, and institutional shifts. A twofold strategy is required. First, the positive links between efficient income growth and the environment need to be aggressively exploited. Second, strong policies and institutions need to be put in place which cause decision makers to adopt less damaging forms of behaviour. Where tradeoffs exist between income growth and environmental quality, the report argues for a careful assessment of the costs and benefits of alternative policies. This approach will result in much less environmental damage.

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IBRD, 32 the long term interest-free concessional credits and grants available to the poorest countries through the International Development Association (IDA), 33 partial risk guarantees through IDA, IBRD and the Multilateral Investment Guarantee Agency (MIGA). Private sector debt and equity is provided through the International Finance Corporation (IFC). In addition, over the last decade or more the Bank has committed itself to act as trustee and/or implementing agency for a number of significant trust funds, many of which are designed to address global environmental issues. These include the Global Environment Facility, the Montreal Protocol Multilateral Fund, the Rain Forest Trust Fund, 34 and since the finalisation of the Kyoto Protocol to the UN Framework Convention on Climate Change, a number of funds designed to reduce carbon dioxide emissions and generate credits for the contributors, modelled on the Prototype Carbon Fund. 35 In relation to natural resource management the Bank established a multi-donor trust fund specifically to support sustainable forestry activities in borrowing countries 32

In 2006 the IBRD lent US$ 14.1 billion to its members. IDA was established in 1960 as a concessional facility for the poorest countries. It provides loans on extended repayment terms up to 40 years with minimum interest payments. The donors—the IDA Deputies—replenish it every three years. This process provides opportunities for the donors to introduce policy requirements for the way in which IDA will be committed and is the origin of many of the World Bank’s environmental and disclosure requirements. In fiscal year 2006 IDA committed some US$ 9.5 billion in loans and grants. 34 Peter Sand, op. cit. 35 This $US180 million Prototype Carbon Fund (PCF), with contributions from both public and private participants, finances projects designed to generate emissions reductions capable of being registered under the requirements of the Kyoto Protocol to the UN Convention on Climate Change. For more details see David Freestone, “The World Bank’s Prototype Carbon Fund: Mobilising new Resources for Sustainable Development” in (Sabine Schemmer-Schulte and Ko-Yung Tung, eds.) Liber Amicorum for Ibrahim S.I. Shihata, Kluwer Law International, The Hague, 2001, pp. 265-341, and for an overview of the Bank’s emerging portfolio see David Freestone, “The UN Framework Convention on Climate Change, the Kyoto Protocol and the Kyoto Mechanisms” in Legal Aspects of Implementing the Kyoto Protocol Mechanisms: Making Kyoto work (David Freestone and Charlotte Streck, eds.) Oxford, 2005, pp. 3-24. 33

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(PROFOR) and in 2005 used a similar mode for a new fund to support sustainable fisheries (PROFISH). In 2006 the World Bank has more than 400 specialist environmental and social staff members, the majority of whom have been recruited since 1992. It has built a portfolio that is currently more than 10% of the Bank financing as a whole. For example, in Fiscal Year 2006 it funded projects in which the primary or major objectives were environmental to the level of $ 1.38 billion and social development in the order of $1.1 billion (i.e. a total of some $2.5 billion out of total Bank financing of $23.6 billion). 36 On the whole this financing is associated with around the same level of cofinancing from donors and other financial institutions. In addition to project lending the Bank also provides technical assistance to build institutional capacity in introducing environmental policies legislation and enforcement. It also provides training through the World Bank Institute.

The Global Environment Facility

The pilot phase of the Global Environment Facility was established by tripartite procedural resolutions dated October 28 1991 by the United Nations

Development

Programme

(UNDP),

the

United

Nations

Environment Programme (UNEP), and the World Bank. The World Bank Board of Executive Directors had approved the establishment of a Global Environment Trust Fund in the previous March, 37 but by the October resolutions the three institutions agreed to cooperate in the implementation 36

Source The World Bank Annual Report 2006: Year in Review, 2006. A proposal for the establishment of a Global Environment Trust Fund was approved by the Bank’s Board of Executive Directors by Resolution No. 91-5 on March 14 1991. 37

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of the Facility. The Bank was to continue to act as Trustee of the Fund as well as one of the three Implementing Agencies. The establishment of the Global Environment Trust Fund in 1991 was in anticipation of the UN Conference on Environment and Development (UNCED) to be held in Rio de Janeiro in June 1992. At that Conference, two major treaties were signed to address climate change 38 and the conservation of biological diversity, 39 both of which accept the principle of “common but differentiated responsibility”, whereby the developing countries accepted obligations on the understanding that the additional (or incremental) costs involved in protecting the global environment (or as economists say—global public goods) would be met by developed countries. The developed countries, many of whom had contributed to the total pledges of some US$1 billion to the new GEF Pilot Phase, saw it as the ideal vehicle for the transfer of these incremental costs, but many of the developing country negotiators were not entirely happy with passing sole responsibility to the newly established and yet unproven GEF. It was equally clear that some fundamental changes in its governance structure would be necessary before the formal Conferences of the Parties would be willing to confirm its status as any form of official financial mechanism for these Conventions. Indeed, Agenda 21—the agreed global action plan agreed at the Conference—recommended that the GEF should be

38

United Nations Framework Convention on Climate Change 1992, text in (1992) 31 ILM 851. 39 Convention on Biological Diversity 1992, text in (1992) 31 ILM 818. Note that the 1994 Convention to Combat Desertification, text at (1994) 33 ILM 1016, is also known (with the UNFCC and the CBD) as a Rio Convention, and the 1994 GEF Instrument envisaged financing work on land degradation and desertification as related to the other four focal areas. In October 2002 the Instrument was amended to introduce, inter alia, land degradation as a new focal area. This amendment became effective in June 2003 after approval by the governing bodies of the three implementing agencies.

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“restructured” so as to, inter alia, “ensure a governance that is transparent and democratic in nature, including in terms of decision-making and operations, by guaranteeing a balanced and equitable representation of the interests of developing countries, as well as giving due weight to the funding efforts of donor countries.” 40 The restructuring process, involving negotiations among 73 states, was completed in Geneva in March of 1994. The innovative decision making structure that was agreed in the restructuring process is set out in the Instrument establishing the Restructured Global Environment Facility. 41 The legal status of the Instrument itself may be unique and the collaborative mechanism between the UN family and a Bretton Woods institution which it represents is also highly novel. The Instrument itself is a sui generis document that does not follow the format of an international treaty.

42

After the text had been

negotiated it was approved by three separate resolutions of the three

40

Chapter 33.16 (a)(iii). A similar provision is expressly included in the text of Article 21(3) of the UNFCCC (see above), the final sentence of which reads: “... the Global Environment Facility should be appropriately restructured and its membership made universal to enable it to fulfil the requirements of Article 11.” 41 For text of the Instrument for the Establishment of the Restructured Global Environment Facility, Report of the GEF Participants Meeting, Geneva 14-16 March 1994 see 33 ILM 1273 (1994). 42 Although form is not dispositive, the participants in the GEF must be states but they do not sign or accede to the Instrument. The Instrument is not registered with the UN.

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Implementing Agencies—the Executive Directors of the World Bank, 43 the Governing Council of UNEP, 44 and the Executive Board of UNDP. 45 The primary decision making body of the GEF is the Council. This is made up of 32 members: fourteen of the Council Members are from developed countries, sixteen from developing countries and two from the countries of central and eastern Europe and the former Soviet Union. 46 The major donors to the trust fund (or “non-recipients” as they are termed by the Instrument) hold individual seats (or “chairs”) on the Council. 47 The other Council chairs represent constituencies of a number of members. Some of these constituencies include a mix of countries including both recipients and non-recipients. 48 While the Instrument envisages that decisions will be made by consensus, 49 there is provision for a formal vote if consensus is

43

The Executive Directors of the World Bank adopted the instrument at a meeting in Washington, D.C., on May 24, 1994 (Resolution No. 94-2, "Global Environment Facility Trust Fund: Restructuring and First Replenishment of the Global Environment Facility"), and the Board of Governors of the Bank adopted a resolution on July 7, 1994, approving cooperation by the Bank with other international organizations as appropriate to achieve the purposes of the GEF (Resolution No. 487, "Protection of the Global Environment"). 44 The Governing Council of the United Nations Environment Programme adopted the instrument at a special meeting of its Governing Council in Nairobi on June 18, 1994 (Resolution ss.iv.1, "Adoption of the Instrument for the Establishment of the Restructured Global Environment Facility"). 45 The Executive Board of the United Nations Development Programme and of the United Nations Population Fund adopted the instrument at a meeting in New York on May 13, 1994 (Document DP/1994/9, "Report on the Second Regular Session"). 46 GEF Instrument, Para. 16. 47 France, Germany, UK, US and Japan. 48 See Annex E of the Instrument, which sets out the criteria for the formation of constituencies and the procedures to be followed. 49 GEF Instrument Para 25(b): Decisions of the Assembly and the Council shall be taken by consensus. In the case of the Council if, in the consideration of any matter of substance, all practicable efforts by the Council and its Chairperson have been made and no consensus appears attainable, any member of the Council may require a formal vote.

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Capacity Building and the Implementation of the LOSC

unattainable. 50 The formal vote procedure requires a “double weighted majority”—sixty percent of the votes of the participants and sixty percent majority of the contributions. This represents a unique combination of the UN voting system of “one state, one vote” and the Bretton Woods voting system, which depends solely on shareholding. However, the formal voting system of paragraph 15(c) has never actually been used; all decisions to date have been by consensus. Amendments to the Instrument require the prior approval by the Council, which must take into account the views of the Implementing Agencies and the Trustee, and then recommend the proposed amendments to a meeting of the Assembly. The Assembly is a body made up of representatives of all the GEF Participants, 51 which the Instrument envisages meeting every three years. 52 Once the Assembly has approved

50

Instrument Para 25 (c) (c) Formal Vote : (i) Unless otherwise provided in this Instrument, decisions requiring a formal vote by the Council shall be taken by a double weighted majority, that is, an affirmative vote representing both a 60 percent majority of the total number of Participants and a 60 percent majority of the total contributions. (ii) Each Member of the Council shall cast the votes of the Participant or Participants he/she represents. A Member of the Council appointed by a group of Participants may cast separately the votes of each Participant in the constituency he/she represents. (iii) For the purpose of voting power, total contributions shall consist of the actual cumulative contributions made to the GEF Trust Fund as specified in Annex C (Attachment 1) and in subsequent replenishments of the GEF Trust Fund, …”. 51 States which are both Recipients from, and Contributors to, the Trust Fund. Currently there are 177 members. 52 Para 13. “The Assembly shall consist of Representatives of all Participants. The Assembly shall meet once every three years. Each Participant may appoint one Representative and one Alternate to the Assembly in such manner as it may determine. Each Representative and each Alternate shall serve until replaced. The Assembly shall elect its Chairperson from among the Representatives.” In fact the Assembly has met three times. In New Delhi in 1998, a second Assembly was held in Beijing in October 2002, and a third in Cape Town in August 2006.

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these amendments, 53 they do not become effective until they have been adopted by the Implementing Agencies and the Trustee, in accordance with their respective rules and procedural requirements. 54 Also innovative is the status of the Secretariat that operates under a Chief Executive Officer/Chairperson. 55 The Rio Conference did not want to

53

See GEF Instrument, para 14.d: “The Assembly shall ... (d) Consider for approval by consensus, amendments to the present Instrument on the basis of recommendations by the Council.” 54 Para 34. “Amendment or termination of the present Instrument may be approved by consensus by the Assembly upon the recommendation of the Council, after taking into account the views of the Implementing Agencies and the Trustee, and shall become effective after adoption by the Implementing Agencies and the Trustee in accordance with their respective rules and procedural requirements.” The amendment procedure has been invoked twice. At its May 2002 meeting the GEF Council approved a request from the INC of the Stockholm Convention on Persistent Organic Pollutants that Global Environment Facility to be its financial mechanism, as well as a proposal that land degradation become a full “focal area.” The Council approved proposed amendments to the Instrument to allow it to accept this invitation and to increase its focal areas from four to six to add Persistent Organic Pollutants and Land Degradation. These amendments were approved by the GEF Assembly at its meeting in Beijing in October 2002, and entered into force on June 19, 2003, once they had been approved by the governing bodies of the three Implementing Agencies. In August 2006, the Assembly approved an amendment to paragraph 17 of the Instrument that the Council meetings will be held at the seat of the Secretariat unless the Council decides otherwise. The previous text had required them to be held at the seat of the Secretariat. 55 The CEO is appointed by the GEF Council on the joint recommendation of the Implementing Agencies to serve for a three-year (renewable) term. Para 21, Instrument. Since its inception until 2003 the GEF CEO was Dr. Mohammed ElAshry. His successor was Mr Len Goode (Canada). In 2006 Ms Monique Barbut (France) was appointed CEO. Para 25 further provides “The CEO shall be appointed to serve for three years on a full time basis by the Council on the joint recommendation of the Implementing Agencies. Such recommendation shall be made after consultation with the Council. The CEO may be reappointed by the Council. The CEO may be removed by the Council only for cause. The staff of the Secretariat shall include staff members seconded from the Implementing Agencies as well as individuals hired competitively on an as needed basis by one of the Implementing Agencies. The CEO shall be responsible for the organization, appointment and dismissal of Secretariat staff. The CEO shall be accountable for the performance of the Secretariat functions to the Council.”

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Capacity Building and the Implementation of the LOSC

create new institutions. The GEF is not an international organization or even a separate legal entity. The GEF Secretariat, which services and reports to both the Assembly and to the Council, is “supported administratively by the World Bank” but is mandated to “operate in a functionally independent and effective manner.” 56 Since the restructuring process and first replenishment was completed in 1994, the GEF has been replenished on three further occasions. In March 1998 at a meeting in Paris the negotiations for the second replenishment (GEF 2) were completed with commitments totalling US$ 2.75 billion for the four-year period to 2002. 57 In August 2002 after a protracted negotiating process the GEF was replenished for a third time to a total sum of US$ 2.92 billion. The equally difficult negotiations for the fourth replenishment (GEF 4) concluded in the summer of 2006 with pledges totalling $3.2 billion.

Results

The GEF Instrument envisaged incremental financing to be provided by the Facility in four focal areas: Ozone Depletion (to the extent not covered by the Montreal Protocol Multilateral Fund), International Waters, Conservation of Biodiversity, and Climate Change. There are 56

Instrument, Para 21. The second Overall Performance Study of the GEF which preceded the third replenishment included a recommendation for strengthening and greater autonomy for, the Secretariat, recommending that “the GEF Council consider a review of options to strengthen GEF’s institutional structure, including providing it with separate legal status.” After careful consideration the Council decided that separate legal status was neither necessary nor desirable. Clarifying the Roles and responsibilities of the GEF Entities: Administrative Arrangements to enhance the Functional Independence and Effectiveness of the GEF Secretariat, GEF/C.19/8/Add.1 May 2002. 57 See Freestone, et.al., “The World Bank Group” (1998) 9 Yearbook of International Environmental Law 669, 671.

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David Freestone

currently 15 Operational Programs (OPs) approved by the Council that map out strategy in each focal area and provide synergies and crosscutting themes between the focal areas. 58 Since 1991 over US$ 4.5 billion has been committed to more than 1400 projects in 140 countries. What is even more significant is that this project financing has “leveraged” nearly four times as much again i.e. a total of more than US$15 billion—through grants from other bodies but also through associated loans for which the recipient countries have borrowed money from the IBRD, IDA or other sources, for environmental projects.

58

Biodiversity: OP1. Arid and Semi-Arid Zone Ecosystem; OP2. Coastal, Marine, and Freshwater Ecosystems; OP3. Forest Ecosystems; OP4. Mountain Ecosystems; OP13. Conservation and Sustainable Use of Biological Diversity Important to Agriculture. Climate Change: OP5. Removal of Barriers to Energy Efficiency and Energy Conservation; OP6. Promoting the Adoption of Renewable Energy by Removing Barriers and Reducing Implementation Costs; OP7. Reducing the Long-Term Costs of Low Greenhouse Gas Emitting Energy Technologies; OP11. Promoting Environmentally Sustainable Transport. International Waters: OP8. Waterbody-based Operational Program; OP9. Integrated Land and Water Multiple Focal Area Operational Program; OP10. ContaminantBased Operational Program. Multifocal Area: OP12. Integrated Ecosystem Management; Persistent Organic Pollutants: OP14. Draft Operational Program on Persistent Organic Pollutants; Land Degradation: OP15. Operational Program on Sustainable Land Management. The full texts of the OPs are available on the GEF website at http://www.gefweb.org

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Capacity Building and the Implementation of the LOSC

The largest focal area is Climate Change with commitment levels of $1.74 billion (and $9.29 billion in co-financing), followed by Biodiversity Conservation ($1.89 billion plus $3.80 billion in co-financing), International Waters ($767 million plus $2.11 billion in co-financing) and Ozone Protection ($177 million plus $182 in co financing). 59 It is a mistake however for two main reasons to think that the relatively small amounts committed to the International Waters (IW) focal area represent the GEF’s total commitments regarding marine issues. First, some of the IW budget has been committed to freshwater bodies such as the Mekong and Lake Victoria, and second a substantial proportion of the Biodiversity financing under OP2 includes conservation of marine and coastal resources. 60 It will be recalled that the GEF only finances “incremental costs”— those activities and investments that represent a gain to the international as opposed to the national environment. In relation to climate change this concept may be relatively easy to calculate—or at least to understand— where the GEF might, for example, finance the extra cost of converting a “least-cost” but climate damaging project (such as a coal-fired power station) to a climate friendly project (such as a wind farm or a solar thermal plant). In such a situation, the country contributes the amount it would have contributed to the “least-cost” project and the GEF finances the additional (incremental) costs of the climate friendly technology. However, these incremental cost calculations are more difficult in relation to biodiversity or IW projects. For this reason perhaps, initial investments in IW under the OP8 on “Waterbody based programs” concentrated on pollution and nutrient 59

Note that the GEF Instrument was amended in 2002 to add Land Degradation and Persistent Organic Pollutants as focal areas. Since 2002 commitments to these two areas together have been $313 million with $261m in co-financing. 60 In fact, a total of $330 with a further $1.22 billion of co-financing has been spent to date on conservation of marine and coastal resources.

333

David Freestone

reduction in large inland water bodies—Lake Victoria, the Aral Sea, the Caspian Sea—where the global “public goods” benefits of protecting a shared international water body were more obvious to appreciate. By the same token, the global public goods aspects of marine pollution from land based sources are relatively easy to recognize and this prompted GEF support for the Global Programme of Action on Land Based Sources of Marine Pollution, where a classic project was the Black Sea and Danube Strategic Partnership involving an investment of $50 million with $450 million in co-financing. 61 This same approach prompted GEF support for a range of regional seas projects and also led to its support, under OP8 (Waterbody-based operations) for the Large Marine Ecosystem programme as well as incremental financing to small island developing states 62 for the development of a series of regional fisheries convention negotiations such as the West and Central Pacific (which led to the finalization of the Honolulu Conventions). The 2002 Johannesburg World Summit on Sustainable Development included major commitments on sustainable fishing in its Plan of Implementation (POI). In the light of this, the GEF revised its IW targets so that “by 2006 almost one-half of the 27 Large Marine Ecosystems (LMEs) located near developing countries will have country-driven, ecosystembased management programmes developed with GEF assistance that contribute to the WSSD POI ‘sustainable fisheries’ targets with a view to those programmes being under implementation by 2010.” Stabilizing and reversing fisheries depletion is addressed in a large number of the LME 61

Nutrient or pollution run-off from a littoral state into an international watercourse which causes major down stream damage to an international water body while causing no harm to the littoral state is a classic “tragedy of the commons” situation. Here the GEF provides the “global public goods” financing. 62 Under the SIDS component in OP9.

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Capacity Building and the Implementation of the LOSC

projects in which the GEF seeks to promote an approach to sustainable fisheries management that considers fisheries not as an isolated sector, but related to a number of other sectors affecting or being affected by the fisheries industry, including for example, tourism, agriculture, and navigation. 63

GEF Large Marine Ecosystems Program

At the time of writing, the GEF Council has approved nine Large Marine Ecosystems (LME) and regional projects (with others under advanced preparation) which aim to develop sub regional co-operation towards ecosystem based approaches to management of marine resources, many of them building on partnerships with existing regional and sub regional institutions. These cover the Red Sea and Gulf of Aden (implemented by UNDP/UNEP/WB); Mediterranean (UNEP); Black Sea (UNDP/UNEP/WB); Baltic Sea (WB); Patagonian Shelf (WB/UNDP); Benguela Current (UNDP); Guinea Current (UNDP); Pacific SIDs (UNDP); Yellow Sea (UNDP); and the South China Sea/Gulf of Thailand (UNEP). Projects are under preparation for: Canary Current

(UNEP); Caribbean

LME (UNDP); Aghulas and Somali Currents (UNDP); Bay of Bengal (WB); and the South West Indian Ocean (WB). In the Canary Current LME Project, UNEP in partnership with FAO, is establishing collaboration with the secretariats of the Commission Sous-Régionales des Pêches, the Ministerial Conference on Fisheries Cooperation among African nations bordering the Atlantic Ocean and the Abidjan Convention. The UNDP Caribbean LME project that is in

63

Contribution of the GEF to the Secretary General’s Report on Fisheries-Related Issues to the Fifty-ninth session of the General Assembly, Annex 1.

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David Freestone

preparation will develop partnerships with the FAO Western Central Atlantic Fisheries Commission, the IOC Sub-Commission for the Caribbean and Adjacent Regions and the UNEP Caribbean Environment Programme. In the Black Sea all three GEF Implementing Agencies are involved, a new and long overdue fisheries convention is being negotiated between all six of the Black Sea littoral states. The project seeks to provide technical support to the overall process of rational exploitation of marine living resources without interfering with the negotiation process, so that key habitats such as Phyllophora beds are protected.

In the Benguela Current LME project

implemented by UNDP, an interim Benguela Current Commission is being developed. The functions of the Commission will be to produce annual stocks assessments, ecosystem reports, and to provide advice on harvesting resource levels and other matters relating to sustainable management and resource use, particularly of fisheries in the Benguela Current LME. In the Project for the Implementation of the Strategic Action Program of the Pacific SIDS (Pacific SIDS 1) the Project aimed to level the playing field among the Pacific SID states and the other negotiators of a regional fisheries Convention. After support and assistance from the GEF for SIDS participation in seven negotiating sessions, the first Fisheries Convention to be successfully negotiated on the basis of the 1995 UN Fish Stocks Agreement was finalized in September 2000: The Convention on the Conservation and Management of Highly Migratory Fish Stocks of the Western and Central Pacific Ocean. 64

64

For a detailed assessment see Transform Aqorau, “Tuna Fisheries Management in the Western and Central Pacific Ocean: A Critical Analysis of the 2000 Convention” (2001) 16 International Journal of Marine and Coastal Law 379-432.

336

Capacity Building and the Implementation of the LOSC

Marine Pollution Projects Financed by GEF

Since 1991 the GEF has also programmed resources to assist states address pollution from ships by incorporating environmental considerations into the maritime shipping sector. Activities include financing pump-out facilities for oily ballast water and other contaminants, accident and spill contingency planning as well as vessel traffic systems and integrated management around ports to prevent spills of contaminants. The Caribbean Ship-generated Solid Waste Project (WB) supported countries to take action to prevent pollution by garbage from cruise ships and tourism projects. Five of the six participating counties have developed new legislation, put education programmes in place and implemented waste reduction and diversion initiatives. The Global Ballast Water Management Programme (UNDP/IMO) in support of the 2004 International Convention for the Control and Management of Ships' Ballast Water and Sediments is a demonstration project for addressing alien species in ballast water and is undertaking activities that help to deal with safety considerations in the midocean transfer of ballast waters to minimize transfer of noxious alien species. GEF is also moving to demonstrate technologies that can prevent oil spills rather than looking at spill control and countermeasures. A number of projects are under preparation to test precision navigation systems, the most prominent being developed by the World Bank in collaboration with IMO for the Malacca Straits in Indonesia and Malaysia, the so-called Regional Marine Electronic Highway Demonstration Project (WB/IMO). This is the first of a series of such projects and the Bank is preparing a second for the Indian Ocean (the Western Indian Ocean Marine Highway Development and Coastal and Marine Contamination Prevention Project). Similarly, the Inter-

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David Freestone

American Development Bank—utilizing “direct access” to the GEF without going through one of the implementing Agencies—is preparing a Maritime Transport Pollution Control in the Gulf of Honduras. 65

The World Bank and Fisheries

In the 1980s, for a number of reasons including criticism of its investment strategies, the World Bank largely withdrew from the fisheries sector. Although there were fishery and aquaculture components of projects after that time, the technical capacity within the Bank was substantially reduced. In the late 1990s key decision-makers began to realize the importance of fisheries for the Bank’s poverty alleviation mission and an initiative was launched—the Forum for Sustainable Fisheries—to re-engage the major agencies and donors in a coordinated attempt to put fisheries back on the Bank’s development agenda. In 2001 a Global Fisheries Trust Fund, a US$ 1 million fund was established with the support of the Japanese Fisheries Agency. Over a three year period it financed the development of a portfolio of concept notes for sustainable fisheries projects as well as a strategy paper for the Bank’s future involvement in the sector. The 2002 WSSD POI provided the important impetus necessary to revive interest in the sector within the Bank and a new sector strategy was prepared entitled Saving Fish and Fishers and published at the end of May 2004. During 2004, new fisheries staff was hired and in 2005 the Bank took a leading role in launching a Global Program on Fisheries (PROFISH) in partnership with a number of developing countries, donors and technical agencies, such as FAO and WorldFish. PROFISH will be supported by a multi-donor trust 65

See also Coral Reef Targeted Research and Capacity Building for Management (WB); Reduction of environmental impact of tropical shrimp trawling (e.g. by-catch technology etc.) (UNEP)

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Capacity Building and the Implementation of the LOSC

fund to help develop and promote solutions to core fisheries problems. It aims to create knowledge and awareness, foster effective ways to control fishing capacity, and create incentives for sustainable production as well as improve the capture and distribution of benefits from fisheries to fight poverty. It will also aim to provide a platform for a dialogue between stakeholders on controversial issues, such as reducing subsidies, making foreign access agreements more transparent and equitable, and controlling illegal, unregulated and unreported (IUU) fishing. 66 A complementary initiative is the Strategic Partnership for Sustainable Fisheries Management in the Large Marine Ecosystems of SubSaharan Africa. The partnership, with FAO, WWF and the GEF, aims to bring about the needed policy reforms and improvements in management identified in sector studies supported by PROFISH. It will aim to restore degraded fish stocks and put production on a sustainable basis in line with the WSSD POI targets for fisheries and environmental management. It will be supported by an Investment Fund for Sustainable Fisheries which aims to leverage some US$60 million in GEF grants on a 3:1 co-financing ratio to deliver a total of US$ 240 million of investments in sustainable fisheries projects over the next ten years. Although the partnership is focused on subSaharan Africa, it may be adaptable to other regions as well.

Tanzania Marine and Coastal Environment Management Project

A prime example of the sort of project that will be supported by the Strategic Partnership is the Tanzania Marine and Coastal Environment Management Project (MACEMP) that was approved by the World Bank 66

PROFISH was formally announced by World Bank Environment Director, Warren Evans at the NEPAD “Fish for All” Summit in Abuja, Nigeria 22-25 August, 2005.

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David Freestone

Board in July 2005. It was initially envisaged that this would be a pilot project under the partnership. As the preparation of the wider Strategic Partnership took longer than expected the MACEMP project went forward independently. It may be brought back under the Partnership umbrella once the GEF total financing has received Council approval. This project involves an IDA credit of some US$50 million and a GEF Grant of US$10 million. It has key components addressing more systematic collaboration between Zanzibar and the Mainland (both separate elements under the constitution of the United Republic of Tanzania) in the management of the countries EEZ resources; the establishment of a Fisheries Authority to oversee the management of EEZ fisheries resources and gather appropriate resources rents; the negotiation of outstanding maritime boundaries; regional cooperation on management of straddling stocks, linking with the South-west Indian Ocean LME project discussed above, including the development of reciprocal enforcement arrangements; establishment and management of mangrove and coral reef conservation areas; and the development of alternative livelihoods projects to reduce pressures on demersal stocks.

Conclusions

A number of conclusions can be drawn from this review of the work of the Bank and GEF in this field. For obvious reasons the UNCLOS III negotiators concentrated on the regulatory aspects of the substantive legal regime they were developing. Although they recognized the important roles to be played by other institutions in clarifying and updating standards and in implementation, they perhaps underestimated the resources that would be needed by many developing countries for them fully to realize the benefits that the LOSC could offer them. The LOSC does of course recognize the

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Capacity Building and the Implementation of the LOSC

importance of new income streams to support new activities, such as those envisaged for the International Sea Bed Authority. However, it would be some 10 years before the UNCED recognized the strategic importance of designated financing sources for new activities. The 1995 UN Fish Stocks Agreement was able to build on that development, but many of the activities which LOSC envisages coastal and other states taking (such as the designation and management of EEZs, or archipelagic waters) are specifically designed to increase their control over, and financial return from, marine resources. Regrettably, only a few developing states have been able to do this with great success and often this has only been as a result of support through regional bodies, such as the South Pacific Forum and its Forum Fisheries Agency. There is still a need for the further evolution and development of the regulatory framework established by the LOSC. Nevertheless, as former ITLOS Judge Anderson points out, there is a shift in emphasis in the law of the sea community from what he calls standard setting to a period of auditing. 67 Essentially, the emphasis has now moved to implementation. This is particularly true in relation to implementation at national and regional levels and particularly true in relation to fisheries management and pollution control. Despite the fact that the GEF is not designated as a financial mechanism for the LOSC, 68 it has devoted substantial amounts of money to support LOSC related activities. These have not only been through the

67

David Anderson, “Freedom of the Seas in the Modern Law of the Sea” in The Law of the Sea: Progress and Prospects, (David Freestone, Richard Banes and David Ong, eds.), Oxford, OUP, 2006, pp. 327-346. 68 See Rudolf Dölzer, Implications of Agenda 21 and UNCLOS for International Waters as a GEF Focal Area, GEF Working Paper, 1998, Washington, DC, who argues that the GEF should be seen as a financing mechanism for the 1982 Convention.

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international waters focal area, but also though the conservation of the biodiversity focal area, particularly for programmes involving management of marine and coastal resources. In the meantime, the World Bank itself has recognized the economic importance of environmental conservation and the sustainable management of natural resources. In the aftermath of the 2002 Johannesburg World Summit for Sustainable Development, at which the importance

of

sustainable

fisheries

was

a

major

and

relatively

uncontroversial agenda item included in the WSSD Plan of Implementation, there has been a surge in support within the Bank and the GEF for work on sustainable fisheries. Sustainable fisheries is now on the way to becoming a significant Bank and GEF work programme. At the same time the GEF is also supporting a range of other marine projects designed to address problems of marine pollution and loss of biodiversity. Looking back, despite the far-sighted and innovative nature of the regime designed by UNCLOS III, there have been major problems with implementation. For developing countries, the wholesale transfer to coastal States of jurisdiction over the marine resources within their 200 nm EEZs has not always resulted in improved conservation and management of stocks within those zones. As Gjerde has pointed out, new resources and renewed political will are necessary to address the new issues emerging on the global marine environmental agenda, 69 and despite a plethora of legal instruments there is nevertheless increased evidence of anthropogenic impacts on the oceans, from a range of sources including vessel sources, land based sources, and from the impacts of atmospheric emissions. Despite the large 69

See Kristine M. Gjerde (ed), High Seas Fisheries Governance: Moving from Words to Action, Martinus Nijhoff, The Hague, 2005 (special Issue (2005) 20 International Journal of Marine and Coastal Law); K. M. Gjerde, “High Seas Fisheries Management under the Convention on the Law of the Sea: in The Law of the Sea: Progress and Prospects, (David Freestone, Richard Banes and David Ong, eds.) Oxford, OUP, 2006, 281-307.

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amounts of money disbursed over the last decade and a half, it is clear that neither the World Bank nor the GEF alone has the resources to address these issues systematically. However, in collaboration with a wide spectrum of other international agencies as well as with other entities that range from NGOs to the private sector, the GEF has emerged as a major financier of projects promoting global environmental benefits for the oceans, in a way the UNCLOS III negotiators cannot have foreseen. Similarly, the World Bank, with its mandate of poverty alleviation, has begun to look afresh at the law of the sea regime through a sustainable development lens, perhaps not fully appreciated in 1982, and to recognize the importance of the sustainable management of coastal and ocean resources to the livelihoods of people in developing countries. It is now beginning, in association with a wide range of partners, to assist developing countries more systematically to manage and capture the benefits the LOSC regime has to offer.

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Cutting a Gordian Knot?: Towards a Practical and Realistic Scheme for the Transfer of Marine Technology Ariel W. González h Abstract More than ten years after the entry into force of the United Nations Convention on the Law of the Sea, the scheme of Transfer of Marine Technology (TMT) set out in its Part XIV has not been implemented. This may prove paradoxical, since Part XIV is critical for the overall success of the regime of marine scientific research (MSR) that the same Convention attempts to promote in its Part XIII. The perhaps excessive expectations of the TMT scheme—in particular, among many developing coastal States—clashed with the negative from the holders of marine technology who did not want to simply hand out their know-how and equipment related to oceanographic research. In turn, the lack of adequate means to study and understand their adjacent maritime spaces makes many of the referred coastal States reluctant to authorize, in the framework of Part XIII, other countries to engage into marine scientific research in their waters—usually, those same countries holding marine technology. This paper reviews the efforts recently undertaken to address this Gordian knot by the Advisory Group of Experts on the Law of the Sea of the Intergovernmental Oceanographic Commission (ABE-LOS/IOC). In particular, it attempts to show that the IOC Criteria and Guidelines on TMT adopted in 2003 by this Group offer an opportunity to simultaneously put into effect Part XIV and

h

Legal Advisor’s Office, Ministry of Foreign Affairs of Argentina ([email protected]). Paper prepared in the framework of the 30th Virginia Law of the Sea Conference: Law, Science and Ocean Management (Dublin Castle, Ireland; July 12th -14th, 2006). The opinions hereby expressed are of the exclusive responsibility of its author. The author’s PowerPoint presentation can be viewed on the accompanying CD.

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reinvigorate the application of Part XIII. This opportunity may be both timely and relevant, at a time in which rapidly evolving technologies for the measurement and collection of oceanographic data are testing the current MSR regime. 1. INTRODUCING THE GORDIAN KNOT

Not all international instruments become applicable or operative immediately after their entry into force. In fact, this is a privilege that few of them can enjoy. As a rule of thumb, the more prescriptive and institutionbuilding the instrument is, the more delayed will become its application. There is, of course, a risk involved in such delay: the instrument may transform itself in lettre morte, perhaps of interest to the academic but not to the practitioner. This is a risk that Part XIV of the United Nations Convention on the Law of the Sea (UNCLOS) may be increasingly facing. More than ten years after the entry into force of the Convention, the international scheme for the transfer of marine technology (TMT) set out in Part XIV has not been implemented. To provide just a few specific examples: x

Article 266, paragraph 2, of UNCLOS provides that States “shall promote the development of the marine scientific and technological capacity of States which may need and request technical assistance in this field”, with regard to marine scientific research (MSR), among various other activities, and having particular consideration of the needs of “developing States, including landlocked and geographically disadvantaged States”. However, specific TMT agreements of this sort are the exception rather than the rule. Some TMT provisions, of a very general nature, may only

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be found in a few framework cooperation agreements at the bilateral level. 1 x

Among the various measures included in Article 269 to achieve the main objectives of TMT, it is recommended that States, “directly or through

competent

international

organizations”,

establish

programmes of technical co-operation for the effective transfer of all kinds of marine technology to interested States, particularly developing and land-locked States, or undertake projects and promote joint ventures with such States. 2 However, neither the practice of States, at the bilateral or regional levels, nor that of competent international organizations, offer clear examples of programmes, projects or joint-ventures specifically applied to TMT as a whole. x

3

Article 270 calls for international cooperation to develop TMT, among other means by facilitating an “appropriate international funding for ocean research and development”. However, there is no international fund or similar financial mechanism for TMT, of the kind that is regulated, for instance, in several environmental agreements. 4

1

See some specific considerations on bilateral agreements in Section 2, below. Paragraphs a) and e), respectively. 3 Churchill and Lowe (The Law of the Sea, third edition; Manchester University Press; Manchester, 1999; p. 418) recognize that, for example, the Food and Agriculture Organization (FAO) and the International Maritime Organization (IMO) have promoted technical assistance and the transfer of technology in the fields of fisheries and shipping safety/pollution, respectively. Even assuming that these activities were effective, they relate more to capacity-building and technology for a specific application than to the scientific understanding of the oceans and their resources. 4 For instance, in the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, and its 1990 London amendments, which regulate a Multilateral Trust Fund to promote transfer of technology facilitating that developing countries meet their obligations under the Protocol. 2

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x

In what is perhaps the most operative section of Part XIV, Articles 275 to 277 assign specific roles to States and competent international organizations in the setting up and functioning of centres for the promotion of TMT, both at the national and regional levels. However, scant evidence of such centres may be found. 5

What is the reason for this lack of implementation? Leaving aside considerations related to the ideological context in which Part XIV—in fact, the whole Convention—was negotiated 6 , the truth is that the thirteen articles of such Part

7

do not set out a clear-cut regime of international

transfer of marine technology. In particular, they are somewhat ambiguously drafted as to the rights and obligations of States—both donors and recipients of marine technology—as well as of the “competent international organizations”, and tend to confound the following two different but interrelated elements:

5

Churchill and Lowe (The Law of the Sea, ibid.; p. 418) rightly recall that “a number of regional, mainly UN-sponsored centres of technology transfer have been set up in Asia, Africa, Latin America and the Middle East, although none of them is specially for marine technology” (bold inserted by the author) 6 At the time of the UNCLOS negotiations, strong expectations as to the distribution of resources that the Convention should promote were raised by developing countries, based mainly in the “New International Economic Order” approved by UN Resolutions 3201 and 3202 (1 May 1974) and the Charter of Economic Rights and Duties of States (1974). Part XIV, generated in the realm of the Sea Bed Committee –where the concept of the Area as “common heritage of the mankind” was not certainly alien to this context. 7 In reality, Part XIV constitutes the nucleus of a number of provisions more or less directly related to capacity-building and TMT, that are scattered throughout the Convention –to put an example, Article 244 (2), addressing capacity-building and TMT for MSR. “Scattered” is a most appropriate term, since such provisions appear dissociated both among themselves as well as from Part XIV. Furthermore, as the International Ocean Institute (IOI) has well remarked, a whole set of TMT provisions in the Area disappeared with the implementation agreement of 1994 (IOI, “Discussion Paper compiled for UNICPOLOS II”, 2002, page 12).

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x

The purpose of Part XIV, which is to build the capacity of interested States Parties—that is, to enable such States Parties, in particular

“ developing

States,

including

land-locked

and

geographically disadvantaged States ”, to generate appropriate marine scientific and technological capacity to execute and benefit from various activities regulated by UNCLOS, including MSR; and x

The main tool for the implementation of the referred purpose—that is, the setting up of a regime of transfer of marine technology, for which the Convention requires the cooperation of all States “directly or through competent international organizations”.

Such deficits in the structuring and drafting of Part XIV led several States Parties of UNCLOS (essentially, developing States) to consider TMT as an end in itself—in other words, they “transformed” TMT into the purpose of Part XIV. Several other States Parties—essentially, developed States—tended for their part simply to ignore TMT as presented in Part XIV, concentrating in the purpose of capacity building by means (mainly, at the bilateral level) chosen by them. These different readings of Part XIV would quickly lead to disruption in the application of its provisions. And such disruption could have negative effects going well beyond Part XIV. There is, in fact, a strong linkage between this Part and the scheme for MSR set out in Part XIII. One main ideal behind the drafting of Part XIV was to provide all States with a homogeneous level of marine technology, at least of the technology that coastal States need to ascertain –and understand—the resources of their adjacent maritime areas, mainly through research and collection of appropriate data. Following this ideal, such harmonization could in turn encourage coastal States—in particular,

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developing ones—to facilitate MSR activities by other States or by foreign scientific institutions in waters subject to their jurisdiction. For instance, a technologically developed coastal State would be more susceptible to the benefits and opportunities of granting the consent required in Article 246 of UNCLOS for MSR projects carried out in its Exclusive Economic Zone (EEZ) or on its continental shelf by other States or competent international organizations. In this way, freedom of MSR for the benefit of the international community could become a reality. This vicious circle may, however, not occur. Instead, many developing coastal States could become increasingly frustrated with what they perceive as the indifference—or even reluctance—of developed States to share their marine technology. Probably feeling that such a technological gap may threaten the marine resources over which they have sovereignty or jurisdiction according to UNCLOS, such coastal States would tend to restrict or even close access to their maritime spaces until they are able to develop their own research capabilities. However, such development depends mostly on those same States who find no benefit from simply handing out the technology. The Gordian knot 8 is thus configured: the prize to untie it may become no less than making UNCLOS fully operative as “a legal order for the seas and oceans”.

2. SOME (FRUSTRATING) ATTEMPTS TO DISENTANGLE THE KNOT

8

The Gordian knot, the well-known Phrygian legend according to which Alexander the Great directly cut a knot he could not untie, cleverly circumventing in this way the prophesy of an oracle: the one to untie the knot would become king of Asia. It is often used as a metaphor for an intractable problem, solved by a bold stroke ("cutting the Gordian knot").

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It would be unfair to conclude that the regime set out in Part XIV was abandoned by the international community as soon as—or even before— UNCLOS entered into force 9 . On the contrary, several efforts were made, at various levels, to address the need of, in particular, developing coastal States to know better—or simply to know—about the resources of and processes within the maritime spaces adjacent to their coasts. Allowing for some didactical leeway, such efforts would fall under the following categories: Efforts within IOC

It is not adventurous to state that capacity building was one of the reasons for the creation of the Intergovernmental Oceanographic Commission of UNESCO (IOC) in 1960. In fact, it was a main driving force of the Preparatory Meeting of the Intergovernmental Conference on Oceanographic Research—the direct precedent of IOC—held at UNESCO in March 1960. At that Conference, the Delegate of the United States, Roger Revelle, considered that …in assisting the development of the marine sciences in the underdeveloped countries, the primary need is for training young scientists, to teach them not only how to make observations but also how to interpret their observations, to understand the purposes of making the observations, and the results that can be obtained in attacking scientific problems of the oceans. 10 Capacity-building was omnipresent at that Conference. Furthermore, although no direct reference was made to TMT—a expression not coined at 9

The same may be said, for instance, of the regime of exploration and exploitation of the deep-sea bed, as it was originally regulated in Part XI. 10 “Report of the Preparatory Meeting of the Intergovernmental Conference on Oceanographic Research” (UNESCO, 21-26 March 1960) – Document UNESCO / NS / 163 (13 May 1960), Annex II, page 12.

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the

time—some

of

the

Conference’s

recommendations

tacitly

acknowledged at least some form of it 11 Twenty years later, IOC/UNESCO tried to interpret the will of the founding fathers of the Commission through its working Committee for Training, Education and Mutual Assistance in the Marine Sciences (TEMA). 12 Analysing the implications for the regulation of the ocean of the deliberations that at the time were taking place at the Third UN Conference on the Law of the Sea 13 , the working Committee was possibly the first to recognize the strong links between MSR and TMT. In particular, it “noted with grave concern the ever-widening gap between the need for data and knowledge and the capability for acquiring it in developing Member States in the field of marine science and engineering technology”, and further noted “that the programmes of TEMA and of the UNESCO Division of Marine Sciences are not of sufficient magnitude to bridge the gap, and the results from UNCLOS call for urgent action in order to provide scientific and technological manpower required by the developing Member States” 14 To address this challenge, the working Committee adopted a “Comprehensive Plan for a major assistance programme to enhance the marine science capabilities of developing countries”. This Plan addressed the rationale for promoting not only capacity building but also TMT. 15 It

11

Ibid, page 3. See, for instance, recommendation (v), which states that training at sea “might be helped by UNESCO by making it possible for young scientists and technicians to participate in the work on board of well-equipped vessels of Member States which could accommodate these young people.” 12 “Marine Science and Ocean Services for Development: UNESCO/IOC Comprehensive Plan for a major assistance programme to enhance the marine science capabilities of developing countries” Document IOC/INF-62 – UNESCO, 1985. 13 Also called UNCLOS. 14 “Marine Science …”, op. cit., page 1. 15 “Extended maritime jurisdiction by coastal states has created a situation where self reliance in marine science is needed to ensure that their new rights, specifically

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furthermore made specific proposals (“modalities for the implementation” of the Plan), among which the establishment of “regional centres for marine scientific and technological research and training as envisaged” in UNCLOS. 16 Regrettably, the Comprehensive Plan did not have a systematic follow-up, nor could not get a sustainable financing. 17 TEMA tended to remain for years a declamatory item in the agendas of the governing bodies of IOC, with little or no discussion on TMT. 18

Initiatives in Other Conventions

Several environmental standard-setting instruments, such as the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer and its 1990 amendments, the 1992 Convention on Biological Diversity, or the to control resource exploration and exploitation, and the conduct of research, can be exercised and that they can benefit from this new situation for socio-economic development”. And also “Negotiations concerning access by others to zones of national jurisdiction make it in the interest of both developing coastal States and researching industrialized states wishing for access that there be competent scientific bodies on both sides. A similar argument applies to the transfer of marine technology.” Ibid, page 5. 16 Ibid, page 42. 17 It is particularly revealing, in this sense, that even at the moment for the adoption of the Plan, the Executive Board could not ensure specific financial commitments for its implementation, inviting instead funding agencies “to give favourable consideration to joining their efforts for such financement” and leaving to [developing] Member States the initiative to apply for such funds (Resolution ECXIII.15). 18 It is interesting to consult, in this regard, the report prepared by S.M.Haq, a former staff Member of IOC in charge of TEMA, entitled “Observations and experiences of selected TEMA activities during 1984-1994: History and Evolution of TEMA within IOC” (Document IOC-XVIII/Inf.2 of 13 June 1995). Most of the relatively few activities identified by Dr. Haq over what was however a crucial tenyear period for UNCLOS are training courses and workshops. This situation may be changing with the recent adoption by the IOC Assembly of a Strategy of the Commission for Capacity-Building. The integration of TMT to such Strategy remains, though, to be established.

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1995 Washington Declaration on Protection of the Marine Environment from Land Based Activities, include technology transfer provisions or schemes, in some cases quite detailed. 19 To describe them would exceed the objectives of this paper. What is important to mention here is that they do not relate to oceans, nor address TMT, and they are furthermore disconnected from each other. At the very best, their regulations may indicate a path or perhaps even an example to be followed by TMT. Bilateral Initiatives

Several Member States of the United Nations—in general, also Parties to UNCLOS—have an active policy in promoting bilateral agreements related to the transfer of marine technology. Such agreements are rarely of an intergovernmental nature, being concluded at the institutional

level

(e.g.

specialized

institutes;

universities).

When

intergovernmental, the agreement tends to be of a more general nature— typically, a framework cooperation agreement with a section on science and technology.

Furthermore, most of them relate to areas different from

marine science. 20 19

For a review of some of those schemes, see Yusuf, Abdulqawi “Technology Transfer in the Global Environmental Agreements: a New Twist to the North-South Debate”. In Patel and Yusuf (eds.), International Technology Transfer, Kluwer Law International, 2001; pages 313-320. 20 Recent examples of bilateral initiatives of this kind are the capacity building activities of the Ocean Research Institute of the University of Tokyo (Japan Keisuke Taira) and the ASEAN-Canada Cooperative Programme on Marine Science (CPMS). The two initiatives, though, concentrate on capacity-building activities and do not address specifically TMT. For its part, UNCTAD prepared in 2001 a “Compendium of International Arrangements for Transfer of Technology” (Document UNCTAD/ITE/IPC/Misc.5). This Compendium was at the basis of the work of an Expert Meeting on International Arrangements for the Transfer of Technology set up in the realm of UNCTAD’s Commission on Investment, Technology and Related Financial Issues (Report in Document UNCTAD

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Cutting a Gordian Knot?

In what could be considered a peculiar modality of the bilateral approach, a State may agree with other less-developed coastal States to engage itself in research activities in the EEZs of such other States, and to share with them the results of the research until they are prepared to develop their own capabilities. However, more than TMT, what we have here in practice is a “hiring of technology” by the developing State, with no added value for it in the long term.

The UNGA Resolutions on Oceans and the Law of the Sea and UNICPOLOS

The annual resolutions through which the United Nations General Assembly (UNGA) mainly examines the state of implementation of UNCLOS should provide a measure of the attitude of the international community towards TMT. Until quite recently, the attitude could be considered one of shy silence. In fact, none of the UNGA resolutions between 1994—when UNCLOS entered into force—and 2000 even mention the term “transfer of marine technology”. Such resolutions timidly refer to “the importance of education and training in the field of ocean affairs and the law of the sea”21 or invite Member States “to contribute to the further development of the

TB/B/COM.2/EM.9/L.1; July 2001). Again, these arrangements are not related to TMT, but they may offer best practice for their implementation. As the IOI has observed, those who may be related to TMT appear disconnected between them and from Part XIV. (“Discussion Paper,” op. cit., page 8) 21 See Resolutions A/RES/53/32 (6 January 1999) and A/RES/54/31 (18 January 2000); Preamble.

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fellowship programme on the law of the sea and training and educational activities on the law of the sea ” 22 . A bit more pertinently, in 1997 the Assembly reaffirmed “the importance of ensuring the uniform and consistent application of the Convention and a coordinated approach to its overall implementation, and of strengthening technical cooperation and financial assistance for this purpose” 23 , and a year later requested “the Secretary General to continue to carry out the responsibilities entrusted to him by the Convention and related resolutions of the General Assembly [by] … (f) Strengthening training activities in ocean and coastal area management and development”. 24 Such references, though, were insufficient to install capacity-building—and even less TMT—in the multilateral agenda. The oblivion seems finally to be addressed at the beginning of 2001, with the adoption of Resolution A/RES/55/7 25 . This Resolution is innovative in several aspects. For the first time the international community, embodied in the UNGA Resolution, expressly recognizes that capacitybuilding is a key element for an appropriate implementation of UNCLOS. Accordingly, both the UN Secretary-General and the competent international organizations are “requested” to review their strategies in this area. 26

22

See paragraph 12 of Resolutions A/RES /50 /23 (22 December 1995) and A/RES/51/34 (17 January 1997), as well as paragraphs 19 and 29 of Resolutions A/RES/53/32 (6 January 1999) and A /RES /54 /31 (18 January 2000), respectively–where appears a specific reference to the “TRAIN-SEA-COAST programme of the Division for Ocean Affairs and the LOS”. 23 Paragraph 17 of Resolution A/RES/51/34. 24 Paragraph 11 of Resolution A/RES/52/26. 25 Distributed on 27 February 2001. 26 The full text of paragraph 23 of the resolution reads: “Requests the SecretaryGeneral, in cooperation with the competent international organizations and programmes, including the Food and Agriculture Organization of the United Nations, the International Labour Organization, the International Hydrographic

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Cutting a Gordian Knot?

The Resolution also regulates distinctly and in connection to UNCLOS the issues of capacity-building and TMT, recognizing the specificity of the latter. The UNGA stresses, in fact, that there is a …need to consider as a matter of priority the issues of marine science and technology and to focus on how best to implement the many obligations of States and competent international organizations under Parts XIII and XIV of the Convention. To reflect this priority, States are called …to adopt, as appropriate and in accordance with international law, the necessary national laws, regulations, policies and procedures to promote and facilitate marine scientific research and cooperation. 27 This doesn’t mean that the United Nations stood away from the matter. On the contrary, it took advantage of UNICPOLOS, the—at that time, recent—consultative process to facilitate the review of developments in ocean affairs 28 , to recommend, that, at its second session, such process

Organization, the International Maritime Organization, the United Nations Development Programme, the United Nations Industrial Development Organization, the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization, the United Nations Environment Programme, the United Nations Conference on Trade and Development, the World Meteorological Organization and the World Bank, as well as representatives of regional development banks and the donor community, to review the efforts being made to build capacity as well as to identify the duplications that need to be avoided and the gaps that may need to be filled for ensuring consistent approaches, both nationally and regionally, with a view to implementing the Convention, and to include a section on this subject in his annual report on oceans and the law of the sea;”. Also pertinent is paragraph 26, through which the UNGA acknowledges “the need to build national capacity for the integrated management of the coastal zone and for the protection of its ecosystem, and invites relevant parts of the United Nations system to promote these aims, including through the provision of the training and institutional support needed to achieve them.” 27 Paragraph 32. 28 Resolution A/RES/54/33

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Ariel W. González

addressed “marine science and the development and transfer of marine technology as mutually agreed, including capacity-building in this regard”, as one of its two topics for discussion. 29 The second session of UNICPOLOS took place in New York, from 7 to 11 May, 2001. Issues of marine science and TMT were addressed by “Panel A”. The discussions at such Panel did not advance much as regards TMT. In fact, the Panel limited itself to recalling the provisions of UNCLOS applicable to capacity-building and TMT and to reiterate questions posed many times already. These included: “How can agreements of all kinds be facilitated to promote the transfer on fair and reasonable terms of marine scientific knowledge and technology ? ” or “ Where can improved international cooperation and coordination foster favourable economic and legal conditions for the transfer of marine technology on an equitable basis?” 30 . The Panel did positively identify, though, a number of areas “in which marine science and marine technology are fundamental for taking sound decisions”. Oceanography is among such areas, described as “the understanding and prediction of oceanic currents, temperature, salinity and stratification (especially in relation to phenomena such as El Niño and La Niña), ocean climate interrelationships, especially effects of global warming and sea level rise ; integration of oceanographic data with economic and social data.” 31 At its next session, at the end of 2001, the UNGA not only confirmed the high priority assigned to capacity-building and, distinctly, to TMT but even reinforced it as regards the latter. Firstly, Resolution A/RES/56/12

29

32

Paragraph 41. The other topic was the cooperation and coordination to combat piracy and armed robbery at sea. 30 Appendix I of the report of the meeting, page 4. 31 Appendix I, page 5. 32 Distributed on 13 December 2001.

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Cutting a Gordian Knot?

develops in its preambular part the rationale for promoting TMT. The UNGA stresses: x

The need to achieve the effective application of marine scientific knowledge and technology, through cooperation at the regional and global levels, by ensuring access of decision makers to relevant advice and information, as well as to the transfer of technology and support for the production and diffusion of factual data and knowledge for end-users, as appropriate, taking fully into account socio-economic factors and traditional ecological knowledge;

x

The urgent need for cooperation at the international level to address the issue of the acquisition, generation and transfer of marine scientific data to assist coastal developing States; and

x

The need to develop, where appropriate, a strong regional focus in marine scientific research and technology, through existing regional organizations, arrangements and programmes, so as to ensure the most effective use of the available resources and the protection and preservation of the marine environment, particularly by avoiding duplication and by achieving a holistic approach to the scientific study of the oceans and their resources.

Secondly, the resolution specifically addresses, for the first time, donor agencies—both bilateral and multilateral—as partners in ensuring ... the availability in all States, particularly in developing States, of the economic, legal, navigational, scientific and technical skills necessary for the full implementation of the Convention and the sustainable development of the oceans and seas nationally, regionally and globally 33 Thirdly, the Assembly perceives the close connection between Parts XIII and XIV of UNCLOS, reuniting them under a single section. The Assembly stresses …the importance of the issues of marine science and technology and the need to focus on how best to implement 33

Paragraph 7

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Ariel W. González

the many obligations of States and competent international organizations under Parts XIII and XIV of the Convention, and calls upon States to adopt, as appropriate and in accordance with international law, such national laws, regulations, policies and procedures as are necessary to promote and facilitate marine scientific research and cooperation, especially those relating to consent for marine scientific research projects as provided for in the Convention”. 34 The Assembly also calls upon “States, through national and regional institutions, to ensure that, in respect of marine scientific research conducted pursuant to Part XIII of the Convention in areas over which a coastal State has jurisdiction, the rights of the coastal State under the Convention are respected and that, at the request of the coastal State, information, reports, results, conclusions and assessments of data, samples and research results are made available, and access to data and samples are provided, to that coastal State 35 . In the same line, the Advisory Group of Experts on the Law of the Sea of the Intergovernmental Oceanographic Commission of UNESCO (ABELOS/IOC) 36 was invited …to work, in close cooperation with the Division for Ocean Affairs and the Law of the Sea of the Office of Legal Affairs of the Secretariat and in consultation with relevant regional or sub-regional organizations as appropriate, on the development of procedures under Part XIII of the Convention 37 , UNGA urges relevant bodies of the United Nations system to develop, with the Intergovernmental Oceanographic Commission acting as a focal point, appropriate interactions in the field of marine science with regional fisheries organizations, environmental and scientific bodies or regional centres foreseen by Part XIV of the Convention, and encourages States to establish, where appropriate, such regional centres” 38 . The Assembly also 34

Paragraph 21. Paragraph 22. 36 Section 3 of the present paper, below. 37 Paragraph 23. 38 Paragraph 25. 35

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Cutting a Gordian Knot?

calls upon States, through bilateral, regional and international financial organizations and technical partnerships, to continue to strengthen capacity-building activities, in particular in developing countries, in the field of marine scientific research by, inter alia, training the necessary skilled personnel, providing the necessary equipment, facilities and vessels, and transferring environmentally sound technologies. 39 Furthermore, UNGA recommends: …that, in view of the [at the time] forthcoming World Summit on Sustainable Development, in its deliberations on the report of the Secretary-General on oceans and the law of the sea at its third meeting, the Consultative Process organize its discussions around the following areas: (a) Protection and preservation of the marine environment; and (b) Capacity-building, regional cooperation and coordination, and integrated ocean management, as important cross-cutting issues to address ocean affairs, such as marine science and the transfer of technology, sustainable fisheries, the degradation of the marine environment and the safety of navigation. 40 The next UNGA-LOS Resolution, A/RES 57/141 41 , builds upon the preceding and further develops in paragraphs 35 to 40 the rationale for the promotion of TMT. Paragraph 37 is particularly pertinent where it: Calls upon States and international financial institutions, including through bilateral, regional and international cooperation programmes and technical partnerships, to continue to strengthen capacity-building activities, in particular in developing countries, in the field of marine scientific research by, inter alia, training the necessary skilled personnel, providing the necessary equipment, facilities and vessels, and transferring environmentally sound technologies. 42 39

Paragraph 28. Paragraph 48. 41 Distributed on 21 February 2003. 42 Of interest are also the following preambular paragraphs: 40

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Ariel W. González

In its Resolution A/RES/58/240 43 (2003), UNGA begins to reiterate the above-mentioned concepts. While these reiterations help to reaffirm the place of capacity-building and TMT in

the multilateral agenda, the

Assembly appears incapable of translating its directions into concrete, operative proposals. The momentum gained in 2001 starts to lose force. Perhaps, the Assembly was expecting that the “competent international organizations” referred to in UNCLOS would take up their responsibilities. If such was the case, as we shall see below, IOC responded quickly to the invitation.

3. THE IOC GUIDELINES ON TMT: A STEP FORWARD?

No complex statistics are needed to conclude that none of the abovementioned efforts was very successful in promoting capacity-building and TMT. The harsh reality is that, at the beginning of the 21st century, a majority of UN Member States do not have adequate and/or updated capabilities or technological resources to make meaningful research within the waters under their jurisdiction. The main reason for this lack of results is that capacity-building and TMT were addressed: a) either at the declamatory level, with no translation “Underlining once again the essential need for capacity-building to ensure that all States, especially developing countries, in particular least developed countries and small island developing States, are able both to implement the Convention and to benefit from the sustainable development of the oceans and seas, as well as to participate fully in global and regional forums and processes dealing with oceansand law of the sea issues”; and “Emphasizing the need to strengthen the ability of competent international organizations to contribute, at the global, regional, sub-regional and bilateral levels, including through cooperation programmes with Governments, to the development of national and local capacity in marine science and the sustainable management of oceans and their resources.” 43 Distributed on 5 March 2004.

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into concrete actions, as in the case of IOC and the UNGA Resolutions; or b) from a one-sided perspective, as in the case of the bilateral agreements. Following the metaphor of this paper, the Gordian knot was simply stared at, or attempts were made to pull one of its ends. In both situations, the knot remained tight as ever. In this context, it was a welcome development that TMT was the first issue addressed by the Advisory Body of Experts on the Law of the Sea (ABE-LOS). This open-ended body of governmental experts was created in 1999 within the Intergovernmental Oceanographic Commission of UNESCO (IOC/UNESCO). Its task is to provide advice to the governing bodies of IOC on the issues that may arise in the course of what has been recognized by the State Parties of UNCLOS as the primary responsibility of the Commission with regard to the Convention: the implementation of Parts XIII and XIV. IOC quickly realized that TMT was an appropriate issue to start fulfilling the referred responsibility, not only because it was of concern to most Member States of the Commission, but also because of its strong links with MSR. Again, if an effective mechanism could be set up to promote TMT, the countries beneficiating from such mechanism would be less reluctant and/or more amenable to engage in cooperative projects for MSR. Consequently, at its first meeting in 2001, ABE-LOS created a specific SubGroup on TMT. 44 After two years of discussions both within the Sub-Group and in plenary, ABE-LOS recommended the adoption of “IOC Criteria and 44

Following the terms of reference established by the IOC Assembly, the SubGroup was open ended, worked by e-mail and in close consultation with UNDOALOS. It used as a “departure point” a document prepared by the IOC Secretariat in May 1997, entitled “Draft IOC Principles on the Transfer of Marine Technology” (IOC/INF – 1054, 29 May 1997). However, since this document repeated essentially the provisions of Part XIV, it had to be extensively redrafted.

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Guidelines on the Transfer of Marine Technology” (CGTMT). The 22nd session of the IOC Assembly (June 2003) of the Commission adopted without debate such Criteria and Guidelines. 45 Four critical features can be identified in the CGTMT, which responds to the main concerns of ABE-LOS and its Sub-Group. They are described below: Flexibility

Given the sensibilities generated around TMT in the past, it seemed clear from the outset that any mechanism imposed on Member States or felt by any of them as a constraint was doomed to oblivion. Such a flexible approach, though, needed a limit: it would not be effective to merely repeat Part XIV of UNCLOS or to underscore the importance and relevance of TMT. The CGTMT tried to meet both concerns. Firstly, concerning the form of the instrument to be produced, it avoids references to “Principles”, “Rules”, ‘Provisions” or “Standards”, in favour of a set of “Criteria and Guidelines”. As regards the substance of the instrument, a deliberate effort was made to depart from considerations of a theoretical nature, which would be in the best of cases non-conducive, and had instead a great potential for controversy. Therefore, the main thrust of the instrument is put into suggesting a mechanism for TMT that is attractive to all the concerned Member States. The framework of such mechanism is only briefly presented in Sections A (“Scope of Application”) and B (“Criteria”), with the main purpose of introducing two comforting ideas: the full compatibility of the mechanism

45

Included in the Annex to this paper.

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with UNCLOS and its complementarity with existing schemes for TMT, both at the bilateral or regional levels. Finally, the CGTMT are not carved into stone: Paragraph 2 of Section D allows them to be revised at the request of the main governing body of IOC, its Assembly.

Specificity

Unlike previous efforts at the international level, the CGTMT specifically addresses TMT as the scheme regulated in Part XIV of UNCLOS, a scheme not to be automatically assimilated with the more general category of capacity-building and training activities. These are only included when specifically referring to TMT. 46 In this way, the future users of the Criteria and Guidelines will be able to concentrate in the specific problems and challenges of TMT in the framework of UNCLOS, avoiding the restricted notion that acquisition of marine technology is only a matter of more courses and seminars, and allaying sensibilities as to reinterpreting or circumventing international law codified in UNCLOS . Logically, this specificity requires a distinct definition of TMT. This is provided in Section A, paragraph 2, of the CGTMT, which reads as follows: For the purposes of these criteria and guidelines, marine technology refers to instruments, equipment, vessels, processes and methodologies required to produce and use knowledge to improve the study and understanding of the

46

Following paragraph 1 of Section A, the CGTMT aim at “providing a critical tool to promote capacity-building in ocean and coastal related matters through international cooperation” (bold introduced by the author).

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nature and resources of the ocean and coastal areas. In this sense, marine technology includes: (a) Information and data, in a user-friendly format, on marine sciences and related marine operations and services; (b) Manuals, guidelines, criteria, standards, reference materials; (c) Sampling and methodology equipment (e.g. for water, geological, biological, chemical samples); (d) Observation facilities and equipment (e.g. remote sensing equipment, buoys, tide gauges, shipboard and other means of ocean observation); (e) Equipment for in-situ and laboratory observations, analysis and experimentation; (f) Computer and computer software, including models and modeling techniques; and (g) Expertise, knowledge, skills, technical/scientific/legal know-how and analytical methods related to marine scientific research and observation. 47 Some aspects of this definition may be highlighted, as follows: x

It applies exclusively “for the purposes” of the CGTM. In this way, fears of “interpretation” of UNCLOS were allayed.

x

It expressly recognizes know-how as a distinct component of TMT. As the International Ocean Institute (IOI) has observed, nowadays “technology is knowledge and information-based. It cannot really ‘bought’ and ‘transferred’: it has to be ‘learned’”. 48

47

It may be of interest to note that this definition is more articulated than the one provided in Annex III (basic provisions for exploration and exploitation of mineral resources in the Area), Article 5, paragraph 8, which reads: “For the purposes of this article, "technology" means the specialized equipment and technical knowhow, including manuals, designs, operating instructions, training and technical advice and assistance, necessary to assemble, maintain and operate a viable system and the legal right to use these items for that purpose on a non-exclusive basis”. 48 “Discussion paper”, op. cit., page 4. In the same line the Expert Meeting established in the realm of the Commission on Investment, Technology and Related Financial Issues of UNCTAD has expressed that “a key component of any transfer

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x

The definition tends to be open as to the extent of its object (“marine technology includes). It is interesting to note, though, until at the very last moment of its negotiation, a specific reference was made to the inclusion of “environmental sound technologies”. This reference was eliminated, following a strong negotiating pressure within ABE-LOS by Finland, Argentina, and other Members of the Group, who considered that transfer of marine technologies not being “environmentally sound” could not be accepted. A new criterion was instead included in the CGTMT recommending that in any transfer of marine technology due regard is given to “the importance of the transfer of environmentally sound technologies”.

x

In accordance with the Statutes of IOC, and in recognition of the increasing importance of integrated coastal management, the application of the CGTMT includes not only the oceans but also the “coastal areas”.

x

instruments and equipment for the observation of the oceans are included in the definition, opening a way to the application of the CGTMT to “operational oceanography”.

Balance

The CGTMT attempt to substitute the confrontational logic inherent to TMT with a cooperative one. In other words, the instrument does not deal with suppliers vs. recipients, nor even with suppliers and recipients: it has to

process is the effective transfer of the skills and intangible know-how that ensure production capability” (Document TD/B/COM.2/EM.9/2, 1 June 2001).

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do with the networking of the Secretariat of IOC and all the Member States of the Commission with the purpose of promoting TMT. Two aspects of the CGTMT are particularly relevant for this feature: x

The development of cooperation schemes—in particular, jointventures or partnerships 49 —between the States and/or institutions involved in a given TMT 50 ; and

x

The double role assigned to the IOC Secretariat as a “benign broker” among the States and/or institutions involved in a given TMT; and as a promoter of TMT. These roles are described in detail, respectively, in Section C, paragraph 2 to 5, and in the same section, paragraph 1 (b) to (e).

For such an interactive scheme to work smoothly, a complete and adequate database becomes essential. In this sense, the CGTMT further assigns to IOC the task of establishing and coordinating a clearing-house mechanism whose components are presented in detail

51

and which is

modelled after the one promoted in the Plan of Action of the 1995 Washington Declaration on Protection of the Marine Environment from Land Based Activities. 52

Simplicity

Almost as a corollary of the feature described above, the CGTMT concentrate on projects rather than participants, and simplify the procedure 49

Following again the IOI: “the only effective method of technology transfer in this phase of the industrial revolution is joint venture in research and development”. Ibid, page 4. 50 Section C, paragraph 3 (b) of the CGTMT. 51 Section C, paragraph 1 (a) 52 Paragraph 42 of the Plan of Action.

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for the consideration of such projects. 53 According to the operational scheme that is at the heart of the CGTMT, a Member State interested in receiving marine technology as defined in the Criteria and Guidelines fills out a Transfer of Marine Technology Application (TMTA), specifically designed to be user-friendly. In this way, after making a preliminary examination of the TMTA, the IOC Secretariat identifies one or more interested donors of the marine technology required. If it succeeds, the Secretariat further facilitates contacts among the donors and the interested recipient, always trying to explore the possibility of a partnership, joint-venture or similar association. 54 In this way, a TMT project, elaborated on the basis of the TMTA, takes form. The IOC Secretariat’s role, though, does not necessarily end: the CGTMT favour its involvement, at the request of any of the two parties concerned, in providing relevant technical assistance for a successful execution of the project, as well as in assessing the project within two years after its completion. 55

53

The project-oriented approach on TMT was part of the recommendations to the World Summit on Sustainable Development (Johannesburg, 2002) included in the Co-Chairs’ Report from the Global Conference on Oceans and Coasts at Rio + 10 (UNESCO, December 2001). Recommendation 3.5 of the Report of such Conference, jointly sponsored by IOC and the Centre for the Study of Marine Policy of the University of Delaware, reads: “Encourage donors to create synergy among many « single issue » projects (such as biodiversity, coastal erosion) funded by multiple donors in the same national context which often operate with few connections among them, and to weave these into a comprehensive coastal management effort” (page 20). 54 Section D, paragraph 3 of the CGTMT. 55 Section D, paragraph 5 of the CGTMT.

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4. BY WAY OF CONCLUSION: A CALL FOR PRAGMATISM

The CGTMT may offer, then, a flexible, specific, balanced, and simple mechanism for finally making operative Part XIV of UNCLOS. In recognition of this potential, at the end of 2004 UNGA invited IOC to disseminate and implement the CGTMT, reigniting thus the process of promotion of capacity-building and TMT started three years earlier. 56 The IOC Secretariat produced a publication of the CGTMT, which have been further introduced at relevant scientific and academic events. However, dissemination and awareness-raising alone will not determine the success of the CGTMT. They need to be implemented, and to such end a good share of responsibilities falls within the IOC Secretariat. It is particularly important that the Secretariat: ƒ

begins the process of establishing the clearing house-mechanism set out in Section C, paragraph 1 (a);

ƒ

promotes the establishment of regional and/or sub-regional focal points for TMT, as indicated in Section C, paragraph 1 (c);

ƒ

seeks extra-budgetary funding for TMT activities, as required in Section C, paragraph 1 (e); and

ƒ

identifies possible “leading cases” showing the effectiveness of the CGTMT, taking advantage to such end of existing cooperation schemes.

56

Resolution A/RES/59/24, distributed on 4 February 2005. Paragraph 11 reads: “Encourages the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization to continue to disseminate and implement the Criteria and Guidelines on the Transfer of Marine Technology, approved by the Assembly of the Oceanographic Commission at its twenty-second session, in 2003”.

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However, no effort by the IOC Secretariat can replace action by the Member States themselves. In 2005, UNGA explicitly mentioned again the CGTMT, this time to encourage their use. 57

To such end, the current

situation and requirements of the scientific study of the ocean and its resources may offer an interesting inducement. In effect, as it has been pertinently observed for the transfer of technology schemes in other environmental conventions, a “reversal of roles” has been produced in the last years. The global dimension of the environmental problems makes developed countries behave as “recipients” in need of data and actions important to address such problems. Developing countries, in turn, which need to be persuaded to “supply” the data or “supply” their support to these actions. In such a context, transfer of technology provides benefits for both parties. 58 A similar evolution could be engineered by the awareness of the ocean as a “single space” and of the close interrelationship between processes occurring in it. The advent of operational oceanography as a tool to respond to this awareness makes it an excellent testing ground for cooperative schemes in the framework of the CGTMT. The day may be not far away to witness, for instance, transfers of knowhow and equipment allowing developing States to effectively contribute and take part in the global observation of the ocean for multiple purposes. That day the Gordian knot could finally be cut. As Alexander the Great did, the international community would also receive a kingdom: the oceans and its incommensurable resources, for the true benefit of humanity.

57 58

Paragraph 14 of A/RES/60/30, distributed on 8 March 2006. Yusuf, Abdulqawi, “Technology transfer …”, Ibid, page 315.

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Annex INTERGOVERNMENTAL OCEANOGRAPHIC COMMISSION (of UNESCO) IOC CRITERIA AND GUIDELINES ON THE TRANSFER OF MARINE TECHNOLOGY

A. SCOPE OF APPLICATION 1. The following criteria and guidelines aim at applying the provisions of Part XIV (Development and transfer of marine technology) of the United Nations Convention on the Law of the Sea (UNCLOS), providing a critical tool to promote capacity-building in ocean and coastal related matters through international cooperation. 2. For the purposes of these criteria and guidelines, marine technology refers to instruments, equipment, vessels, processes and methodologies required to produce and use knowledge to improve the study and understanding of the nature and resources of the ocean and coastal areas. In this sense, marine technology includes: a) Information and data, in a user-friendly format, on marine sciences and related marine operations and services; b) Manuals, guidelines, criteria, standards, reference materials; c) Sampling and methodology equipment (e.g. for water, geological, biological, chemical samples); d) Observation facilities and equipment (e.g. remote sensing equipment, buoys, tide gauges, shipboard and other means of ocean observation); e) Equipment for in situ and laboratory observations, analysis and experimentation;

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f) Computer and computer software, including models and modelling techniques; and g) Expertise, knowledge, skills, technical/scientific/legal know-how and analytical methods related to marine scientific research and observation. B. CRITERIA Transfer of marine technology should enable all parties concerned to benefit on an equitable basis from developments in marine science related activities—in particular, those aiming at stimulating the social and economic contexts in developing States—, taking into account the following criteria: a) Specific legal, institutional financial and scientific schemes should be developed in order to facilitate and foster transfer of marine technology at national, regional or sub-regional levels; b) Transfer of marine technology should be conducted on fair and reasonable terms and conditions. As a general rule, such transfer should be done free of charge, or at a reduced rate for the benefit of the recipient country; c) In conducting a transfer of marine technology, due regard should be given to: (i) The needs and interests of developing States, particularly land-locked and geographically disadvantaged States as well as other developing States which have not been able to establish or develop their own capabilities in marine sciences, scientific research, observations of the oceans and coastal areas, and related technology, or to develop the infrastructure needed to achieve such ends; (ii) Other legitimate interests including, inter alia, the rights and duties of holders, suppliers and recipients of marine technology; and (iii) The importance of the transfer of environmentally sound technologies, and d) Transfer of marine technology should take full advantage of new, existing or expected co-operation schemes, including joint ventures and partnerships, among Member States, appropriate international

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organizations, governmental and non-governmental organizations and/or private entities. In this regard, the Intergovernmental Oceanographic Commission of UNESCO (IOC), as a competent international organization recognized by UNCLOS for the promotion of international co-operation and the co-ordination of programmes in the field of ocean and coastal scientific research, related services and capacity-building, bears a special responsibility.

C. GUIDELINES FOR IMPLEMENTATION 1. As a competent international organization for promoting and facilitating transfer of marine technology, IOC, in consultation with relevant international, governmental and non governmental organizations, and other partners should: a) Establish and co-ordinate a clearing-house mechanism for the transfer of marine technology, in order to provide interested users in Member States with direct and rapid access to relevant sources of information, practical experience and scientific and technical expertise in the transfer of marine technology, as well as to facilitate effective scientific, technical and financial co-operation to that end. Such mechanism should include the following components, to which access should be ensured by using the most efficient means of communication: (i) A list of governmental, non-governmental or private entities interested in participating as donors in the transfer of marine technology. Such list should include information on the contact focal points, addresses, fields of competence, items to be transferred, and, eventually, cost and conditions for transfer ; (ii) Opportunities for projects or initiatives related to the transfer of marine technology; (iii) Sources, availability and, eventually, cost of marine scientific and technological information and data for transfer in different disciplines of marine sciences; (iv) A directory of marine research institutes which offer laboratory facilities, equipment and opportunities for research and training; (v) Offers of cruise studies at the global, regional and sub-regional levels;

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(vi) A list of available experts/specialists who can provide scientific and technical assistance; (vii) Universities and other organizations offering study grants and facilities in marine science; (viii) Workshops, seminars and training courses at global, regional, and subregional level, in particular those offering financial support; (ix) Study on national, sub-regional and/or regional rules and regulations, and case law studies concerning the transfer of marine technology and marine scientific research; (x) Links with national, sub-regional and/or regional agreements, institutions and centres holding information, experience and technical expertise of scientific relevance to the region concerned. b) Encourage national representatives of IOC Member States to include in their strategic planning specific components on the transfer of marine technology; c) Actively promote the establishment of regional and/or sub-regional focal points for the transfer of marine technology –preferably, within the existing regional or sub-regional structures of the Commission; d) Organize, as appropriate, within the framework of each session of its Assembly or meetings of its regional or sub-regional structures, conferences, seminars, symposia or similar events on particular issues related to the transfer of marine technology; and e) Seek contributions to the IOC Trust Fund or Voluntary Co-operation Fund for the purpose of promoting and facilitating transfer of marine technology. 2. Notwithstanding existing channels for the transfer of technology at the bilateral, multilateral, sub-regional or regional levels, any Member State may submit to the IOC Secretariat a Transfer of Marine Technology Application (TMTA), based on the standard format presented in the Annex. 3. Upon receipt of the TMTA, the IOC Secretariat will examine it, in consultation with the IOC Officers, the IOC scientific and technical

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subsidiary bodies and, as appropriate, other selected specialists. Such examination will aim at: a) Identifying, within a reasonable timeframe, adequate donor or donors from the list referred to in Section C.1 (a) (i), above; and b) Devising possible co-operation schemes, including joint ventures and partnerships, which may optimise the benefits of the expected transfer of technology. 4. Following the examination of the TMTA, the IOC Secretariat should: a) Forward the TMTA to the identified donor or donors; b) Facilitate contacts between the identified donor or donors and the recipient Member State, with the ultimate goal that, in a timely manner, both parties conclude an agreement, contract or other similar arrangements, under equitable and reasonable conditions, for the implementation of a Transfer of Marine Technology Project on the basis of the TMTA; 5. Additionally, the IOC Secretariat will: a) Provide, at the request of the donor / donors or the recipient, technical assistance for the implementation of the Transfer of Marine Technology Project. Such assistance may include, as appropriate: (i) Expert missions, the funding of such missions should be discussed among the donor /donors, the recipient country and the IOC; (ii) Technical training, as a follow-up to the transfer of marine technology. The funding of such technical training should be discussed among the donor /donors, the recipient country and the IOC; and (iii) An assessment of the results of the Project, within two years after its completion; and b) Promote and facilitate, as appropriate, the participation of scientists and/or experts from the recipient country in the scientific institutions of the donor / donors associated with the development of marine technology and/or technological research. The funding of such participation should be discussed among the donor /donors, the recipient country, and the IOC.

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D. FINAL PROVISIONS 1. The Executive Secretary of IOC should report regularly in written form to the Governing Bodies of the Commission on the implementation of these Criteria and Guidelines. 2. These Criteria and Guidelines may be revised at the request of the IOC Assembly.

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APPENDIX TRANSFER OF MARINE TECHNOLOGY APPLICATION (TMTA) This TMTA has been prepared in accordance with the Criteria and Guidelines on the Transfer of Marine Technology approved at the 22nd session of the IOC Assembly. It has been conceived as a starting point to promote and facilitate transfer of marine technology, by assisting interested Member States -in particular, developing States- in the process of defining a Transfer of Marine Technology Project, seeking adequate resources for its funding and contributing otherwise to its implementation.

1. DATA ON THE APPLICANT(S) Name: Address: Telephone: Fax: E-mail: Responsible officer or contact person (if appropriate):

2. NATURE OF THE APPLICANT(S) Please mark with a cross one or more of the categories identified below Governmental area/institution Non-governmental organization Private institution Other (specify):

3. OBJECT OF THE TMTA Please describe briefly the main objectives and expected results of the TMTA.

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4. TYPE OF MARINE TECHNOLOGY REQUIRED Please mark with a cross one or more of the general categories identified below and, as appropriate, provide specific information on the technology required. Supporting documents or materials, which may help to clarify your request, are welcome. Information and data Documentation Equipment Software Know-how Other Comments/Specifications:

5. ACTIVITIES PLANNED OR INITIATED BY THE APPLICANT: Please describe briefly any activities that have been planned or initiated by the applicant in relation to the object of the TMTA

6. OTHER RELEVANT INFORMATION

---------------------------------(PLACE AND DATE)

------------------------------------------(SIGNATURE OF BENEFICIARY)

----------------------------------------------------(SIGNATURE AND SEAL OF THE COMPETENT GOVERNMENTAL AUTHORITY )

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Capacity Building: A View from the United Nations Vladimir Golitsyn * Abstract The United Nations Convention on the Law of the Sea (Convention) was opened for signature on 10 December 1982 in Montego Bay (Jamaica), and entered into force on 16 November 1994, 12 months after the date of deposit of the sixtieth instrument of ratification or accession. The Convention provides the universal regime for all matters relating to ocean affairs and the law of the sea and is regarded as the “Constitution of the Oceans”. Almost simultaneous with the ratification processes to bring the Convention into force, a new impetus was added by the United Nations Conference on Environment and Development (UNCED). Agenda 21, and in particular Chapter17 dealing with seas and oceans. The Johannesburg World Summit has further articulated on the concepts contained therein. The world has witnessed an unprecedented technological growth and flow of scientific information in the last four decades. It is not surprising that the drafters of the Convention did not anticipate the technical complexities involved in the application of some of its provisions. It is now evident that without competent, timely and authoritative assistance, many States will be unable to implement the legal regime of the oceans under the Convention and a plethora of multilateral agreements and programmes that has followed. One of the central issues in the implementation of the Convention, therefore, is the issue of capacity-building. Developing States, Small Island Developing States (SIDS) and States with economies in transition are the most in need of assistance and have been widely recognized as such by the General Assembly, the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea, the Meetings of States Parties to the Convention, and the Commission on the Limits of the Continental Shelf. *

Director, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations.

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The United Nations Division for Ocean Affairs and the Law of the Sea provides a wide range of services to States and intergovernmental organizations and assists Member States in their efforts to derive practical benefits from the international legal regime for the oceans. In this area, emphasis is given to developing and building up the capacities of States, including human resources, institutional infrastructures, as well as legal and technical resources. The Division implements a number of capacitybuilding programmes ranging from award of fellowships, arranging training programmes, and providing assistance through trust funds. These have been elaborated upon in the present paper. In tune with the changing nature of support and assistance required by developing States, the Division has begun a proactive approach on emerging issues rather than to provide technical assistance upon request by States. The paper elaborates the capacity building policy of the Division and future activities.

I.

Introduction: Importance in the Context of Oceans

The United Nations Convention on the Law of the Sea (Convention) was opened for signature on 10 December 1982 in Montego Bay (Jamaica), and entered into force on 16 November 1994, 12 months after the date of deposit of the sixtieth instrument of ratification or accession. Almost simultaneous with the ratification processes to bring the Convention into force, a new impetus was added by the United Nations Conference on Environment and Development (UNCED). Agenda 21, and in particular Chapter 17 dealing with seas and oceans is based almost entirely on the Convention. Today, with 149 States Parties to the Convention, it provides the universal regime for all matters relating to ocean affairs and the law of the sea. It serves as the foundation for the development of regional and national

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ocean policies, as well as the development of related regional and international instruments. It is regarded as the “Constitution of the Oceans”. The world has witnessed an unprecedented technological growth in the last four decades. At the time of the first United Nations Conference on the Law of the Sea in 1958, it was thought that seabed exploitation was not likely in the near future. The continental shelf was defined in terms of vague criteria as extending up to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admitted of the exploitation of the natural resources. Ironically, during the negotiations of the Convention, one of the most controversial issues related to the regime for exploration and exploitation of seabed resources beyond the limits of national jurisdiction, at depths ranging from 1000 to 5000 metres. However, even during those negotiations, the knowledge and information available on the seabed and ocean floor was far less than is available today. As a consequence, it is not surprising that the drafters of the Convention did not anticipate the technical complexities involved in the application of some of its provisions. Economic well-being, peace stability and security, environmental protection and sustainable development are all inter-dependant. Indeed, this was evident as early as the Stockholm Conference on the Human Environment (1972) and as elaborated by the UNCED in Agenda 21. The Rio+ 10 summit in 2002, namely, the Johannesburg World Summit further articulated these concepts. The Johannesburg Plan of Implementation underscored that the oceans, seas, islands, and coastal areas form an integrated and essential component of the Earth’s ecosystem and are critical for global food security and for sustaining economic prosperity and the well-being of many national economies, particularly in developing countries. Ensuring the sustainable development of the oceans requires

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effective coordination and cooperation, including at the global and regional levels, between relevant bodies, and actions at all levels. The Johannesburg Plan of Implementation emphasized the need to promote integrated, multidisciplinary and multi-sectoral coastal and ocean management at the national level, and encourage and assist coastal States in developing ocean policies and mechanisms on integrated coastal management. The cumulative effect of these developments led States to recognize that their economic and social development are often intricately linked to the management of ocean resources, ocean-based activities and oceanic spaces in a manner consistent with the Convention and related regimes. There is also increasing realization that the very ecology of the ocean is far more complex and vulnerable than previously understood, and that advances in technologies and their deployment have far greater ecological impact than previously comprehended. In the light of the increasing scientific information, rapid technological breakthroughs, and increasing awareness of the ecological complexities, it is inevitable that ocean issues are addressed in a more genuinely interdisciplinary manner. Ocean management requires new managers and personnel who are truly skilled in both natural and social sciences and capable of effective inter-departmental, inter-ministerial, and inter-governmental cooperation. Certain States have developed ocean policies as a first step in discharging their responsibilities and exercising their rights under this regime and in an attempt to reach equilibrium between ocean-based activities and ecological sustainability (sustainable development). The majority, however, still lack the requisite human and financial resources to do so. Developing States, Small Island Developing States (SIDS) and States with economies in transition are the most in need of assistance and have been widely recognized as such in, inter alia, the

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debates and decisions of the General Assembly, the debates and co-chairs’ reports of the of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea, meetings and decisions of Meetings of States Parties to the Convention, and the deliberations and documents of the Commission on the Limits of the Continental Shelf. It is clear that without competent, timely and authoritative assistance, member States will remain unable to implement the legal regime of the oceans under the Convention which is further complicated by a plethora of multilateral agreements and programmes, each focusing on a particular aspect, and each with its own substantive provisions, meeting schedules, and even secretariats. This is in addition to the continuous work of numerous intergovernmental organizations and specialized agencies, each with a distinct mandate, specialized programmes and distinct constituencies. The resulting complexity of the international community’s response is staggering for any State, even more so for developing countries.

II.

Activities in DOALOS

Nature of Work in DOALOS: The Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, is the focal point in the United Nations system for ocean affairs and the law of the sea. It serves as the Secretariat for the United Nations Convention on the Law of the Sea and discharges the responsibilities entrusted to the Secretary-General in the Convention and related Agreements, as well as the mandates in resolutions of the General Assembly in the field of oceans and the law of the sea. The work of the Division involves coordination with the work of other international organizations as well as with the scientific community. In particular, the

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Division has a close cooperative relationship with the International Seabed Authority, and the International Tribunal for the Law of the Sea, the two other institutions established under the Convention, besides the Commission on the Limits of the Continental shelf for which it serves as the Secretariat. The Division provides assistance to the General Assembly as the global institution with competence in marine affairs, in its annual consideration, review and evaluation of developments related to the law of the sea and ocean affairs, including legal, political, economic, environmental, technical and scientific developments. In this context, the Division assists Member States in the formulation of the Assembly resolutions under the agenda item “Oceans and the law of the sea”. The Division also services the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea (the Consultative Process or ICP) established by the General Assembly to facilitate its annual review, in an effective and constructive manner, of developments in ocean affairs with an emphasis on identifying issues where international coordination and cooperation should be enhanced. The Division provides a wide range of services to States and intergovernmental organizations, including provision of information, advice and assistance, with a view to promoting a better understanding of the Convention, its wider acceptance, uniform and consistent application and effective implementation. It also assists Member States in their efforts to derive practical benefits from the international legal regime for the oceans. In this area, emphasis is given to developing and building up the capacities of States, including human resources, institutional infrastructures, as well as legal and technical resources.

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Why Capacity Building is Needed: One of the central issues in the implementation of the Convention is the issue of capacity-building. This has been demonstrated time and time again by statements made by delegations in different forums in the context of the consideration of a wide array of issues dealing with the implementation of the Convention.

As underscored in Agenda 21, the

ability of a country to follow sustainable development paths is determined to a large extent by the capacity of its people and its institutions as well as by its ecological and geographical conditions. Specifically, capacitybuilding encompasses the country’s human, scientific, technological, organizational, institutional and resource capabilities. The term “capacitybuilding” is more than just providing technical assistance. It includes other forms of assistance and cooperation and focuses on sustainability and on the development of national competencies. Capacity-building activities have the direct effect of enabling the beneficiaries to perform and sustain the targeted functions. The Division carries out a diverse range of activities relevant to capacity-building. These are: provision of advisory services; administration of trust funds; organization of briefings and training programmes; preparation of studies, handbooks and publications; maintenance of databases; and dissemination of information through the Internet. To meet the requirements of various international instruments and in light of the evolution of priorities, the Division is moving from the provision of technical assistance upon request, to proactive initiatives to better equip States to face the challenges of implementing the Convention and deriving benefits from it.

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III.

Existing Capacity Building Programmes

Fellowship and Training Programmes Hamilton Shirley Amerasinghe Memorial Fellowship Programme: The Hamilton Shirley Amerasinghe Memorial Fellowship is now in its nineteenth year of operation. Established in memory of the first president of the Third United Nations Conference on the Law of the Sea, Ambassador Hamilton Shirley Amerasinghe of Sri Lanka, the award has gained wide acclaim for its academic contribution to the overall understanding and implementation of the Convention. The Fellows pursue postgraduate-level research and training in the law of the sea, its implementation and related marine affairs in order to acquire additional knowledge of the Convention and to promote its wider appreciation and application. Fellows are required to spend a period of six months carrying out supervised research/study at a participating university of their choice, followed by three months of practical training at the Division, and depending on the topic of their choice, at other United Nations bodies, the International Tribunal on the Law of the Sea being one of them.

During their six-month research/study at the

universities, the Fellows are supervised by eminent professors in the field of law of the sea, ocean affairs or related disciplines. The Fellowship is intended primarily to advance the proficiency and capability of mid-level government officials, academics and research fellows who are involved in the law of the sea or ocean affairs. Beneficiaries: So far 23 candidates from as many countries have received the fellowship. Previous fellows have come from nearly all regions of the world: Argentina, Barbados, Bulgaria, Cameroon, Cape Verde, Chile, Colombia, Indonesia, Iran, Kenya, Nepal, Nigeria, Papua New Guinea, Sao Tome and Principe, Samoa, Seychelles, Sri Lanka, Thailand,

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Capacity Building: A View from the UN

Tonga, Trinidad and Tobago, United Republic of Tanzania and Yugoslavia (Serbia and Montenegro). Recently, the candidate from the Republic of Palau has been awarded the twentieth Hamilton Shirley Amerasinghe Fellowship. The Fellowship programme continues to attract a wide range of high-calibre applicants. Train-Sea-Coast Programme (TSC): The TRAIN-SEA-COAST (TSC) programme administered by the Division and funded by the Global Environment Facility (GEF) through the United Nations Development Programme (UNDP) project GLO/98/G35. The current phase of this project is expected to come up for review by the end of 2006. TSC is a network of training centres or course development units (CDUs) located in developing and developed countries who agreed to use a common standardized course development

methodology.

This

methodology

called

“TRAIN-X”

constitutes the standard for training in other organizations and programmes of the United Nations system such as ITU, UNCTAD, ICAO, etc. The TSC centres have developed courses on transboundary issues such as marine pollution control, implementation of fisheries instruments in the South Pacific, the establishment and management of marine protected areas, etc. The thrust of the TSC programme has been on (a) building up permanent capabilities; (b) training targeted to the specific needs of countries; and (c) cost-effectiveness. Recent course deliveries under the TSC include improving wastewater management in coastal cities, in Bangladesh, Kenya, Maldives, Mozambique, Pakistan, Philippines, Sri Lanka, Turkey, and the United Republic of Tanzania as well as TSC/IMO courses on ballast water management delivered at the regional level in Cape Town, South Africa in March 2004 and at the national level in China in June 2004. Beneficiaries: These courses are part of the TSC network and can be shared and adapted among all members of the network, thus increasing

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cost effectiveness and reducing duplication in course development. The success of the TSC programme can be measured, not only in terms of the number of courses available in the network and the dynamism of its exchange programme, but also through the partnerships it has fostered with other UN entities. DOALOS/UNITAR Briefings: Since 2002, United Nations Institute for Training and Research, the Division, in conjunction with the United Nations Institute for Training and Research, have organised briefing on developments in ocean affairs and the law of the sea. These briefings focus on both overviews and key developments with regard to contemporary issues with a view to facilitate negotiations on the draft General Assembly resolutions related to the item “Oceans and the Law of the Sea” to be adopted later in the respective year. Beneficiaries: The responses of the approximately 50- 60 participants each year in the briefings are very positive and delegations indicate that such briefings are helpful in their negotiations of the General Assembly resolutions on oceans and the law of the sea. United Nations-Nippon Foundation Fellowship Programme: In April 2004, the United Nations and the Nippon Foundation of Japan concluded a technical cooperation agreement to provide capacity-building and human resource development opportunities to developing coastal States, both parties and non-parties to the Convention, through a ninemonth academic fellowship programme on maritime affairs. This programme is administered by the Division with certain support services provided by the Department of Economic and Social Affairs. Currently in its second year of implementation, the fellowship programme provides opportunities for advanced education and training in the field of ocean affairs and the law of the sea, and related disciplines including marine

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Capacity Building: A View from the UN

science, to government officials and other mid-level professionals from developing coastal States. The fellowship is implemented in partnership with some 30 prestigious academic institutions world-wide. Fellows undertake advance research and studies in two phases: The first, lasting six months, is undertaken at a participating academic host institution where the Fellows develop their research and study programmes under the guidance of a Faculty member recognized for his/her expertise in the Fellow’s chosen field. The second phase, lasting three months, is hosted by the Division and provides Fellows with an opportunity to experience first-hand the work of not only the Division, but also the wider ocean affairs and law of the sea constituency working through the United Nations in New York. Beneficiaries: Over the last two years, the Fellowship Programme has awarded 20 fellowships to individuals from as many States, 10 of which have completed the programme and the remaining 10 are currently in session. Detailed information, including the research outputs of Fellows who have completed the programme is available online through the Fellowship home-page: www.un.org/depts/los.nippon Training Programme and Training Manual on Delineation of the Outer Limits of the Continental Shelf: The delineation of outer limits of the legal continental shelf, as required under article 76 the Convention involves extremely technical and scientific information as well as methodologies. Recognizing the complex nature of this provision, the Commission on the Limits of the Continental Shelf began as early as in 1997 the development of Scientific and Technical Guidelines of the Commission, with a view to assist coastal States in preparing their submissions regarding the outer limits of their continental shelf. The Commission adopted the final text of the Guidelines (CLCS/11 and Add.1) in 1999. In May 2000, the Commission held an open meeting to bring to the attention of policy makers and legal

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advisers the benefits the coastal States might derive from implementing the provisions of article 76 and to explain to the experts in marine sciences involved in the preparation of submissions how the Commission considered that the Guidelines should be applied in practice. The Scientific and Technical Guidelines was a document of such importance to coastal States in preparing their submissions that, at the eleventh Meeting of States Parties in 2001, it was decided that the date of commencement of the 10-year time period stipulated in article 4 of Annex II to the Convention for making submissions to the Commission would be 13 May 1999 for those States for which the Convention had entered into force before that date (SPLOS/72). Although training per se is not one of the Commission’s functions, its members felt that it was important to assist coastal States, especially developing and least developed States, in preparing their submissions. In August-September 2000, the Commission finalized an outline for a five-day training course to assist States in preparing their submissions (CLCS/24 and Corr.1). In addition, the Division took the initiative of preparing a Training Manual with the assistance of two members of the Commission. This Manual is now available in English, French and Spanish languages. The training material consists of a trainer’s manual, including a set of slides accompanied by instructions for delivery of the modules, and a trainee’s manual that contains nine modules as well as a set of relevant exercises. The five-day training course was designed and validated through the application of a rigorous pedagogic methodology. The Division also began organising regional workshops to train technical staff of States with potential extended continental shelves, with a view to enhancing their knowledge and skills for the preparation of submissions to the Commission on the Limits of the Continental Shelf in conformity with the technical and scientific requirements of article 76 of the

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Capacity Building: A View from the UN

Convention as well as to assist them to develop an in-depth understanding of the procedure for the preparation of the submission. These workshops are truly multi-disciplinary in approach. Four regional workshops have already been organized The first workshop, for the Pacific island region was organized in Fiji, from 28 February to 4 March 2005 in collaboration with the South Pacific Applied Geoscience Commission (SOPAC), the Commonwealth Secretariat and the Government of Fiji, and with the sponsorship of the Governments of Australia and Norway. The course was offered in English and was attended by technical personnel of the following developing countries: Fiji, Indonesia, Malaysia, Micronesia, Palau, Papua New Guinea, Philippines, Solomon Islands, Tonga, Vanuatu, and Viet Nam. The second regional workshop took place in Sri Lanka from 16-20 May 2005. It was organized for Indian Ocean developing countries in collaboration with the Government of Sri Lanka and the Commonwealth Secretariat. The course was offered in English and the following States were represented: Bangladesh, India, Kenya, Madagascar, Mauritius, Mozambique, Myanmar, Pakistan, Seychelles, South Africa, Sri Lanka, and United Republic of Tanzania. The third workshop was held in Ghana 5-9 December 2005 in collaboration with the Government of Ghana, the Commonwealth Secretariat, and with the support of the African Union and the Economic Community of West African States (ECOWAS) for African States with a potential extended continental shelf in the Atlantic Ocean. The course materials were made available in English and French, and the course was also delivered in both languages. The following States were represented: Angola, Benin, Cape Verde, Cote d’Ivoire, Democratic Republic of Congo,

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Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Namibia, Nigeria, Sao Tome and Principe, Senegal, Sierra Leone, and Togo. The fourth regional workshop was held in Argentina from 8-12 May 2006 for the Latin American and Caribbean Region. The course materials were available in both Spanish and English, and delivered in both languages. The following States were represented: Argentina, Bahamas, Barbados, Chile, Costa Rica, Cuba, Guyana, Mexico, Suriname, Trinidad and Tobago, and Uruguay Beneficiaries:

It

is

noteworthy

that

159

technical

and

administrative staff from 49 developing countries have so far benefited from these workshops.

Trust Funds In addition to the fellowship and training programmes, several developing countries have benefited from the following trust funds administered by the Division. These are: x

Trust fund to assist members of the Commission on the Limits of the Continental Shelf from developing States to participate in the meetings of the Commission;

x

Trust fund for the purpose of facilitating the preparation of submissions to the Commission on the Limits of the Continental Shelf for developing States, in particular the least developed countries and small island developing States, and compliance with article 76 of the United Nations Convention on the Law of the Sea;

x

Trust fund to assist States in their settlement of disputes through ITLOS;

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Capacity Building: A View from the UN

x

Trust fund for assistance to States participating in the Conference on Maritime Delimitation in the Caribbean;

x

Voluntary trust fund for the purpose of assisting developing countries, in particular least developed countries, small island developing States and landlocked developing States, in attending meetings of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea;

x

The trust fund established by the General Assembly to assist developing States to attend the meetings of the Consultative Process; and

x

Assistance fund under Part VII of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.

IV.

Capacity Building Policy and Future Activities

In tune with the changing nature of support and assistance required by developing States, in the implementation of the provisions of the Convention, the Division has begun a proactive approach on emerging issues rather than provide technical assistance upon request by States. This is particularly important in the context of rapidly increasing technological advances and available scientific and technical information. New discoveries and new uses of the oceans which could not be foreseen at the time of the drafting of the Convention have to be harmonised within its overall framework.

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At the time of the negotiations of the Convention the knowledge and information available on the seabed and ocean floor was much less developed than today. As a consequence, the drafters of the Convention did not anticipate the technical complexities involved in the application of some of its provisions, and in particular of the provisions of Part VI and Annex II to the Convention. The global understanding of continental margins has advanced considerably in the last three decades and major technological and scientific advances are being utilized by coastal States in preparing their submissions under Article 76. Today exploration of seabed resources, including those in the deep sea area is taking place with increased momentum. The International Seabed Authority has already signed seven contracts for exploration of polymetallic nodules and the eighth is under way. New discoveries and advanced technology has shown that the resources of the seabed and subsoil, both within and beyond national jurisdictions are far more and varied than that was contemplated at the time of the adoption of the Convention in 1982 when polymetallic nodules were considered to be the most significant seabed resource. Recent developments have shown that there are other potential resources such as polymetallic sulphides and cobalt-rich ferromanganese crusts which occur in seamounts and hydrothermal vents, in extremely fragile environments. Resources such as methane hydrates occur in continental margins and Polar Regions and are considered an immense source of natural gas. These are also areas rich in unique biological species hitherto unknown which thrive under extreme conditions and in total darkness. Commercial interests for genetic material from the oceans and seabed have emerged. As a result, the Division envisages new capacity-building programmes and activities which respond both to emerging trends in ocean

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Capacity Building: A View from the UN

affairs and the law of the sea and to the needs of developing States in the further implementation of the Convention. As a first step, a dedicated Capacity Building Coordinator has been designated in the Division whose tasks, firstly, include coordination of the work of all other staff involved in capacity building activities, and secondly, include functioning as the focal point vis à vis States and other institutions involved with capacity building. Immediate new programmes that are envisaged are as follows:

1. Implementation of deposit and due publicity obligations under UNCLOS with regards to the delineation of outer limits of maritime zones and lines of delimitation (articles 16, 47, 75, 76(9) and 84) The Convention contains several provisions relating to the establishment of baselines and the outer limits of maritime zones and the related deposit with the Secretary-General of the United Nations of charts and geographical coordinates. The deposit of charts and geographical coordinates and the ensuing due publicity are of great importance as they ensure that the exact location of maritime boundaries is known by all States and seafarers, a condition necessary for the correct implementation of the substantive provisions of the Convention. It also brings precision to the outer limits of the national and international jurisdictions, which is critical to peace and security. The technical aspects of such a deposit, however, pose technical and practical challenges for all States, especially developing States, which may not have a hydrographic office. It has been assessed that there is a clear and urgent need for capacity-building programmes and activities to assist developing States that require an improved understanding of articles 16, 47, 75, 76(9) and 84 of the Convention as well as the knowledge and skills necessary to implement them.

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2. Advanced courses on the preparation of a submission to the Commission on the Limits of the Continental Shelf on the outer limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured Following the successful organization and delivery of several regional training courses on the preparation of a submission to the Commission on the Limits of the Continental Shelf on the outer limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, the Division intends to develop and organize follow-up training courses to provide more practical guidance to States which are at an advanced stage of the preparation of their submissions to the Commission. Such training courses would address specific aspects of the process, including project management data requirements or the peculiarities of the continental shelf configuration in specific areas. The training courses would be organized both at the regional and sub-regional levels, but they may be also tailored to specific States. The courses would be open both to States that have already participated in the earlier training courses as well as to other States.

3. Conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction Over the last three decades, Member States have increasingly addressed the challenge of conserving the biological biodiversity of terrestrial and near-shore ecosystems, and have recently turned their attention to the conservation of marine biological diversity in areas beyond national jurisdiction. Consequently, the General Assembly requested in 2004 the Secretary-General prepare a substantive report on the question and establish an Ad Hoc Open-ended Working Group (Working Group) “to

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Capacity Building: A View from the UN

study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction” (A/59/24). It has been assessed that there is a clear and urgent need for capacity-building programmes and activities in order to assist developing States to gain the necessary understanding of all relevant issues dealing with biodiversity beyond areas of national jurisdiction. The Division with the assistance of other leading organizations in the field, intends to focus its capacitybuilding efforts on such topics as scientific information on ecosystems and biological resources found in areas beyond national jurisdiction; economic and socio-economic values of such ecosystems and resources, including direct values (e.g., source of food, pharmaceuticals, and other products) and indirect values (ecosystem health); technologies associated with the research and possible uses of such ecosystems and resources; environmental issues, including on-going and new activities that need to be managed in order to ensure sustainability; and the legal framework for the conservation and management of biodiversity beyond national jurisdiction, both under UNCLOS and other relevant instruments.

4. Maritime Security The Convention and other legal instruments provide important measures, including enforcement measures, which States can take to prevent or deal with threats to maritime security. The need to prevent and suppress a broad range of threats to maritime security and the obligation to implement and enforce the range of applicable legal instruments in an integrated manner is a complex task for most States, in particular for developing States. It has been assessed that there is a clear and urgent need for capacity-building programmes and activities to provide Member States with a clear understanding of the applicable international legal regimes. In

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this connection, it is proposed that initial capacity-building efforts focus on terrorist acts against ships and offshore installations; trafficking in weapons of mass destruction; piracy and armed robbery at sea; transnational organized crimes at sea, in particular illicit traffic in narcotic drugs and psychotropic substances and smuggling of people; major threats to resource security, in particular illegal, unregulated and unreported fishing; and major threats to environmental security, in particular pollution incidents.

5. Assistance to States in the development and implementation of their national ocean policy, including the Ecosystems Approach In response to Member States’ requests, and in a manner consistent with its mandate, the Division will assist States in the development and implementation of their national oceans policies. Such assistance will include capacity-building programmes on relevant aspects of the Convention and related instruments, which are normally considered in the development of national oceans policies. The Division will also assist Member States in the elaboration and implementation of new approaches, such as the Ecosystem Approach, by devising tailor-made capacity-building programmes in cooperation with Member States, international and regional organizations, academia and civil society. The “ecosystem approach” by and large refers to a comprehensive, science-based approach to the conservation and management of natural resources and involves technical intricacies. The development of these new programmes will benefit from the experience gained and the lessons learned during the conduct of the existing capacity-building activities. As a consequence, depending on the subject matter these programmes will address, as well as the specific needs of the States to which they will be targeted, the programmes and activities will

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Capacity Building: A View from the UN

rely on different tools ranging from practical training to the development of reference materials or the provision of ad hoc assistance. The methodologies will combine the workshop/training manual practice as well as the Nippon Fellowship methods as necessary.

401

Capacity Building for Integrated Ocean Management: A Chinese Perspective Guifang (Julia) Xue 1 Abstract Based on the definitions of integrated ocean management and capacity building, the paper discusses China’s capacity building for IOM. The paper starts with an introduction to the evolution of international prescriptions on IOM and capacity building, followed by a description of China’s social and natural context for ocean management. The overall organisational performance and functioning capabilities of the Chinese government for ocean management will be illustrated through three selected areas. These are national experiences in institution building, the formation of its legal and policy framework, and participation in international cooperation. Major challenges facing China’s capacity building for IOM are pointed out including legislative incompetence, institutional defects, and implementation inadequacy. The paper concludes with suggestions for China to integrate its management organizations, promote sound participatory process, improve global involvement for better international support, adopt new management approaches, and enhance human resource development and personnel training. Keywords: integrated ocean management, capacity building, China, institutional organisation, legal framework, international cooperation

1

The author is the Director and Professor of the Institute for the Law of the Sea, Ocean University of China, Qingdao, China. Contacts: Tel: 0086-532-82032330; fax: 0086-53282032841. Email: [email protected]. The views expressed in this paper are solely those of the author and are not necessarily those of the Chinese government. The author’s PowerPoint presentation and a brief video showing aerial footage of Qingdao can be viewed on the accompanying CD.

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Guifang (Julia) Xue

Evolution of International Prescriptions

“Integrated ocean management” (IOM) is a decision making process that takes diverse types of information (such as social, economic, technical, and environmental) into consideration to determine balanced decisions between marine resources development and environmental protection. IOM considers

implications

and

consequences

of

decisions

on

ocean

development to achieve sustainable development of marine resources and environment. Along with the progress of gaining international attention, IOM has been associated more and more often with capacity building. The term “capacity building” has been used in many contexts with a variety of definitions. However, over the last few years, a commonly agreed definition is “the actions to enhance the ability of individuals, institutions, and systems to make and implement decisions and perform functions in an effective, efficient, and sustainable manner”. 2 In this sense, capacity building is also referred as “soft capacity” in this paper. Along with the development of marine science and technology, the management of marine resources and protection of the marine environment has attracted more and more attention and become a major topic in the international community. On 10 December 1982, the UN Convention on the Law of the Sea (LOSC) was opened for signature. 3 As the first comprehensive legal framework governing ocean activities and marine

2

A Guide for Self-assessment of Country Capacity Needs for Global Environmental Management, Prepared by the GEF Secretariat with the assistance of UNITAR in collaboration with UNDP, UNEP, the World Bank, FAO, UNIDO, the Secretariats of CBD, CCD and UNFCCC, Washington, DC, September 2001. 3 The LOSC entered into force on 16 November 1994 and as of 31 March 2006, it has 149 Parties. See http://www.un.org/Depts/los/index.htm.

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affairs and the “Constitution of the Oceans”, the LOSC signalled a new era of the ocean management. The LOSC acknowledges the needs of developing States for capacity building and technical assistance in areas such as marine scientific research, the transfer of technology, and the protection and preservation of the marine environment. In the face of the worsening and depressing ocean management, capacity building has become a priority theme for discussion at global conferences. The UN General Assembly (UNGA) has constantly called on all countries to establish marine administrative institutions and the related ocean management systems. 4 The need for capacity building has also been emphasised in the United Nations (UN) resolutions on oceans and the law of the sea. Concerns over the depletion of marine resources and deterioration of the marine environment reached in the UN Conference on Environment and Development (UNCED) of 1992. As an important outcome of the UNCED, Agenda 21 confirms that ocean management is an important way of achieving sustainable development. 5 Chapter 17 of Agenda 21 identifies the importance of the marine environment as “an essential component of the global life-support system and a positive asset

4

The 45th Session of the UNGA in 1990 adopted a resolution urging coastal states to take the ocean management as national development strategy. The 47th Session in 1992 made an appeal for incorporating ocean management and administration into national management systems. See http://www.un.org/Depts/los/index.htm. 5 Agenda 21 was one of the significant outcomes of the UNCED. There were 178 governments attending the conference, held at Rio de Janeiro, Brazil, 3-15 June 1992. Chapter 17 of Agenda 21, also called “the Oceans Chapter”, deals specifically with the sustainable use and conservation of marine living resources of the high seas, as well as those under national jurisdiction. Agenda 21 calls upon states to take effective action consistent with international law to conserve marine living resources. The full texts of both documents are available from: http://www.oceanlaw.net/texts/index.htm.

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Guifang (Julia) Xue

that presents opportunities for sustainable development.” 6 Chapter 37 of Agenda 21 gives particular focus to national mechanisms and international cooperation for capacity building in developing countries. It calls on governments to adopt national strategies for sustainable development. Capacity building is also one of the main themes of the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea and a key means of implementation in the Johannesburg Plan of Implementation (JPOI). 7 The JPOI called for accelerating capacity building initiatives and to assist developing countries in building capacity to access to a larger share of multilateral and global research and development programmes. Against the concepts defined and background outlined above, the paper attempts to present a portrait of China’s capacity building for IOM, analyzes the challenges it is facing, and points out suggestions for the future. The objectives of so doing are threefold. First, the examination of China’s experiences with capacity building is to lay down the foundation for understanding the progress made and challenges encountered in China’s ocean management practice. It will be shown that the term “capacity building” is only recent to China and its IOM is still a long way from being achieved. Second, the analysis of the major challenges facing China reflects the global situation. Being a small part of a larger picture, the development of China’s marine economy and the problems it has encountered underscore similarities with the factors that contribute to global ocean management problems. China’s actions mirror the overall effort of the international

6

See Agenda 21, Para.17.1. See Plan of Implementation of the World Summit on Sustainable Development. The text is available from: http://www.un.org/esa/sustdev/documents/WSSD_POI_PDEnglish/WSSD_planImpl.pdf. 7

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Capacity Building for Integrated Ocean Management

community in searching for a solution to address the ocean management issues. Finally, suggestions made for China to improve its capabilities for ocean management may also provide some input for the international community to allocate its strength in supporting capacity building actions.

The Social and Natural Context of China’s Ocean Management

China is situated in the eastern Asian continent with a land territory of 9.6 million square kilometres and a population of 1.3 billion. 8 From north to south, China borders an internal sea, the Bohai Sea, and three semi-enclosed seas, the Yellow Sea, the East China Sea, and the South China Sea. 9 China has a coastline of more than 18,000 kilometres and an island coastline of over 14,000 kilometres. 10 These coastlines, together with numerous bays and gulfs, provide China with favourable natural conditions to develop marine industries. As a developing country, China faces an enormous task to feed more than one fifth of the world’s population on 7% of the world’s arable land. 11 China's overriding national policies call for economic expansion to meet the basic and growing needs of its huge population. In the last two decades, China has experienced tremendous economic growth, but limited terrestrial

8 For a general introduction to China, see http://english.peopledaily.com.cn/china/home.html. 9 S. Xia, C. Zhao, and S. Feng, China Fishery Divisions: A Survey and Division on China's Fishery Resources (in Chinese), vol. 1 (Hangzhou: Zhengjiang Science and Technology Publisher, 1987), p.6 and 23. 10 See J. Song, "Great potential for the exploitation of China's islands," Ocean Development and Management (in Chinese), 3 (1996), p.5. 11 China is a country characterized by a shortage of arable land. China has only 13% of arable land, which has been disappearing in recent years due to economic development and industrialization. See China Agenda 21 (1992) Para. 14.38.

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Guifang (Julia) Xue

resources hinder its further development. With a soaring increase in population and gradual reduction of land resources, China has turned to the ocean to ease the pressure on insufficient land-based resources. China’s twelve coastal provinces and municipalities cover an area of 1.3 million square kilometres, which accounts for 14% of the country’s land mass in total, but they support 44.7% of its population, and generate 60% of the nation’s gross domestic product (GDP). 12 In the early 1990s, China embarked on a “Blue Revolution” to develop a “Blue Economy” which has made China’s marine economy a new growth area of its national economy. 13 By 1996, the gross industrial and agricultural output of coastal cities and counties accounted for approximately 60% of national gross output value, which has grown from 6 billion yuan (RMB) in 1978 to 400 billion yuan (RMB) at the end of 2001, with its growth rate far higher than that of GDP in China. 14 The surge in economic growth has improved the national economy and the overall life quality of the Chinese people. However, China’s economy has come at the high cost of its natural resources and environment. China’s ecological health and wealth of natural resources have experienced tremendous strain and depletion. 15 China faces myriad environmental

12

See China Facts & Figures: http://www.10thnpc.org.cn/English/shuzi-en/enshuzigq/htm/s.htm. 13 “Blue Economy” refers to the development of marine-related industries. See Tang Min, ‘Blueprint released for raising blue economy’, http://www1.chinadaily.com.cn/bw/2001-821/28126.html. 14 Information on China is based on China's submission to the 5th Session of the United Nations Commission on Sustainable Development, April 1997, available from: http:\\www.sepaeic/gov.cn 15 One coastal consequence of economic expansion has been extensive land and sea reclamation. From 1950 through 1985, China reclaimed more than a third of its national tidal areas, or 7.26 million acres (2.94 million hectares), for salt-making fields, agriculture, port development and industrial uses. Mangrove areas were reduced from 120,000 acres (48,583

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Capacity Building for Integrated Ocean Management

problems resulting from a lack of long term planning and insufficient management of natural resources and ecosystems. Upon recognising the deficiencies of pursuing economic development without proper management of its natural resources and environment, the Chinese government has made efforts to protect marine ecosystems and environment over the past two decades. Governmental policies reflect the growing understanding of the need to promote economic development that is socially, economically, and ecologically sustainable. These efforts have substantially improved China’s capabilities for the IOM, and they warrant more detailed discussion.

Key Areas of China’s Capacity Building

Although China started its marine industry fairly early and has relied on marine resources, its ocean management in a real sense began rather late, and the concept of capacity building for IOM has not become an established practice. The signing of the LOSC triggered the need for China to reconsider its ocean management policy with a long-term perspective. 16 Since the 1990s, especially subsequent to the UNCED in 1992, in response to the requirement initiated by the UN that coastal States carry out sustainable development to the seas under their jurisdiction, the Chinese government has made efforts to enhance its overall ocean management capacity. Such national efforts have led to a variety of institutional

ha) to less than 50,000 acres (20,243 ha). In Jiangsu province, between 1949-1999, over 1,364 square miles (2,200 square km) of saltmarsh wetland was reclaimed. 16

China Agenda 21 is a formal declaration of China’s sustainable development strategy.

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Guifang (Julia) Xue

initiatives over the past two decades. In examining some of these areas, particular attention will be given to the national experiences in institution building, formation of legal and policy framework, and participation in international cooperation.

National Experiences in Institution Building In China, the seas and oceans are state-owned resources that are subject to unified management by the central government. But the vast ocean space and the large variety of different scales of sea area as well as the needs of the local governments bordering the sea make it difficult for the central government alone to manage the seas and oceans. Thus the regulation and enforcement of marine laws have been allocated to different ministries and agencies. They include the State Oceanic Administration (SOA) under the Ministry of Land and Natural Resources, the State Fisheries Management Bureau under the Ministry of Agriculture, State Environmental

Protection

Administration

(SEPA),

Ministry

of

Transportation, the People's Liberation Army (Navy), Maritime Police Force under the Ministry of Public Security, the Ministry of Science and Technology, as well as associated provincial and local government bureaus. The State Council may also authorize the local governments to take charge of the supervision and management of the seas adjacent to their administrative regions. While carrying out the construction of an institutional system, China has conducted a number of important works closely related to the capacity building for IOM. Since early 1980s, the Chinese government undertook a series of comprehensive national resource assessments in the coastal waters. These include a comprehensive national survey on coastal zone and tidalflat resources from 1979 to 1986; national survey on island resources from

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Capacity Building for Integrated Ocean Management

1989 to 1997; formulation of development plans for China’s seas as well as the appropriate supporting land areas from 1990 to 1994; and national surveys on marine pollution baselines from 1997 to 1999. These assessments and surveys became a foundation in developing institutional organizations and legal framework. Among China’s ocean management organisations, SOA is China’s first national institute for ocean management which has been made under the State Council to engage specially in marine affairs and ocean development. Its establishment dates back to 1964 when fundamental work needed to be conducted regarding the basic requirement arising from marine resource development and scientific research. However, the status of marine resources and environment was worsening due to population pressures, limited fiscal resources, pollution, and economic incentives. When calls for integrated ocean management were getting urgent, the Chinese government was conscious of the limitations of traditional institutional arrangements and of the need to build an organizational structure that would address in a more effective manner the tasks involved in ocean management. China started the institutional building from strengthening the function of national management agencies. Three major forces have driven such an effort: first, the need to formulate and implement comprehensive ocean policies; second, the experience acquired through the emergence of sea area management programmes; and third, the challenge of integrating marine functional zoning under a single policy and governance system. Through wide investigation and consultation, on the recommendation of the State Council, plus management experience drawn from the past

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Guifang (Julia) Xue

years, China reformed the original functions and duties of the SOA and set up three major systems for ocean management. 17 These systems consist of the SOA (governmental departments of the coastal provinces, municipalities and autonomous regions, bureaus of counties and cities); the lawenforcement system (National Headquarters of Sea Surveillance, Sea Surveillance Headquarters of sea areas and coastal provinces, municipalities and autonomous regions, Sea Surveillance detachments and brigades of coastal cities and counties) and the supporting system of public security services such as marine survey, monitoring, scientific research, forecast, information and metrology. As such, SOA is responsible for the supervision and management of the marine environment and organization of investigations, monitoring, evaluation, and scientific research of the marine environment and has become the leading agency responsible for China's marine law and policy making and the overall management of marine affairs. In 1985, Jiangsu province was the first province to establish a provincial coastal marine resource management authority. By 1996, twelve provinces had established such authorities. The SOA is required to function in conjunction with other concerned agencies as a focal point to promote institutional capabilities in areas where significant work is lacking. Thus, it expanded its brief to include all aspects of ocean development including the protection of the marine environment. Ocean management in a broad sense covers matters involving, to a certain degree, many ministries and agencies of the government, so some kind of coordinating system is inevitable. China’s ocean management is a mix of central government and local government responsibility. With

17

China Oceanic Information Network, see http:\\www.coi.gov.cn/eindex.html.

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Capacity Building for Integrated Ocean Management

administrative coordination separated according to relevant provisions of the national Marine Environmental Protection Law and its implementation regulations,

the

central

and

local

governments

divide

up

their

responsibilities into zones and sectors, and carry out management functions in cooperation with each other. The divided management system conforms to the situation in China and brings into full play both the central and local governments in ocean management. This institutional system can basically meet the needs in accomplishing the tasks of China’s ocean management. Nevertheless, criticism has arisen for the disadvantages in lack of integration. It is necessary for China to improve the efficiency of this system and enhance the enforcement capacities.

Formation of Legal and Policy Frameworks Being a high-level management, IOM involves capacity building not only for efficient institutional organizations, but also for an effective legal framework. The overall management objectives need to be achieved by means of development strategy, policy planning, functional zoning, legislation, enforcement, as well as administrative supervision and so on. China proclaimed its EEZ upon the ratification of the LOSC in 1996, and it is crucial for China to develop its marine economy in accordance with its requirements. China needs to harmonize its marine legislation with the provisions of the LOSC. After careful deliberation, the Chinese government issued laws to guide its ocean management. These include the Law of the PRC on the Territorial Sea and the Contiguous Zone enacted in 1992 (1992 TS/CZ Law) and the Law of the PRC on the Exclusive Economic Zone and

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Guifang (Julia) Xue

the Continental Shelf in 1998 (1998 EEZ/CS Law). 18 These fundamental laws also have important implications for capacity building, as they provide legal frameworks to manage China’s marine resources according to the requirements of the LOSC. China also revised its important marine laws to overcome the management constraints and to change the status of the seriously depleting resources and the deteriorating environment. These laws constitute key parts of capacity building for China’s IOM framework. Three of which command particular attention: the Law of PRC on Marine Environment Protection Law (MEPL), Law of PRC on the Use of Sea Areas (Sea Areas Law), and the Law of PRC on Fisheries (Fisheries Law). 19 In comparison with other marine laws and regulations, the laws and regulations of China concerning marine environmental protection are more complete and systematic. The principal law in this field is the Marine Environment Protection Law (MEPL). 20 The principal objectives of the MEPL are to protect the marine environment, conserve marine resources, maintain ecological balance, and promote sustainable ocean development. As China’s first national law on marine environmental protection, the MEPL provides detailed regulations and scientific standards on marine

18 The 1992 TS/CZ Law was adopted by the Standing Committee of NPC in 1992. For the Chinese and English Version, see SOA, Collection of the Sea Laws and Regulations, pp. 4-6; pp.201-215. The 1998 EEZ/CS Law was approved by the same legislative authority in 1998. For the Chinese and English versions, see SOA, Collection of the Sea Laws and Regulations, pp. 11-14; pp. 210-215. 19 China employed the relevant provisions of the LOSC to define its EEZ and sovereign rights. See Articles 2 of the 1998 EEZ/CS Law and Articles 55 and 57 of the LOSC. 20 The MEPL was adopted in 1982, amended in 1999, and the amended version was put into effect on 1 April 2000. For Chinese and English versions, see SOA, Collection of the Sea Laws and Regulations, pp.15-24; pp. 216-250.

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Capacity Building for Integrated Ocean Management

environmental quality and conservation of marine resources. 21 It proposes the establishment of marine nature reserves to protect high-value marine resources and the ecosystem, and it also outlines a coordinated system between various governmental agencies to control marine environmental pollution including SOA, FMB, and SEPA. 22 The Law of PRC on the Use of Sea Areas (Sea Areas Law) was adopted in October 2001 and was put into effect in January 2002. 23 As its name indicates, it is to enhance the proper usage of the seas and oceans under China’s jurisdiction. The Sea Areas Law promotes the rational utilisation of China’s seas by bringing them under one umbrella with an integrated management approach. With 54 articles in eight chapters, it seeks to use property rights and a quasi-exclusive ownership approach to manage the principal sea uses and resources in China’s internal waters and territorial seas. 24 Its framework classifies sea uses by granting licences according to their functions. Users of the seas need to apply to a central registry for a licence to get the registered right of sea use. Thus an integrated administrative framework on sea zone planning and a fundamental and powerful legal system for ocean management is set up. The promulgation of this law represents a major step by the Chinese government to enhance ocean management. It is also a concrete action in fulfilling the requirement

21

For a summary, see China, The Development of China's Marine Programs, p. 10. Chapter 3 of the MEPL deals specifically with marine ecological conservation. The implementation of the MEPL is shared by government agencies including the SOA and the National Environment Protection Agency (NEPA). The authority responsible for pollution protection underwent a gradual shift from SOA to NEPA. There are concerns about the competency of this administrative NEPA setting. See K. Zou, "Implementing marine environmental protection law in China: progress, problems and prospects," Marine Policy 23, No. 3 (1999), p.218. 23 Law of PRC on the Use of Sea Areas, (Beijing: China Ocean Press, 2001). 24 Ibid., Article 2. 22

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Guifang (Julia) Xue

of the LOSC and the UNCED to undertake integrated management and sustainable development of the sea areas under their jurisdiction. Being a milestone in the new century in promoting the sustainable development, it has far-reaching influence on China’s capacity building for IOM. The most significant outcome of the Sea Areas Law is the establishment of a sea functional zoning system, which constitutes the scientific basis for the management of sea zones. At present, China has carried out the large-scale marine functional zoning work in its coastal cities and counties. 25 The marine functional zoning system includes a licensing system for ocean waste dumping with 38 waste dumping sites. The Sea Areas Law and its marine functional zoning system are the major indicative works of China’s IOM and great contributions to the sustainable development of the world’s oceans. China’s first national law concerning fisheries was brought into being on 1 July 1986 to enhance the protection, proliferation, exploitation, and rational utilisation of fishery resources. 26 As a consequence of this law and its implementation regulations, a series of regulations, measures, rules, and technical standards governing different aspects of fisheries incorporating

25

In 1988, the State Council called for the designation and management of marine reserves and the SOA was made responsible for designating and managing marine reserves. China's first marine reserves were established in the early 1990s. Since then, at least 25 coastal and marine nature reserves have been set up, covering a total area of more than 1.58 million acres (650,000 hectares). Special marine reserves have been set to protect typical ocean ecosystems and endangered species. Several of these reserves have international linkages with UNESCO World Heritage Site and other similar sites in the world. See The

Development of China's Marine Programs, Information Office of the State Council of the PRC, Beijing, 1998. 26

The 1986 Fisheries Law was amended in accordance with the Decision on the Amendment of the Fisheries Law of the PRC adopted at the 18th Meetings of the Standing Committee of the NPC on 31 October 2000. The Decision consists of 25 amendments to the 1986 Fisheries Law.

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Capacity Building for Integrated Ocean Management

international requirements were brought into being. 27 They encompass fisheries administration, resource conservation, aquaculture enhancement, post-harvest

processing,

fishing

vessel

control,

fish

trade,

and

environmental protection. In order to adapt to the changes and implement international requirements, China substantially amended its 1986 Fisheries Law in 2000. The amended version of the national fisheries law came into effect on 1 December 2000 (Amended Fisheries Law). The concept of resources conservation started to take a more prominent position. The amendment of Fisheries Law is a new milestone for China’s fisheries law enforcement. Its implementation law is currently in the progress of revising. However, enforcement of fisheries laws, especially reducing fishing effort seems to be essentially difficult. Besides adopting national marine laws, China has also issued a number of important documents setting up the framework for ocean management. Among which, China Ocean Agenda 21 and the ocean policy White Paper merit a discussion. China's marine policies are most comprehensively outlined in China Ocean Agenda 21 adopted in 1996 as the specification of China Agenda 21 in the ocean arena. 28 China Ocean Agenda 21 put forward a sustainable development strategy for China's marine programs. The basic ideas of this strategy are: to effectively safeguard the state's marine rights and interests, rationally develop and utilize marine resources, protect the marine environment and achieve the sustainable utilization of marine resources and

27 For a summary, see Z. Liu, "How to establish and improve the fisheries legal system of China," China Fisheries Economic Studies (in Chinese), 4 (1999), p. 18. 28 SOA, China Ocean Agenda 21 (Beijing: China Ocean Press, 1996); China Agenda 21, available from: http:\\www.acca21.edu.cn/indexe6.html

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Guifang (Julia) Xue

environment. Being a commitment to make China's development sustainable, it involves all levels of ministries and stakeholders in the development process and aims to develop the marine economy while enhancing the role of a healthy marine environment. It is also a guideline for the exploration of marine resources and protection of the marine environment so as to achieve sustainable development. In May 1998, China promulgated an ocean policy White Paper, the Development of China's Marine Programs, for the first time since 1949. It includes a Long-Term Plan and Five-Year Plan. The Long-Term Plan commits the government to strengthen marine resource research, develop marine industries and protect the marine environment. 29 For the medium and long-term development of oceanographic science and technology, China issued the Oceanographic Technology Policy (Blue Paper) to provide a boost to oceanographic and marine technology. These laws and policy initiatives provide principles and detailed guidelines to address ongoing ocean issues. Under the guidance of these laws and regulations, capacity building for IOM in China has made noticeable progress in recent years. Policies and objectives appear more realistic, concentrating more on management and less on development, and making the best social use of resources. There has been a growing acknowledgement of the necessity to protect the marine environment

29 Other key points are: overall planning for marine development and management; safeguarding the country’s rights and interests granted by international instruments; rationally utilizing marine resources and promoting the coordinated development of marine industries; planning and implementing simultaneously the development of marine resources and the protection of the marine environment; implementing the strategy of ocean development through an emphasis on science and education; establishing a comprehensive marine management system; and actively participating in international cooperation in the area of ocean development.

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Capacity Building for Integrated Ocean Management

through measures like the establishment of marine reserves. Explicit recognition of ocean management and consideration of longer-term utilisation of resources are increasingly reflected in decision making. Ocean management regimes are taking a more strict and cooperative approach. Law enforcement and supervision has been directed towards a standardized behaviour and the capacity for long-term environmental monitoring and managing has improved.

Participation in International Cooperation As one of the largest countries with the greatest population in the world, China has taken steps to participate in various forms of cooperation, and is playing a more and more active role in international affairs. 30 Internationally, China has endorsed the Agenda 21, the Biodiversity Convention,

and

other

international

conventions

relevant

to

the

development of IOM practices and norms. China signed the LOSC on 10 December 1982, the very day it was opened for signature, together with 117 other states. 31 On 15 May 1996, China ratified the LOSC by the Standing Committee of the NPC. China’s ratification of the LOSC has brought about strong impact on China’s maritime legislation and practice, China had to commit to its LOSC obligations. It provides China with an opportunity to

30

See D. Chen, The Contemporary International Law of the Sea (in Chinese) (Beijing: China Social Sciences Press, 1988), pp. 464-466. After its return to the United Nations in late 1971, China joined in the work of the United Nations Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction (the Seabed Committee) and later participated in all the negotiations at the third United Nations Conference on the Law of the Sea (UNCLOS III) in the early 1970s. PR China made, for the first time, a contribution to the creation of a new international convention—the United Nations Convention on the Law of the Sea (LOS Convention). 31 See K. Zou, "Chinese approaches to international law," in China's International Relations in the 21st Century: Dynamics of Paradigm Shifts, ed. W. Hu, G. Chan, and D. Zha (Lanham: University Press of America, 2001), p. 182.

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Guifang (Julia) Xue

consolidate its links with the world, and a vital opportunity to develop its “Blue Economy”. 32 This enabled it to take part in world marine affairs, and more importantly, to pursue a sustainable development strategy consistent with international standards. 33 Some achievements have emerged as a result of international assistance projects. In 1994, working with the GEF, UNDP and IMO, the SOA of China and the Xiamen Municipal Government jointly organized the Xiamen Demonstration Plan for the Marine Pollution Prevention and Management in the East Asia Seas. The aim of this plan is to promote the IOM in Xiamen City and provide experiences for the East Asian countries and other coastal regions. Through implementation of the plan during 19941998, improvement in the following areas is obvious: 1)

Major problems

regarding

marine

pollution

and

coastal

management were systematically analysed; 2)

Laws and regulations for IOM were formulated;

3)

Capacity for using the ocean management system to prevent and

mitigate marine pollution and protect the endangered species and scenic spots was developed; 4) The action plan for environmental protection and the contingency plan for emergencies were worked out and put into operation; 5)

Marine environmental monitoring surveillance and assessment

system was further improved;

32 E. Zhao, "To speed up the progress of China's marine legislation," Ocean Development and Management (in Chinese) 13, No. 3 (1996); R. Wolfrum, "The legal order for the seas and oceans," in Entry into Force of the LOSC (1994 Rhodes Papers), ed. M. H. Nordquist and J. N. Moore (1995), p. 162. 33 See "Better manage and utilise the ocean to benefit the future generations," Ocean Development and Management (in Chinese), No. 3 (1996), p. 1.

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Capacity Building for Integrated Ocean Management

6) The awareness of the public about the ocean and marine environmental protection was greatly enhanced; and 7)

Mechanisms for training and education to promote the

development of human resources and talents were developed.

In 1995, in cooperation with UNDP, China began to implement the project “Capacity Building for Integrated Coastal Management in Northern South China Sea”. The project established a management mechanism to enhance the capacity of the local governments and the public in carrying out ocean management by implementing specific strategies for ocean management. It provided local governments in China with well-trained personnel,

necessary

equipment,

legal

frameworks

and

financial

mechanisms to carry out strategic management plans. The promotion of the project has basically structured the framework of IOM and the basic capacity for further development. In July, 2000, the SOA of China and the Regional Program Office for Building Environmental Management Partnership for Seas of East Asia, and IMO signed a memorandum of understanding on the Bohai Sea Environmental Management Project as a model for the management of pollution across administrative boundaries. To expand international cooperation, China has participated in international conferences and negotiations for global instruments. These activities improved China’s position in these forums, and provided invaluable experience for China’s policy-making and management competence. Through international aid and participation of the relevant international organizations, capacity building for ocean management with different characteristics has been carried out in China.

421

Guifang (Julia) Xue

Major Challenges Related to China’s Capacity Building

China has carried out a great deal of work to build its capacity for IOM, and has established a basic regulatory framework and institutional mechanisms for addressing the interrelated environmental, social and economic problems of its population. However, a sound managerial system for IOM has yet come into being in China due to some major challenges outlined below.

Legislative Incompetence China’s marine legislation lacks a comprehensive management doctrine, and is not adequate to embrace the complexity of ocean management. Many laws and regulations tend to be enacted to resolve urgent issues or immediate needs arising from the exploitation of resources and the conflicts with the environment. Thus many of the laws are sectorial, single-purpose regulations. They were adopted without systematic organisation and detailed investigation, and there is a lack of harmony with other regulations. This has affected, to a large extent, the enforcement of these laws and regulations. Some laws and regulations were enacted in the days when sustainable development was not an important policy driver. As such they do not reflect the principles and concepts of current ocean management, nor do they reflect the new principles advocated by the international community. They tend to regard economic, social, and environmental factors as separate and unconnected to ocean management. Within the national planning process, the marine component is either one of the least developed or simply non-

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Capacity Building for Integrated Ocean Management

existent. China has taken economic development as its priority, and it is still seeking a balance between the conservation of resources and the development of the national economy. The lack of an integrated and holistic approach to legislation has reduced the effectiveness of China’s marine laws and regulations. From a legal point of view, there is no independent ministry with the authority to formulate such a policy. Neither is there any unified code of laws in force regulating a national ocean policy. This is due to the absence of clear policy goals, of designated priorities, and to the fact that China lacks experience in ocean planning. Ocean related inputs to national development planning are generally received only from a few and more traditional sectors, they are evaluated on a project-by-project basis, without an examination of cross-sectoral and cross-resources implications, and therefore are not structured within an overall perspective of ocean development priorities.

Institutional Defects Ocean management in China is based on the distribution of resources. In spite of the huge marine space under its jurisdiction and its abundant resources, China has no ministry of marine affairs or independent ocean management authority. The SOA, China’s highest authority for ocean management, is under the Ministry of Land and Natural Resources, and ranked lower administratively than other ministries. The SOA does not have policy-making power, it can only raise issues and draft regulations. These limitations become especially evident when international cooperation is concerned. While the SOA has a Division of International Cooperation, it lacks the capacity to handle international ocean-related matters. China needs to unify its ocean administrations into one ministry.

423

Guifang (Julia) Xue

Subordinate to the state SOA, China’s ocean administration is divided into three Sub-bureaus that are responsible respectively for the Bohai/Yellow Seas (called Northern Sea); East (China) Sea, and the South (China) Sea. Further down in this system are the local management bureaus (LMBs) within local governments. They are part of the national administrative agencies and also part of the local governmental units. The dual bureaucracies can cause problems when conflicts arise between economic development and ocean management. Officially, the LMBs are responsible for resource management and environmental protection, but there is pressure within the government to increase income and employment from the marine industry. Thus management objectives often have to be sacrificed for development demands. What may further weaken the LMBs’ mission is that they are funded mostly by local governments rather than by the SOA. Actions taken by them to implement marine laws are motivated and/or constrained by their position within the local government. Thus it is the operations of the government that influence the implementation of marine law and policy. In many cases the development of the marine industry has a higher priority than the conservation of resources. Ranked above local governments are the coastal provincial governments. They also play a role in ocean management as they share a significant element of power through facilitating decision-making and enforcement. This structure was created to enable them to implement marine law and regulations in accordance with the various situations of coastal provinces. However, this management pattern does not strengthen ocean management, because it is not compatible with the nature of the seas and oceans. Each coastal province considers the exploitation of marine resources from its own particular interest, and the advantages or potential of management measures cannot be effectively implemented in an integrated

424

Capacity Building for Integrated Ocean Management

manner. Conflicts over sea use often arise between neighbouring provinces. As a consequence, confusion, lack of information, and poor motivation at provincial and local levels often occur. The geographic subdivision of sectoral functions further complicates the governing system due to the fact that current institutional arrangements do not span the land-sea interface. This translates not only into a lack of continuity in jurisdiction but also into multiple jurisdictions and laws that apply to various geographic limits. This, added to the division of authority among different governmental levels, creates difficulties in decisionmaking, thereby widening institutional gaps, encouraging overlaps, and allowing duplication of efforts. A typical feature of China’s ocean administration is the overlapping of authority and “implementation gaps” existing simultaneously in management processes.

Implementation Inadequacy Frustrated by depleting resources and a deteriorating ecosystem, China is making an effort to find achievable ways to address the issues affecting its management. China is in the process of implementing its marine laws and policies through a number of initiatives, including: to establish State marine management authorities and local agencies responsible for coastal regions in 12 provinces; to employ more personnel in marine law enforcement, management, and scientific research; to construct a national policy-making mechanism to promote the coordinated development of marine industries (fishery, offshore oil and gas, coastal mining, sea-salt production,

shipbuilding,

marine

transportation,

tourism,

marine

environmental protection, marine scientific research); and to develop a multi-agency maritime surveillance and enforcement force integrating air, sea, and onshore marine surveillance and management. However, the

425

Guifang (Julia) Xue

progress has been slow and implementation has been selective and incomplete. In China, the framework within which marine policy and management decisions are made is organized under a ministerial system of government: the State Council, ministries, and agencies. The ministries are primarily responsible for outlining national policies within their particular spheres of competence. The agencies, under the responsibility of the ministries, are responsible for the implementation of sectoral, single-purpose national goals drawn up by the ministries and the representative bodies. The organisational structure of China’s ocean management appears far more complex than it should be and results in inadequate enforcement. As a socialist country, China’s ocean management is governmentdominated. Marine policy-making and enforcement processes are controlled by the government at different levels, thus constituting a command-andcontrol management system. This system, combined with the common property nature of marine resources, leaves the ocean management institutional framework inadequate to support effective management. The framework provides industries with little motivation to comply with laws but strong incentive to maximise short-term gains and bypass the regulations. At the implementation level, China’s ocean management still does not meet the requirements of sustainable development. The major problem is the absence of coordination between the planning and the operational levels. From the top down, the absence of clear policy goals and of designated development priorities, coupled with the sometimes limited roles assigned to regional and local governmental agencies in the planning process, intensifies the limitations of the system. Moreover, enforcement mechanisms used in the application of norms and rules that regulate

426

Capacity Building for Integrated Ocean Management

resources and uses are inadequate. All these problems touch upon issues concerning decentralization in executing management practices, and the delegation of decision-making power to lower levels, coupled with feedback to higher levels than those engaged in the implementation process. The vastness, complexity, and uncertainty of the ocean environment call for a coordinated, centralised, and highly sophisticated development response. A supporting infrastructure has to be built. Effective systems of management and control of the entire set up are also necessary. Although there is an overwhelming need for concerted efforts to launch and implement IOM programs, the Chinese government has not been able to assemble the human, institutional, and financial resources needed to set up realistic, workable management strategies. It now faces the more difficult challenges of implementing existing policies and fully integrating them into economic development plans and programmes. Further measures are still required to improve the effectiveness of its laws and policies.

Suggestions for the Way Ahead

Capacity building is an ongoing process of transformation of Chinese government that defines its own needs and implementing its own solutions and mechanisms for capacity building are still under development. Based on principles and lessons derived from past management practice, China has to follow the key guiding principles to develop a wide range of capacities for IOM.

To Integrate Ocean Management Institutions The real integration of ocean management has not yet been achieved in China or reflected in its institutions. The discussion of China’s

427

Guifang (Julia) Xue

institutional problems showed that the core of the matter resides in the need to strengthen the policy making and planning infrastructure for ocean development while improving the linkages among the various components of the marine management system. The absence of an overall ocean policy framework and highly fragmented decision-making procedures result in internal duplication and overlap. An integrated approach of ocean management needs to be adopted in China if sustainable development is to be achieved. It is essential for China to identify priorities and determine the means for building the capacity to implement international requirements, taking into account the environmental and economic needs. The key to China’s success will be the ability to adopt integrated approaches to its policy formation and effective enforcement. Apart from improving the supporting systems of the current laws, it is necessary to devote major efforts to formulating a comprehensive National Marine Law consistent with the LOSC and take it as the fundamental law for China’s current marine legal system. Regarding the institutional organization, it is necessary to improve the coordination and control function over marine activities and establish a trans-sectoral, inter-ministerial coordination committee so as to raise the capacity of coordination and enhance the effect of consultation. The oceans are known to be our last frontiers with a very complex environment. The conservation of the marine environment and its resources calls for an integrated legal framework and its concomitant enforcement. To integrate and strengthen existing institutions requires capacity to undertake impact assessments of significant policy and development initiatives and to ensure an integrated approach is incorporated in the ocean management regimes. China has an institutional structure in place that can function in ocean policy formulation and implementation or performing new ocean

428

Capacity Building for Integrated Ocean Management

related tasks. In designing institutional arrangements, efforts should be made for the incorporation of decision-making mechanisms that take account of the linkages between economic development and ocean management. Efforts that facilitate the formation of these linkages and integrate management strategies should be enhanced.

To Promote Sound Participatory Processes Sound participatory processes should be promoted in the design, implementation, and monitoring of ocean management policies and practices. It is not enough to rely only on the government’s functional departments to rationally develop marine resources, protect the marine environment, and ensure the sustainable development. Ocean policy must be integrated horizontally, across disciplines, departments, and specialised agencies, and between the public and private sectors, as well as vertically, across levels of governance in a coherent system. China faces the greatest challenge of mobilizing all sectors of society in order to implement its laws and policies. China needs to set up a unified approach with different emphases in response to sustainable ocean development priorities. The promotion of sound participatory processes needs to work at two levels: from the top down and from the bottom up: first, in order to build political support for ocean management, it is essential for the government to formulate and implement IOM strategies in close collaboration with the ocean-related agencies so as to build up the capacity of political and administrative institutions. Second, it is necessary to give full play to the public, scientific, and technological groups. This may be achieved by means of education and diversified medium propaganda to popularize marine knowledge, raise the marine scientific and cultural qualities of the grassroots and foster the

429

Guifang (Julia) Xue

consciousness of the public in participating in the marine resource conservation and environmental protection. Marine science teaching on the sustainability of ocean space and its resources should be strengthened at all levels, from primary to adult education: in curricula at university level; in adult education programmes for ocean users (fishermen, seamen, workers in the oil industry, coastal engineers) and for managers of ocean affairs. To establish the links between the scientific community, the decision-making departments, and the public, it is important to get advice and guidance from the scientific and technological circles for sustainable ocean development.

To Get Global Involvement and International Support As mentioned earlier, China has gained support from international agencies through various projects and has received assistance from foreign experts in the form of scientific and technical training. However, China still needs more support in setting ocean management priorities to deal with long-term challenges. China also needs assistance in building the expertise—the capacity—to plan and carry out sustainable ocean management decisions. China needs to use support from the international community to improve its capacity building regarding the handling of emerging issues, acquisition of needed human, technical, and fiscal resources, and effective communication between decision-makers, resource managers, and citizens to support national development policies. Support and assistance in these areas will accelerate China’s progress in overcoming its technical and financial constraints in its ocean management system and put it on the fast track for capacity building for IOM. Strengthening ocean development involves not only operational and structural adjustments but provision of the necessary means such as capital,

430

Capacity Building for Integrated Ocean Management

technology, human resources, and managerial capabilities. In China, as in the majority of developing countries, shortcomings are particularly evident in the availability of expertise and technical capacity to address ocean management issues, marine scientific research, information systems for planning and management, marine technology, and overall funding. A fundamental goal of capacity-building is to enhance the ability to evaluate and address the crucial questions related to policy choices and implementation modes among development options, based on an understanding of environmental potential limits, and needs as perceived by the Chinese government. It is important for China to cooperate and exchange achievements in research activities with the international organizations and related countries to facilitate the training of technical personnel, improvement of expertise, and improvement of methodology in ocean management. The adoption of overseas research achievements and experience in the relevant areas shall improve China’s capacity building. International cooperation and assistance should include the gaining of support from the relevant agencies of the UN such as UNEP and UNDP. Assistance in the form of skills, knowledge, and technical guidance can come from the UN and other organizations. The World Bank as well as non-governmental organizations can also provide assistance in establishing the related organizations.

To Adopt New Management Approaches It is worth noting that the international community has been developing the ecosystem approach as a key concept for and an integral part of ocean management. However, adopting a successful ecosystem-based approach to manage the oceans and seas and marine resources is not easy.

431

Guifang (Julia) Xue

Such management must be integrated and have clear objectives to be effective. 34 With heavily depleted marine resources, China has to consider the ecosystem approach seriously. 35 The severity of the resource crisis and environmental degradation suggests that considerable effort is needed to improve management. 36 China has undertaken major programmes designed to combat the effects of marine resource depletion and environmental deterioration, but needs to devote more attention to the underlying causes. The development of capacity building has highlighted the need for solid scientific data that are crucial in assessing the state of marine resources and in assisting policy makers to prioritize management programs. The overwhelming need for better data on the state of critical marine resources and an effort to obtain data on the actual extent of these resources and their current condition is equally important. However, no regulation can be found on scientific data in China. Only in recent years has China started to address the lack of scientific data in its ocean management. China needs to accelerate its progress to overcome its constraints and to set up a centralized data system with a proper mechanism for the collection, collation, and dissemination of information. As a developing country, China should

endeavour

to

strengthen

its

scientific

and

technological

infrastructures. For this purpose a percentage of the educational budget should be allocated. Marine research and development should serve to

34

Ecosystem considerations were promoted in the Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem, adopted on 4 October 2001: E/CN.17/2002/PC.2/3, annex. 35 China is aware of the fact that the increasing population and rapid economic growth in the coastal areas has put immense pressure on the marine resources. See SOA, National Plan of Marine Economic Development (2001-2010), p. 1. Available from: http://www.soa.gov.cn/law/12811a.htm. 36 See Fang Wang, China’s Strategy on the Sustainable Development of Marine Resources, p.3 available from: http://www.cima.gov.cn/zuijinziliao/zjzl-01.htm.

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enhance understanding of ocean resources and processes as a basis for the IOM.

To Develop Human Resources and Personnel Training Successful management of marine resources and sound environment requires personnel with advanced management skills. Personnel training is the decisive factor in capacity building. Without competent capability, ocean management will remain illusory. China’s capacity building needs to emphasise human resource development and personnel training to improve its ocean management capacities. The creation of the necessary IOM expertise puts a heavy demand on fully trained personnel. The training of skilled personnel is to be adequately planned at all levels of government in China. As to human resources, high priority should be given to the development of expertise in the field of policy formulation and implementation. The complex system of ocean development entails well-designed management personnel with sufficient expertise to lead ocean management. China has promoted training programs to develop a professional science and management leading group as well as general education and outreach personnel. China needs to consider the creation of special training programmes in the following areas: (a) to conduct training for all officials responsible for natural resources management as well as the fundamentals of IOM; (b) to conduct training of the policy makers to assist them in using the measures in the process of drafting policy. (c) to conduct training for young scholars and researchers for future participation in the management initiatives of ocean development. Key domestic university training centres include Nanjing University, Ocean University of China and Xiamen University. Existing agencies will have to be appropriately strengthened to

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meet the demands of the growing challenge. The strengthening of capabilities in the area must be accorded high priority in China to meet the challenge of ocean development.

Concluding Remarks

China’s ocean management has faced serious problems, especially the decline of marine resources and the deterioration of the marine environment. This situation requires strenuous effort to build its capacity for ocean management and to improve the management efficiency should sustainable development be achieved. The last two decades have seen immense

expansion

of

China’s

marine

industries

together

with

mushrooming laws and regulations, but the implementation of these laws and regulations has not been satisfactory due to institutional defects that stem from three aspects: one is China’s limited legislative capacity which affects the enforcement of its laws and policies; the second is the complex administration which results in overlapping authority and implementation gaps. Finally, limited physical capacity, such as insufficient personnel and the lack of financial support to conduct field inspections and land-based monitoring, further worsen the situation. These constraints affect current organizational arrangements and the successful implementation of laws and policies. Sustainable development is a strategic choice of both developing and developed countries. The paper has illustrated the development of capacity building in China for IOM and has attempted to investigate possible solutions to improve China’s capacity to achieve sustainable development. The paper argues that the major problem facing China’s ocean management, to a certain extent, has unique characteristics due to the political, social, and

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economic circumstances in which it is embedded. This management system may not be applied, as a comprehensive model, to all states of the world. However, essentially, China’s ocean management is typical of a developing country, in particular, its principles and practices. Ocean management by developing countries has been the weakest link in the global effort and presents a great challenge in addressing the global crisis. The experiences of China, especially those in building capacity, may provide a valuable lessen for developing countries to make use of China’s successes and to avoid its failures. Despite evidences of China’s positive response in supporting international framework and domestic progress on ocean management, there is still great concern about China’s impact on global sustainability. China’s capacity building practices for IOM, as an important part of the global effort, have critical impact on the state of world’s ocean. China’s progress towards sustainable development is of interest to all parts of the world. The concept of capacity building is central to China’s sustainable development. The construction of the “soft capacity” for IOM is more important, as it takes a lot longer to show improvement and it can create incredible stimulations in improving management effect.

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PANEL V: MARINE SCIENCE AND POLICY

Marine Science and Policy: Continental Shelf Petroleum Development Paul Kelly 1 Abstract The offshore oil and gas industry is currently experiencing one of the most expansive periods in its history. Growing worldwide demand and high prices for oil and gas are stimulating increased exploration in deepwater where company expenditures are expected to reach $20 billion per year by 2010. Remarkable technological advances are enabling companies to reach record water depths (a new world record well in 10,000 ft of water) and record ultra deep gas wells in excess of 30,000 ft subsea. Major policy issues relating to access to potential new energy resources to meet rising demand, particularly in the United States, remain to be resolved. U.S. policy makers have limited continental shelf exploration to the Gulf of Mexico and Alaska on environmental grounds, although recent high gasoline prices seem to be changing popular views on the need to stimulate domestic production. Also, the U.S. Senate has yet to vote in favor of the United States acceding to the United Nations Law of the Sea Convention, which has further consequences regarding future energy supply. As continental shelf development advances into deeper waters, the interest of scientists has increased. New structures in the water offshore have stimulated new communities of living marine resources. Chemosynthetic organisms previously unknown to science have been discovered near oil platforms in the deep ocean, and a population of sperm whales previously unknown has been discovered nearby. These developments bring home the importance of recognizing that government agencies, the academic and research communities, and the private sector can and 1

Consultant, Rowan Companies, Inc., Houston, Texas. The author’s PowerPoint presentation can be viewed on the accompanying CD.

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should work together to acquire more knowledge and understanding of the oceans as we work to achieve economic and environmental sustainability and bring needed attention to the important benefits of ocean exploration. A New Era for Offshore Oil and Natural Gas Today the worldwide oil and natural gas industry is experiencing one of its most expansive periods in the last several decades. Only recently have we come to realize that high commodity prices and the need aggressively to develop new reserves may be with us for an extended period of time. OPEC’s spare production capacity ex-Iraq of only 1-7 mb/d, or 2% of worldwide demand, remains uncomfortably low considering the lack of visibility into Chinese demand growth, geopolitical tensions in Iran, Iraq, and Nigeria, and most recently, Venezuela, as well as worldwide production challenges. China has experienced consistent 8% to 10% GDP growth in each of the last six years, but annual apparent oil demand growth has varied wildly between 2.6% and 15.4%. 2 The lack of visibility into China’s oil demand is a key uncertainty as we look ahead. Likewise, in the natural gas market we have a tight supply and demand balance which, when combined with increasing weather dependency, results in further price volatility and quite competitive global liquefied natural gas (LNG) markets. All these factors are resulting in substantial increases in capital investment in exploration, production, and transportation in the petroleum industry, which already dwarfs any other marine industry in terms of assets and annual expenditures. There is no question that oil companies are 2

Simmons & Company International, “Macro Energy Outlook 2006.”

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investing a large percentage of the revenues they are earning from higher commodity prices into the search for new reserves of oil and gas. With many of the prospective onshore areas already explored, most of the new focus is on continental shelf petroleum development, and it is here that we see the interaction between marine science and engineering on the one hand, and public policy on the other. Note: see the accompanying CD for best viewing of the illustrations (PowerPoint file).

The Technical Revolution in Continental Shelf Drilling There is underway today a true technical revolution in our capability to explore in deeper and deeper water and to deeper and deeper subsea depths in shallow and ultra deep water. Figure 1 illustrates all the deepwater areas and basins in the world.

Figure 1. Deepwater Areas and Basins of the World. Source: Offshore Magazine 2006.

Early successes in deepwater exploration were achieved in Brazil and the United States, with West Africa soon following. These areas in the Atlantic Basin are now often described by oilmen as the “Golden Triangle.” Figure 2 shows the progression of water depth capabilities to 3,051.2 mt or 10,011 ft with

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Figure 2. Water Depth Capability Progression. Source: Offshore Magazine 2006. a well drilled by Chevron in the US Gulf of Mexico using Transocean’s Discoverer Seven Seas drillship (Figure 3).

Figure 3. Discoverer Seven Seas. Photo courtesy Transocean.

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Global deepwater expenditures are estimated to reach $20 billion per year by 2010. Exploration drilling is conducted using one of three types of mobile drilling rigs: the jack-up rig, which is shown in Figure 4, is a self-elevating platform used for the most part in waters less than 500 ft; the semisubmersible

Figure 4. Jack-up Drilling Rig. Photo Courtesy Rowan Companies. rig, shown in Figure 5, which has sponsons that can be ballasted to float

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Figure 5. Semi-submersible Drilling Rig. Photo courtesy Transocean. below the surface to a depth suitable to weather and other stability conditions up to four or five thousand ft; and finally, the drillship, illustrated in Figure 6, which can perform in waters in excess of 10,000 ft and has large capacity for

Figure 6. Drillship Noble Roger Eason. Photo courtesy Noble Drilling.

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pipe and other supplies needed for work in remote ocean locations. Mobile drilling units can cost anywhere from $225 million to $500 million to build. Figure 7 shows the current location of jack-ups and semi-submersibles throughout the world by number and region.

Figure 7. Active Rig Fleet. Source: Offshore Magazine 2006. After a discovery is made the well is tested further to establish if potential reserves are adequate to justify moving into the production phase with substantial further investment. Additional wells may be drilled over the prospect to further determine flow rates and the extent of the field. Assuming economic criteria are met, the oil company operator will then move forward to contract to build a permanent production platform, which may cost anywhere from several hundred million to over a billion dollars.

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Figure 8. Deepwater System Types. Source: Offshore Magazine 2006.

Figure 8 illustrates various deepwater system types. Well heads and production equipment in a major field development can cover miles of sea floor, as illustrated in Figure 9.

Figure 9. Field Development. Source: Minerals Management Service.

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Advances in Geological Survey Technology Advances in geophysical survey technology have allowed oil and gas explorers to gain a clearer picture of subsea geological structures at greater depths. Over the past 25 years, multi-beam sonar has been developed which, taken together with remarkable advances in computer graphics, has revolutionised our ability to image these structures and increase rates of success. The same technology can be used to image and map the seafloor. Also, once available only to those companies and institutions which had the wherewithal to own supercomputers, advances in computing and imaging technology now make such data accessible on laptops, which has increased the user base for this technology dramatically.

Ultra Deep Gas on the Shelf Ultra deepwater drilling has garnered most of the attention in recent years. However, there is another frontier area in ocean drilling exploration where similar technology is causing revolutionary advances in the search for natural gas offshore. Explorers’ ability to see deeper subsea geological structures has caused companies tempted by these images to drill to depths deeper than 30,000 ft subsea in search of natural gas in shallow waters on the continental shelf. Figure 10 is a photo of Rowan Companies’ jack-up rig Scooter Yeargain now drilling a

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Figure 10. Jack-up on Location. Photo Courtesy Rowan Companies. well, under contract to ExxonMobil Corporation and partners, destined to reach 32,000 ft or more subsea in the Gulf of Mexico offshore Louisiana. The well is named “Blackbeard West” and has been drilling for a year and a half. One of the crew on the rig was heard to say that, as the well approached total depth, he and his colleagues would be listening carefully for the cries and screams of the damned. Working at such depths involves serious scientific and engineering challenges for the oil company and its contractors. For example, Rowan has responded to the technical challenges of deep gas drilling with rigs like the Scooter Yeargain which have a hook load capacity in the derrick exceeding two million pounds. Just think about what kind of power it takes to lift six miles of drill pipe! Likewise, the oil company, the contract driller and many other manufacturers of downhole instruments and tools have to deal with the high pressures and temperatures at these depths, against which their products will be tested. Figure 11 shows the world’s first 3,000 hp mud pump, which Rowan has

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Figure 11. 3.000 hp Mud Pump. Photo courtesy Rowan Companies. developed for extraordinary pressure control (7,500 psi). Each rig has three of these on board. Think about the risk the oil company is taking. The previously reported cost of this single well is $150 million. Will gas under these conditions have been cooked away? Will the rock have been cooked so as to destroy its porosity, not allowing any gas present to escape? A good number of discoveries have been made at subsea depths on the shelf ranging from 15,000 to 22,000 ft. We all await the results of Blackbeard with great anticipation. Continental shelf development produces 30 percent of America’s oil and natural gas supply, and the petroleum industry, working with its principal government agency regulator, the Minerals Management Service, works hard to replace the resources lost through depletion, much less increase production to meet rising demand.

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Figure 12. Looking down the “Moon Pool” of an offshore drilling rig. Photo courtesy Rowan Companies. Offshore Energy Policy Challenges The major policy issues relating to continental shelf development in the United States involve access to offshore public lands for exploration. The fallout from an oil spill which occurred in California’s Santa Barbara Channel in 1969 has continued to hinder efforts to take all this marvellous technology to US areas outside the Gulf of Mexico. Offshore Alaska is the exception, although offshore exploration in that region has not produced much oil or gas up to now. The political strategy used to block activity on the US East and West coasts has been the imposition of Presidential and Congressional moratoria prohibiting exploration in these regions. There is some good news, however. Last week the US House of Representatives passed legislation which would allow individual states to opt out of federally imposed moratoria if the Governor and the State Legislature in a state subject to moratoria vote in favour of doing so. The US Senate must next approve the initiative, and that is by no means assured. Nevertheless, the political landscape in America does seem to be changing as high oil and gasoline prices test the patience of the consumer and supply concerns vex

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industrial users of natural gas and oil products. Senators and Congressmen from the inland states are now challenging California and Florida’s blanket opposition to offshore development, arguing that the industry’s good environmental record offshore and the costs of moratoria in terms of domestic supply have changed the costs/benefits balance. Another land access issue in America is the failure of the U.S. Senate so far to vote in favour of acceding to the United Nations Law of the Sea Convention. I describe this as a land access issue because Article 76 of the Convention could provide opportunities to explore vast acreage beyond 200 miles off the coast of any nation that can delineate its shelf in a manner that meets the requirements of Article 76. This, of course, is not the only reason to support ratification. Up to now a handful of Senators, using special protocols of the institution, have kept the majority leader from allowing the matter to go before the full Senate for a vote. The consensus view is that, if this happens, the vote in favour will be nearly unanimous, and there is hope that this can happen in the 2006 or 2007 sessions of the Senate under the leadership of Senator Richard Lugar (figure 13).

Figure 13. Senator Richard Lugar (Chairman, Senate Foreign Relations Committee) meets with former US Ambassador to the United Nations John Danforth.

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Marine Science and Continental Shelf Development

Skyscrapers for Fish The presence of oil and natural gas facilities on the continental shelf has provided new opportunities for marine science discoveries and education. Platforms constructed offshore California before leasing moratoria came into being have been described as “skyscrapers for fish” and “hidden oases.” In the shelter of a platform fish larvae and juveniles find relative safety from predators. Juvenile fish can grow at shallower levels in the water column, away from the adults and predators gathered at deeper levels. Coral communities attached to platforms also serve as a nursery for larvae and rich feeding grounds for young fish. The complex support system that stabilizes the platform also serves as home for thousands of mature fish. Mussels have been harvested for the restaurant industry from the legs of platforms in the Santa Barbara Channel. Seventy percent of all saltwater fishing excursions in the Gulf of Mexico offshore Louisiana are to oil and gas platforms.

Chemosynthesis and Biodiversity Another area of marine science research and knowledge that has been facilitated by the presence of oil platforms is chemosynthesis. Chemosynthesis is independent of sunlight, the source of energy for every other form of marine life. Chemosynthetic bacteria are plentiful around seeps in the sea floor but also inhabit the insides of many types of large animals, providing their food through the use of chemicals seeping from the sea floor (figure 14).

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Figure 14. Chemosynthetic Communities. Photo courtesy Minerals Management Service. In the Gulf of Mexico, “cold seeps” have been discovered. Unlike the better known hot vents along tectonic plates in other parts of the world, life here requires little warmth to develop. The deepest chemosynthetic communities found in the Gulf of Mexico to date were recently discovered by Chevron at a water depth of over 9,000 ft in Alaminos Canyon. These deep communities have been found to have many new and different species for scientists to study for many years. Discoveries like this demonstrate the potential the offshore oil industry has to help advance knowledge of the biodiversity of our planet. In many parts of the world underwater vehicles loaned to researchers by oil platform operators, cameras on wellheads on the sea floor, and various other instrumentation packages are being used to study our relatively unexplored oceans.

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Figure 15. Coexistence. Photo courtesy of Minerals Management Service. Moby Dick Survives One of the most exciting discoveries made in recent years as the result of offshore oil and gas exploration is a population of previously unknown sperm whales in the deepwater Gulf of Mexico. Long considered an endangered species, this population of very large cetaceans numbers between 500 and 600. Moby Dick was a sperm whale. One of the unique characteristics of this group of whales is that, unlike most other whales, they do not engage in long distance migrations. Rather, they remain in the Gulf of Mexico year round, only travelling back and forth between areas offshore Texas and Florida. Occasionally, a stray will venture up the East Coast to the Carolinas and then return. In order to make sure that noise from seismic activity does not seriously affect cetaceans in the Gulf, the Minerals Management Service requires seismic operations to shut down, if a whale is sighted within 1,500 ft of a seismic vessel, until the whale leaves the area. A gradual ramp up of the signal volume is required after the whale departs.

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Ramp ups may only be done during daylight hours for better confirmation that the whale has left the area.

Ocean Observations and Current Monitoring Across the United States regional and local marine stations and observatories are integrating their services into the backbone of a national system—the Integrated Ocean Observing System (IOOS). This system will, in turn, integrate with the international Global Ocean Observing System (GOOS), providing scientists with up-to-date oceanographic information. The goal is to make this information as “user friendly” as possible and to allow enough flexibility that end users will be able to customize the type and frequency of the data they need.

Figure 16. Ocean Eddies. Source: Oil & Gas Journal January 15, 2006. Ocean current monitoring can be used in conjunction with satellite monitoring of the ocean. Satellite altimetry is a sophisticated technique that

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can infer the height of the ocean by measuring the time taken by a radar pulse to travel from the satellite antenna to the water surface and back to the satellite receiver. In response to recent reports of high offshore currents both on the surface and at depth in the Gulf of Mexico, the MMS has requested the cooperation of the petroleum industry to help monitor ocean currents from mobile drilling units and floating production platforms. Current data collected are sent to the National Oceanic and Atmospheric Administration where they are stored on a website and may be viewed in almost real-time mode. The ocean current information will be used by the oil and gas industry in improving the design, operations and function of mobile drilling rigs and production platforms.

Exploring Mega-Furrows Reports of sudden rising currents with enormous power and force have led scientists to begin studying deep furrows in the ocean floor that have been discovered at the base of the Sigsbee Escarpment in the northwestern Gulf of Mexico. During an exploratory dive on the research submersible craft Alvin scientists from Texas A&M University and the US National Science Foundation found themselves literally in the eye of a storm. The massive wall of water they encountered was estimated to be 2,000 ft thick and moved at 1.2 to 1.8 miles per hour, far above the normal speed of 1/10 of a mile. Scientists have since recorded currents that are well over two miles per hour, strong enough to erode miles of deep furrows, up to 100 ft wide and 30 ft deep in the ocean floor. Why did this sudden “storm” deep below a calm ocean surface occur? Investigators suspect the influence of Rossby waves, which are a

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result of the earth’s rotation. Ocean topography and inter-ocean connections are also suspected to influence the strong flow. The Minerals Management Service continues to collect data about the currents and the data they leave behind. Knowing more about the processes which cause these phenomena will enable both the agency and oil and gas operators in the area to maintain safe and environmentally responsible exploration and production.

Conclusion

The previous discoveries mentioned are the result of observations made as oil and gas exploration goes deeper under the ocean than ever before and researchers go deeper to get answers to the scientific questions posed. Through partnering among government agencies, the academic and research community, and the private sector, we can acquire more knowledge and understanding through IOOS, GOOS, and other monitoring activities. Participation in these activities will ensure that industry and government have the best information available to fulfil our mission to safely recover mineral resources on the continental shelf while protecting the marine environment. It will also give ocean exploration the attention it has long deserved and provide many opportunities for new discoveries by scientists.

Acknowledgement: The author wishes to acknowledge MMS Ocean Science, the Science of Technology Journal of the Minerals Management Service as a data source for new science discoveries in the Gulf of Mexico.

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Whaling Stefán Ásmundsson 1 The history of whaling is certainly not the most beautiful story that can be told. For many years, various species of whales were hunted by large fleets in pursuit of the valuable whale oil. Overexploitation of some whale stocks continued to be a problem for many decades into the 20th century. This is a part of the story of which I assume most of you are aware. However, it is a common misunderstanding that the consequence was that all whale species and stocks are seriously depleted or even endangered. The fact of the matter, an undisputed fact I might add, is that the situation of the world’s whales varies greatly between the different species and stocks. Some are unquestionably endangered, like the North-Pacific right whale which is estimated as numbering as little as a few hundred animals. Others are unquestionably abundant, like the Antarctic minke whale whose numbers are in hundreds of thousands. One must keep in mind that there are many different species and stocks of whales. This makes it impossible to generalise by saying that whales are endangered or that whales are abundant. To state that all whales are endangered would simply be factually wrong. The fact of the matter is that while some stocks and species of whales remain depleted and threatened, other stocks and species are robust and abundant. The scientific community may disagree about many things, but on this there is consensus. Before I discuss the interaction between marine science and policy regarding whaling, I would like to mention a basic principle of the management of living marine resources, to put the issue of whaling into the context of other issues regarding the utilisation of living marine resources. 1

Head, International Affairs Office, Ministry of Fisheries of Iceland.

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When it comes to the management of living marine resources, it is a good principle which is generally accepted that following scientific advice is the best route to take. We have seen examples of scientists both overestimating and under-estimating various marine stocks, but the fact remains that the best available scientific information is the best basis we have when making policy decisions on management measures. In the modern world, a management policy needs to be built on this principle to be considered as environmentally sound. Only through basing ourselves on scientific information can we hope to achieve sustainability in the utilisation of living marine resources. As scientific information about the whole marine ecosystem, and the interactions within it, is enhanced we are increasingly managing the utilisation in a way that is ever more environmentally sound. When it comes to fisheries management there is general acceptance that managing use in line with scientific advice is the correct way from an environmental standpoint. However, fisheries managers often feel pressure from vocal pressure groups to move away from this environmentalism and allow more catches. Good managers do not give in to this pressure, but such pressure can be felt to some extent by managers all over the world. Of course, there are cases where fisheries managers give in to the pressure of allowing more catches than is sustainable according to the relevant scientific advice. But there are also many cases where scientific advice is followed. It is no coincidence that the most successfully managed fisheries are the ones where scientific advice has been followed for a long period of time. This is done in many ways. One method that we use for some stocks in Iceland is to develop catch control rules, where the proportion of the fishable biomass that is taken in any given year is decided for the long-

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term. Discussions on the management do of course continue in such cases, but they are directed into the constructive path of primarily discussing, on the one hand, the scientific methods used in assessing the stock abundance and, on the other hand, the merits of the long-term catch control rule itself. Rather than arguing annually about how much can be caught, the argument is about scientific methodology and long-term strategy. There are many other ways of managing the utilisation of living marine resources in a sustainable way. All over the world, fisheries managers are developing methods of ensuring that their management is in conformity with scientific advice, in other words, ensuring that their management is consistent with environmentalism. When it comes to fisheries, generally everyone agrees that environmentalism is the practice of following scientific advice and disregarding science is wrong from an environmental point of view. Regarding whaling, there are also vocal pressure groups that are encouraging governments all over the world to disregard science. This pressure usually comes from a different direction than the pressure that I mentioned before, as governments are being pressured to demand more protection for abundant whales than corresponds to scientific advice. These pressure groups often portray basing one’s position on science as a bad thing. Unfortunately, some governments actually give in to this pressure and abandon their scientific basis and thereby their environmentalist basis. The environmental editor of the British newspaper The Independent wrote the following in a welcoming tone earlier this year about his country’s position on whaling: “Britain’s original position was to be “guided by the science” but that view has hardened over the years”. For some reason he actually welcomed what he himself portrays as his country’s abandonment of science in formulating an environmental policy.

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Those who promote absolute protection of all whale species and stocks, regardless of their abundance, like to present themselves as environmentalists. However, we must keep in mind that as with the management of other living marine resources, environmentalism is to ensure that catches do not go beyond what is sustainable according to scientific advice. Wanting to abandon science and protect a marine resource to a greater extent than according to scientific advice has absolutely nothing to do with environmentalism. On the contrary it is in fact antienvironmentalism. There are at least two reasons why such a position should not only not

be

considered

as

environmentalism

but

actually

as

anti-

environmentalism. Firstly, it often takes the form of opposing the gathering of important scientific information about whales. Here I am not only referring to research that involves the taking of whales—as you may know such research can be important for creating and improving multi-species and ecosystem models that contribute to the sustainability of fisheries generally—but I am also referring to scientific research such as sighting surveys for abundance estimates. A policy that basically translates as “we don’t want to know the truth” is in my view a very bad policy and clearly an anti-environmentalist policy. Secondly, a policy of disregarding science promotes the principle that abandoning science is acceptable in formulating policy—that rejecting a scientific basis is actually a good thing. Few principles are as dangerous from an environmental point of view. It is bad enough not to want to know the truth, and to disregard the scientific information you actually have is not any better. Unfortunately, the International Whaling Commission (IWC) has been dominated by this anti-environmental position of disregarding science for some time. In 1982, the IWC adopted the so-called moratorium without

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its Scientific Committee advising that such a measure was required. According to the provision that establishes the moratorium, it should be in place no longer than until 1990, but it has never been formally removed. One could actually argue that it has lost its validity after 1990, and even that it was never legally valid as it is not in conformity with the IWC’s founding convention, the International Convention for the Regulation of Whaling (ICRW). Regardless of such speculation, the fact remains that there has never been a time where all IWC members have been bound by the moratorium due to their use of objection procedures and reservations. Since the adoption of the moratorium, the IWC has without any scientific justification adopted several resolutions against whaling. One could say that throughout its history the IWC generally has a bad track record of fulfilling its role of ensuring sustainable whaling on a scientific basis. For the first few decades of its existence, this was because of its failure to stop over-harvesting and since then because of its blatant disregard of science by refusing to accept anything but a zero-quota for whale stocks that everyone agrees have been demonstrated as being abundant. More than a decade ago the IWC’s Scientific Committee agreed on a method to set catch quotas in a very conservative way that would guarantee sustainability. To this day the IWC has not agreed to set any catch quotas on the basis of this method. The sad truth is that for the past quarter of a century, the IWC has been dominated by countries that oppose whaling regardless of the abundance of different species and stocks. In other words, the IWC majority has decided to disregard science, which as I have already argued, equals promoting anti-environmentalism. However, a change is taking place within the IWC. The international emphasis on applying an ecosystem approach to ocean

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management is one driving force of that change. People are increasingly realising that it is necessary to look at the marine ecosystem as a whole, including whales of course, rather than focus only on individual components in isolation. Another driving force is the fact that an increasing number of countries has started to look at the issue of whaling as an important matter of principle where their interests need to be presented even if the country in question has no intention of whaling. The principle that a country can be forbidden from utilising, in a sustainable way on a scientific basis, living resources that are within its own jurisdiction is one that many countries feel is important to oppose. This is especially true for developing countries that do not want to put richer countries in a position where they can, without a scientific justification, dictate what resources the poor country can utilise. Getting involved in whaling issues is widely seen as important in order to safeguard sovereign rights. The change within the IWC can be seen from the so-called St. Kitts and Nevis Declaration that was adopted at the IWC’s annual meeting last month. Parts of the Declaration read as follows: UNDERSTANDING that the purpose of the 1946 International Convention for the Regulation of Whaling (ICRW) is to “provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry” (quoted from the Preamble to the Convention) and that the International Whaling Commission (IWC) is therefore about managing whaling to ensure whale stocks are not over-harvested rather than protecting all whales irrespective of their abundance; NOTING that the position of some members that are opposed to the resumption of commercial whaling on a sustainable basis irrespective of the status of whale stocks is contrary to the object and purpose of the International Convention for the Regulation of Whaling;

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FURTHER NOTING that the moratorium which was clearly intended as a temporary measure is no longer necessary, that the Commission adopted a robust and riskaverse procedure (RMP) for calculating quotas for abundant stocks of baleen whales in 1994 and that the IWC’s own Scientific Committee has agreed that many species and stocks of whales are abundant and sustainable whaling is possible; UNDERSTANDING that the IWC can be saved from collapse only by implementing conservation and management measures which will allow controlled and sustainable whaling which would not mean a return to historic over-harvesting and that continuing failure to do so serves neither the interests of whale conservation nor management; DECLARE our commitment to normalizing the functions of the IWC based on the terms of the ICRW and other relevant international law, respect for cultural diversity and traditions of coastal peoples and the fundamental principles of sustainable use of resources, and the need for sciencebased policy and rulemaking that are accepted as the world standard for the management of marine resources. Although the majority of its members now want the IWC to manage sustainable whaling on a scientific basis, this does not necessarily mean that this will happen in the next few years. This is because any major decision by the IWC, such as setting catch quotas, requires a three-quarters majority to be adopted. The possibility of the IWC collapsing because of its opposition to heeding science is therefore still real. In this context, one should consider the international legal framework regarding whaling. The optimum utilisation of living marine resources is one of the principles codified in the United Nations Convention on the Law of the Sea (LOS Convention).

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There is a special provision regarding marine mammals in Article 65. This allows more restrictive measures without opening for any rights for other countries to access a coastal State’s Exclusive Economic Zone for the purposes of whaling a possible surplus. While this means that any country has the right to ban whaling within its national jurisdiction, this does not justify imposing a ban on whaling on all coastal States without a valid scientific justification. As I have already discussed, no such scientific justification exists. Article 65 also strengthens further the general obligation to cooperate in conservation, management, and study of cetaceans. In the context of the future of the IWC, it is important to note that Article 65 of the LOS Convention clearly keeps the door open for other organisations than the IWC to have competence regarding the management of whaling. This can be done either by letting other organisations that already exist handle the whaling management or by creating new organisations. The longer the IWC continues to disregard science, the louder the voices will become that call for other organisations to manage whaling. Those who oppose whaling must realise that whaling is taking place now in several places around the world, including by non-members of the IWC, and there are no indications that it will not continue in the future. Preventing the IWC from managing does not stop whaling from taking place. It only results in whaling not being controlled by the IWC. Thankfully, most whaling operations are sustainable and therefore not harmful from an environmental point of view. This is the case regarding all whaling activities conducted by IWC members. Among the countries that currently conduct sustainable whaling are Canada, Greenland, Iceland, Japan, Norway, Russia, and the United States of America.

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As this conference is taking place in Ireland, it should be mentioned that Ireland took the initiative about a decade ago to try to build bridges within the IWC and to create a conservative management framework that would have resulted in the IWC’s managing sustainable whaling on a scientific basis. That effort was an important one but unfortunately the process it started proved fruitless in the end. As a concluding remark, I would like to emphasise that the disagreement regarding whaling does not revolve around whether or not endangered animals should be protected. Everyone agrees that it is important to work together to protect those species and stocks of whales that are endangered or vulnerable. The disagreement is on whether there should be a total ban on catching animals from populations that have been scientifically demonstrated to be abundant and capable of sustaining catches. To simplify, one could say that the opposing opinions are, on the one hand, to manage sustainably on a scientific basis and, on the other hand, to disregard science. Another way to put it is to say that this is a struggle between environmentalism and animal rights activism. Those who oppose whaling like to present themselves as environmentalists. The fact of the matter is that there is no environmental reason to oppose a sustainable activity, be it sustainable whaling or any other sustainable activity. Opposing whaling has therefore nothing to do with environmentalism, and often takes the form of anti-environmentalism. Opposition to basing management on science does not deserve to be called anything else. We can only hope that the future will see all utilisation of living marine resources managed sustainably under policies that are based on scientific advice.

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Applying the Law of the Sea Convention and the Role of the Scientific Community Relating to Establishing the Outer Limit of the Continental Shelf Where It Extends Beyond the 200 Mile Limit George Taft 1 Abstract Scientists play a central role in applying the LOS Convention as it relates to establishing the outer limit of the continental shelf where it extends beyond 200 nm. The need for a prominent role for scientists was dictated by the reality of a definition of the continental shelf that was complex but workable; legally defensible, scientifically based and politically acceptable. The scientific community, beyond the Commission, may not have reached a consensus on certain scientific aspects of the continental shelf, whether it relates to, e.g., submarine elevations, certain types ridges or seamounts. Consensus is important because the outer limit of the continental shelf established by the coastal State based upon the recommendation of the Commission must stand the test of time. The science applied must be peer reviewed before the Commission makes its recommendations, although that review is not specifically required by the Convention. Hopefully however, the scientific data have been widely considered well before a submission is made and the coastal State should have incorporated such relevant reviewed matters in its submission. The regime depends on the confidence that the world community has and maintains in the Commission. The Commission must apply its expertise in a cautious manner. Coastal States must make submissions in good faith and with the recognition that time for a recommendation may not have any practical immediacy to it. Mere assertions are not acceptable. Coastal States may make partial submissions for a number of reasons, including the absence of agreed science. 1

Office of the Legal Adviser, U.S. Department of State. The views expressed in this article are those of the author and do not necessarily reflect the views of the U.S. Department of State.

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Scientists play a central role in applying the Law of the Sea Convention as it relates to establishing the outer limit of the continental shelf where it extends beyond the 200 nautical mile (nm) limit from the baselines from which the territorial sea is measured.

The need for a

prominent role for scientists was dictated by the reality of a definition of the continental shelf that was complex but workable—legally defensible, scientifically based, and politically acceptable.

It was dictated by the

general insistence of so-called broad margin States that their aspirations be met, but without unbridled unilateral assertions that could impinge improperly or otherwise unacceptably on the Common Heritage of Mankind—the seabed and subsoil beyond national jurisdiction for the exploration for and exploitation of non-living resources. All States with coasts may assert resource and certain other jurisdiction in the water column and the seabed and subsoil to the 200 nm limit, subject to maritime boundary delimitation with adjacent or opposite States. Article 76 of the Convention is relevant only to areas where the continental shelf, as defined therein, extends beyond 200 nm. That article addresses a range of continental shelf configurations globally and addresses the manner of establishing the outer limit of the continental shelf where it extends beyond 200 nm. The provision was negotiated in the 1970s, with the recognition that scientific knowledge would increase over time.

It

recognized as well that the outer limits established pursuant to that article must withstand the test of time. The article has different formulae, which may be applied interchangeably to different parts of a State’s continental shelf, with a view to maximizing the coastal State’s entitlement. Most prominently, it has both a depth of sediment test and a foot of the slope plus distance test.

In the 1970s it was expected that 30 to 40 States had

continental shelves that extended beyond 200 nm. A few years ago, one

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scientist said that perhaps 50 plus States might have such an entitlement and more recently it has been asserted that over 60 States might have such broad shelves.

These latter assertions remain to be established and must be

closely scrutinized. In light of the complexity of Article 76, a Commission on the Limits of the Continental Shelf was established by the Convention to make recommendations to the coastal State on the establishment of the outer limit of the continental shelf where it extends beyond 200 nm. The 21 members of the Commission must be experts in geology, geophysics, and hydrography. They are not judges with legal expertise and have no mandate to act in a judicial or quasi-judicial fashion. Rather, they are called upon to review the submissions of coastal States and to make recommendations— not binding decisions—regarding the submissions’ scientific soundness within the confines of the Convention. The Commission can and should look beyond its membership to a range of relevant scientific expertise; it does not have a monopoly on such expertise. Indeed, there is a range of scientific soundness which may come into play. In addition, the question is raised: how does the Commission apply the legal framework of the Convention—not the science but the law? The Secretariat of the United Nations, which supports the Commission, does not have a mandate to so advise it and certainly not in an authoritative manner.

Thus, the

Commission must act in a cautious manner, particularly when unusual questions regarding the application of Article 76 arise. The Convention requires that a coastal State make a submission of its outer limit beyond 200 nm with supporting scientific information. The matter is then subject to being publicized, with the opportunity for all States to comment thereon. All States may comment on questions relating to boundary matters, questions regarding the sovereignty of the relevant land

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territories and questions of science, among others.

Thereafter, the

Commission will consider the submission and will hear the views of the coastal State. It may ask the coastal State for more information. Ultimately it will make its recommendations to the coastal State. Should the coastal State establish the outer limits of its continental shelf based upon the recommendations of the Commission, those limits are final and binding. Should the coastal State disagree with the recommendations, it may make another submission or make a revision of its submission. This process may continue indefinitely. The scientific community, beyond the membership of the Commission, may not have reached a consensus on certain scientific aspects of the continental shelf, whether it relates to submarine elevations, certain types of ridges or seamounts, for example. There may be questions about the foot of the continental shelf or the depth of sediment in certain areas. Consensus of the relevant parts of the scientific community is important because the outer limit of the continental shelf established by the coastal State based upon the recommendations of the Commission must stand the test of time. Should certain recommendations be found to be problematic, whether to the detriment or advantage of the coastal State, inequity will result. Thus, if the scientists on the Commission recommend a certain result in a particular part of the continental shelf and science later indicates or establishes a significantly different result in a similar continental shelf of another State, that would be an awkward situation and contribute to the very instability which the Convention sought to ameliorate, if not eliminate. Therefore, the scientists on the Commission should ensure that the science to be applied has been rigorously peer reviewed. While such reviews are not fool-proof, and they may cause delays in the Commission’s review process on occasions, they will contribute to results which are more likely

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to stand the test of time. The peer review is not a stated formal part of the Commission process, but much would hopefully have been widely considered by the scientific community before a submission is made and the coastal State would hopefully have incorporated such relevant peer reviewed matters in its submission. The Commission is not limited in time by the Convention regarding its consideration of submissions. The Convention does provide that States must submit the particulars of the outer limit of their continental shelf beyond 200 nm within 10 years of the entry into force of the Convention for that State. The Convention entered into force in 1994. Thus, the earliest date to meet that requirement was 2004. However, a decision of a Meeting of States Parties extended that date to 2009. In this regard, it was only after May 1999, when the Scientific and Technical Guidelines were adopted by the Commission, that States had the information necessary to commence preparing submissions to the Commission, taking into account the Commission’s expectations.

The 2009 date does no violence to the

substance of the regime established by the Convention and should assist many States, particularly developing States. Moreover, in the case of most submissions, time for consideration by the Commission is not an issue of immediacy. Indeed, a coastal State is not prevented, as a matter of law, from exploring for or exploiting its continental shelf beyond 200 nm before it makes a submission or after it makes a submission but before the Commission makes its recommendations and the coastal State establishes its outer limit based upon such recommendations. That is because the coastal State has sovereign rights for the purpose of exploring the continental shelf and exploiting its resources, without making a declaration or engaging in any particular activities. However, a coastal State is in a tenuous position if the seabed and subsoil beyond 200 nm is not undeniably

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continental shelf as defined by international law and it nevertheless so proceeds.

That may be a problem just beyond 200 nm or may become a

problem further seaward. I know of no other LOS institution that has scientists playing such a significant role across the board as does the Commission. Its role in the scientific and administrative realm is unique and critical. The regime depends on the confidence that the world community has and maintains in the Commission. It plays a crucial role in establishing the outer limit of the continental shelf, which is also the landward boundary of the International Seabed Authority and its mandate regarding the exploration and exploitation of the Common Heritage of Mankind. The international community and the entities that intend to explore and exploit the resources of the continental shelf or seabed beyond national jurisdiction require stability of expectations. The Commission must do its job, recognizing that the stakes are high indeed. Accordingly, the Commission must apply its expertise in a cautious manner, recognizing how much scientists know today regarding the continental shelf that they did not know in the late 1970s when the provisions were negotiated. They must recognize what they do not know. The Commission must also play a thoughtful role in the administration of its mandate. For example, the Commission must balance the need for confidentiality with the need for the international community to know enough to have confidence in the recommendations of the Commission and the coastal States’ establishing the outer limits based upon the applicable recommendations.

Ethical guidelines are a part of the

equation, and they should be rigorous, broad and binding.

Confidence

building is essential. The Commission is not a body of legal experts, so its approach to legal matters must be circumspect, to say the least.

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Coastal States must make submissions in good faith and with the recognition that the time necessary for a recommendation may not have any practical immediacy for it. Mere assertions are not acceptable, but States should be able to confidently make partial submissions for a number of reasons. Clearly, if maritime boundaries are in dispute, the outer limits in those areas are not subject to Commission review, in the absence of agreement of the States concerned. But that should not be the only basis for a partial submission. If the sovereignty of the land territory is in dispute, the Commission must not act and a State should not be prejudiced by not making a submission regarding the continental shelf associated therewith. A coastal State which does not have the resources to make a completely scientifically sound submission, must not be prejudiced if it fails to make a full submission within the 10 year period, particularly, but not only, if it is a developing State. A State is reasonably expected to make a submission using the best information it has available. However, it may not have sufficient data upon which the Commission could make a recommendation. That State should nevertheless be considered to have complied with the 10 year period, particularly if it has informed the Commission that it intends to make a further submission when first making a submission of a more general nature. Good faith is essential and putting the Commission and the international community on notice is very important. Moreover, technical issues which necessitate a partial submission might include environmental uncertainties in gathering data using certain traditional available methodologies, extreme weather conditions, unavailability of affordable technical assistance, and a lack of scientific consensus on the particulars of certain offshore features. The rules of the Commission can make clear the administration of its mandate in the aforementioned situations. That would remove the uncertainty that States might otherwise have. In the absence of

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such an approach, one can foresee a race for States to make submissions with the attendant substantial costs, a potentially major misallocation of resources for that State. Furthermore, the Commission may be unable to consider fully a large number of submissions for years. What harm can there be in making clear that States need not race to undertake such a significant project, when their submission will be in the system waiting for Commission review for an extended period? That result is neither required by the Convention nor common sense. The relevant parts of the scientific community should discuss and write more extensively and in a critical manner about the many relevant issues regarding the science of the continental shelf, particularly about issues where consensus may be lacking or where knowledge is plainly lacking and which are important to the application of the Convention. Imagination, caution, and good faith as well as the application of generally recognized scientific methodologies should be the hallmark of this endeavor.

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Extension of the Jurisdiction of the Republic of Croatia in the Adriatic Sea Igor Vio and Mira Luli 1

Abstract The paper deals with the recent changes regarding the maritime jurisdiction in the Adriatic Sea. While its seabed and subsoil were delimited by maritime boundary agreements concerning the continental shelf between the coastal States decades ago, the legal status of the superjacent waters beyond the outer limits of the territorial seas was, until recently, that of the high seas. Although its regime was envisaged in the first Maritime Code (1994), which had a special chapter containing provisions of the potential Croatian EEZ in the Adriatic Sea, the exclusive economic zone was never proclaimed by the Parliament of Croatia. This situation changed in October 2003 when an Ecological and Fisheries Protection Zone was established by the Parliament of Croatia. The Decision on the Extension of the Jurisdiction was the consequence of the excessive exploitation and serious endangerment of the living resources of the Adriatic Sea, the increasing pressure of the fishing fleets of non-Adriatic and non-Mediterranean States, the detrimental effect of the illegal, unreported and unregulated fishing to the Adriatic fish stocks, and the growing awareness that the high seas regime gives neither the possibility of applying any controlling, planning, restricting and management measures towards the sustainable exploitation of its living resources, nor the opportunity to protect effectively the marine environment of the Adriatic, as a particularly vulnerable enclosed sea, against the potential pollution from ships. After the explanation of the new regime of the 1

Igor Vio is Senior Lecturer, Faculty of Maritime Studies, University of Rijeka, Croatia. Mira Luli is Assistant Professor, Faculty of Law, University of Osijek, Croatia. The authors’ PowerPoint presentation can be viewed on the accompanying CD.

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Croatian Ecological and Fisheries Protection Zone that is compared with that of the Exclusive Economic Zone as regulated in Part V of the United Nations Convention on the Law of the Sea (1982), the paper refers to some of the relevant provisions of the second part of the new Croatian Maritime Code (2004) with the title “Marine and Submarine Areas of the Republic of Croatia” and contains the analysis of various legal aspects and their application to the Protection Zone. Besides giving an overview of the recent developments in the national legislation on the law of the sea of Italy and Slovenia, the paper also analyzes the political reasons which caused the postponed implementation of the new regime, as well as relations among Adriatic coastal States and the EU concerning the management of the living resources. The main problems regarding maritime boundary delimitations between the Croatian Ecological and Fisheries Protection Zone and those of its neighboring States in the Adriatic, as well as possible means of dispute settlement, are discussed in the final part.

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Introduction

The Adriatic Sea is a basin between the Apennine Peninsula and the Balkans surrounded by several coastal States: Italy, Slovenia, Croatia, Bosnia-Herzegovina, Montenegro, and Albania (whereas Greece has several islands in the southern part of the Strait of Otranto). It is a typical enclosed or semi-enclosed sea as defined in Article 122 of the United Nations Convention on the Law of the Sea (1982). With its rather modest dimensions (the surface of 138.595 km2) combined with slow marine currents, which cause a relatively long exchange periods of its water mass with the Mediterranean Sea through the Strait of Otranto, it is particularly vulnerable to marine pollution. Having in mind the increased marine transport of harmful substances to and from the ports of the Adriatic coastal States, there is a high possibility of an accident which could seriously endanger its delicate ecosystems. Another potential source of environmental degradation are ballast waters from the tankers navigating towards the Adriatic terminals, and this threat would be significantly augmented if the multinational project of transporting Caspian oil by pipelines through various countries of Eastern and Central Europe should be carried out. From the legal point of view, the aggravating factor was the regime of the Adriatic Sea beyond the outer limits of the territorial seas. There were not many similar examples of enclosed or semi-enclosed seas where the coastal States, although parties to the UNCLOS 1982, for decades after its adoption in Montego Bay did not take advantage of its provisions and did not proclaim their exclusive economic zones. Instead of establishing the EEZ regime in the Adriatic, which would have enabled them to govern, manage, co-operate and preserve their maritime areas, they tolerated the high seas regime which gives neither the possibility of applying any

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controlling, planning, restricting, and management measures towards the sustainable exploitation of its living resources, nor the opportunity of protecting effectively the marine environment of the Adriatic against the potential pollution from ships. However, this situation was changed in October 2003 when the Ecological and Fisheries Protection Zone was established by the Parliament of Croatia and it seems that the other coastal States will follow this example.

Extension of the Jurisdiction in the Mediterranean Sea

There are twenty-one coastal States bordering the Mediterranean Sea and so far twelve of those have extended their jurisdiction beyond the outer limits of their territorial seas. Five countries have proclaimed their exclusive economic zones: Cyprus, Egypt, Morocco, Syria, and Tunisia. Cyprus and Egypt concluded the Agreement on the EEZ delimitation in March 2003, whereas Morocco, Syria, and Tunisia will have to negotiate their maritime boundaries with the respective neighboring states. Before proclaiming its EEZ Tunisia had a fishery zone extending up to the line defined by the 50meter isobaths in the Gulf of Gabes. Other states which also proclaimed their fishery zones are Algeria, Libya, Malta, and Spain. The Spanish example is particularly interesting. Although it had proclaimed its exclusive economic zone in the Atlantic Ocean back in 1978, reserving the right for its government to approve the extension of the EEZ in the Mediterranean, it never exercised this right and for two decades any resource conservation policy measures were restricted to the twelve miles of the Spanish territorial sea. However, the excessive exploitation of the fishery resources led to the depletion of certain fish stocks, those of red tuna in particular, so that Spain

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decided to extend its jurisdiction in the Mediterranean Sea but not in the form of the exclusive economic zone. The Spanish Fishery Protection Zone was established by the Royal Decree 1315 of 1 August 1997 and it extends from Punta Negra – Cabo de Gata, proceeding in the direction of 181 to the point at a distance of 49 nautical miles from the starting point, and continuing eastward to the equidistant line with the neighboring countries, up to the maritime boundary with France. In the Article II of the Decree it is stated that in the said zone “Spain shall have sovereign rights for purposes of conservation of living marine resources, as well as for the management and control of fishery activity, without prejudice to the measures for protection and conservation of resources that have been or may be enacted by the European Union.” Based on the international law of the sea and with the purpose of protecting the living resources and maintaining its labor-intensive smallscale fleet in the Mediterranean, the Spanish government went on with this unilateral proclamation in spite of the strong opposition of its two neighboring states and EU members: France and Italy. These two countries took the same approach concerning the extension of their maritime jurisdiction in the Mediterranean Sea: they both proclaimed an ecological protection zone without any reference to fisheries or management of living resources. 2 While the regime of the Italian EPZ is described in one of the following chapters, the table below contains the maritime claims of all the Mediterranean States. However, it does not include the Black Sea, where all

2

France had proclaimed its Exclusive Economic Zone in the Atlantic Ocean by Act No. 655 of 16 July 1976 and Ecological Protection Zone by Act No. 306 of 15 April 2003, while Italy has proclaimed its Ecological Protection Zone by Act No. 61 of 8 February 2006.

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five coastal States (Bulgaria, Romania, Ukraine, Russia, and Turkey) have proclaimed their exclusive economic zones.

The Mediterranean Sea—List of National Claims to Maritime Jurisdiction Coastal States*

Territorial Contigu- Exclusive Sea ous Zone Economic Zone

Albania 12 miles Algeria 12 Bosnia & Herz. Delimit. Croatia 12 Cyprus 12 Egypt 12 France 12 Greece 6 Israel 12 Italy 12 Lebanon 12 Libya 12 Malta 12 Monaco 12 Montenegro 12 Morocco 12 Slovenia Delimit. Spain 12 Syria 12 (35) Tunisia 12 Turkey 6/12

Fishery Zone

Ecological Zone

35 or 52 nm

24 miles

E.F.P.Z. 24 24 24

200 nm (Delimit.) Delim. (Cyprus) 200 nm (Atlantic)

E.P.Z. (Med)

E.P.Z.

* 62 miles 25 miles

24

24

200 nm

24 24 (41) 24

200 nm (Atlantic) F.P.Z. 200 nm 50m isobath Delimitation 200 (Black Sea)

* The coastal States of the Adriatic Sea are underlined

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Legal Regime of the Croatian Ecological and Fisheries Protection Zone in the Adriatic Sea

Ex-Yugoslavia ratified UNCLOS 82, but had never proclaimed its EEZ because of the relations with Italy. On the other hand, after the dissolution of Yugoslavia Croatia became party by succession to the 1982 UN Convention on the Law of the Sea and had the possibility of claiming its exclusive economic zone, which is a perfect legal instrument for protection and conservation of marine resources and environment. Although the EEZ regime was regulated in the first Croatian Maritime Code (1994), the provisions of its Part II, Chapter IV were never applied since the Parliament never proclaimed the EEZ (according to Art. 1042). Having finally decided to extend its jurisdiction beyond its territorial sea, instead of the simple act of proclamation of the exclusive economic zone, which would have enabled the application of the above mentioned provisions of its Maritime Code, Croatia established a sui generis area of sovereign rights and jurisdiction called the Ecological and Fisheries Protection Zone. This was a consequence of political factors, such as the opposition of Italy and France to the notion of an EEZ in the Mediterranean because the high seas regime gives more available resources to their fishing fleets, and the position of the European Commission. The start of negotiating procedures with the EU influenced the Croatian conforming to the informal EU standpoint that the EEZ regime is “not suitable” for the Mediterranean. These are some of the reasons why Croatia, following the example of Spain, who although an EU Member State, also proclaimed its fisheries protection zone in the Mediterranean, opted for a narrower version of the exclusive economic zone.

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The Ecological and Fisheries Protection Zone was established by the Parliament of Croatia at its session of 3 October 2003 and it was published in the Official Gazette No. 157/2003. Besides environmental concerns, the main reasons that caused this act were the excessive exploitation and depletion of the living resources in the high seas of the Adriatic, the continuous presence of the Italian fishing fleet (twenty times larger than the Croatian), the recently developing pressure of the fishing fleets of nonAdriatic and non-Mediterranean flags, and the detrimental effect of the illegal, unreported, and unregulated fishing of the Adriatic fish stocks. The Report of the Working Group of Experts (established by the Croatian Government in May 2003) confirmed the results of previous scientific research: the fish stocks of the Adriatic Sea had been reduced to 1/3 of the original size during the last fifty years. The Preamble of the Decision stated its legal base in Articles 55 and 122 of the UNCLOS 1982 and Article 1042 of the Maritime Code. The Croatian Parliament proclaimed the contents of the exclusive economic zone related to the sovereign rights for the purpose of exploring and exploiting, conserving and managing the living resources beyond the outer limits of the territorial sea, as well as the jurisdiction with regard to the marine scientific research and the protection and preservation of the marine environment, whereby the Ecological and Fisheries Protection Zone of the Republic of Croatia is established as of 3 October 2003. 3 This means that in its Ecological and Fisheries Protection Zone Croatia will not have any sovereign rights regarding the non-living natural resources and other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds. On the other

3

The Decision on the Extension of the Jurisdiction of the Republic of Croatia in the Adriatic Sea, Article 1, Official Gazette No. 157/2003.

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hand, those sovereign rights concerning non-living resources in the seabed and subsoil, as well as the jurisdiction with regard to the establishment and use of artificial islands, installations and structures, although not encompassed by the new regime of the Ecological and Fisheries Protection Zone, are comprised in the regime of the Croatian Continental Shelf. However, the Croatian Parliament reserved the right to proclaim, when deemed appropriate, the other elements of Part Two, Chapter IV of the Maritime Code, in accordance with the United Nations Convention on the Law of the Sea. 4 The Permanent Mission of the Republic of Croatia to the United Nations by note verbale No. 331/2003 dated 29 October 2003 notified the Secretary-General of the United Nations in his capacity as the depository of the United Nations Convention on the Law of the Sea of 1982, that the Croatian Parliament had passed the Decision on the Extension of the Jurisdiction of the Republic of Croatia in the Adriatic Sea on 3 October 2003. By that act of the Croatian Parliament, as of that day, the Ecological and Fisheries Protection Zone of the Republic of Croatia was established beyond the outer limits of the Croatian territorial sea. The Republic of Croatia in its Ecological and Fisheries Protection Zone, in accordance with the United Nations Convention on the Law of the Sea, and on the basis of the regime of the Exclusive Economic Zone (Article 56), exercises its sovereign rights for the purpose of exploring and exploiting, conserving and managing the living resources beyond the limits of the territorial sea, as well as the jurisdiction with regard to the marine scientific research and the protection and preservation of the marine environment. The implementation of the regime established by the said Decision commenced on 3 October 2004. 4

Article 2 of the Decision.

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Without prejudice to the sovereign rights and jurisdiction of the Republic of Croatia, the Ecological and Fisheries Protection Zone of the Republic of Croatia remains a sea area where all States enjoy freedoms, as guaranteed under Article 58, paragraph I of the United Nations Convention on the Law of the Sea: " ... navigation and overf1ight and the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention". The list of coordinates of the provisional outer limits of the Ecological and Fisheries Protection Zone of the Republic of Croatia corresponding to the continental shelf delimitation points drawn on the map no. 101 attached to the 1968 Agreement between Italy and Yugoslavia (pending the conclusion of the delimitation agreements) was submitted to the UN Secretariat by note verbale no. 840/05 of 2 September 2005. 5

Croatian Maritime Legislation and Enforcement of Law Like the first Croatian Maritime Code (1994), 6 the new Maritime Code (2004) also regulates the EEZ by its provisions of the second part with the title “Marine and Submarine Areas of the Republic of Croatia” and contains an analysis of various legal aspects and their application to the Ecological and Fisheries Protection Zone. 7 The Republic of Croatia has the right to proclaim its Exclusive Economic Zone on the basis of the UNCLOS 1982. Thus, the Articles 32 – 41 are related to the Croatian EEZ. 5 6 7

Law of the Sea Bulletin No. 59/2005. Official Gazette No. 17/1994 (entered into force on 17 March 1994). Official Gazette No. 181/2004 (entered into force on 29 December 2004).

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Article 32 prescribes that the EEZ of Croatia will encompass the maritime and submarine areas seaward from the outer limits of its territorial sea up to the outer limits of the EEZ allowed by general international law. With Italy as the opposite coastal State in the Adriatic Sea, Croatia cannot proclaim the maximum breadth of 200 miles envisaged by the 1982 Convention, and the two States will have to negotiate their maritime boundaries. Although the above mentioned Articles 33 – 41 regulate in detail the relations in the EEZ, among the final provisions of the maritime Code there is Article 1018 which states that “Provisions of Article 32, Article 33 Paragraph 1, Point a), Article 33, Paragraph 2, Articles 34, 40 and 41 of this Code shall apply as of the day of the commencement of the implementation of the Decision of the Croatian Parliament on the Extension of the Jurisdiction of the Republic of Croatia in the Adriatic Sea.” The listed Articles contain provisions relating to the sovereign rights concerning resource exploration, exploitation, conservation and management, and jurisdiction concerning the protection of the marine environment and marine scientific research. On the other hand, the application of other contents of the EEZ regime (sovereign rights related to the production of energy from the water, currents, and winds, as well as jurisdiction concerning the artificial islands) is postponed by the Article 1018, Paragraph 2: “Provisions of Article 33, Paragraph 1, Point b), Articles 35, 36, 37, 38 and 39 of this Code shall enter into force when the Croatian Parliament promulgates other contents of the exclusive economic zone in accordance with the Convention on the Law of the Sea.” The need for a new mechanism of control and enforcement of international and national rules and regulations is caused by the fact that the new Ecological and Fisheries Protection Zone, with its surface of 25207

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km2 which, combined with the territorial sea, makes an area of 56964 km2 that needs surveillance. With the Croatian Coast Guard not yet established, this is not an easy task for the present forces, but the so-called Government Coordination was established for this transitional period exercising a unified control of the maritime areas under the sovereignty and jurisdiction of Croatia. It is comprised of the representatives of various ministries: maritime affairs, internal affairs, defense, treasury, agriculture and fisheries, environment and culture. The Control is carried out by 1100 personnel with 15 ships, 90 smaller boats, 6 airplanes and 4 helicopters, whereas efficient surveillance is made possible by four Peregrin radars located on: a) Lastovo Island (417 m – horizon 83 km), b) Vis Island (587 m – horizon 100 km), c) Dugi Island (166 m – horizon 53 km), d) installed on a vehicle (serves as back-up). The significant modification of the established regime was introduced by the Parliament of Croatia in its Decision of 3 June 2004, 8 which amended the previous Decision and decreed that the application of the EFPZ regime would be postponed with regards to the EU countries: “For the Member States of the European Union, the application of the legal regime of the Ecological and Fisheries Protection Zone will commence after the adoption of the Agreement on Partnership in Fisheries between the European Union and the Republic of Croatia.” This was not well accepted by the Croatian public opinion, the media and the fishing industry, although the government planned it just as a temporary measure until the national legislation and practice has been harmonized with the standards of the EU. However, since during the last two years such an agreement between the EU and Croatia has not been reached, the full application of the EFPZ

8

Official Gazette, No. 77/2004.

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regime to all ships regardless of their flag without discrimination will probably commence in the near future.

National Legislation of the Neighboring Adriatic Coastal States

The Republic of Slovenia has the territorial sea which is adjacent to the territorial seas of Croatia and Italy, but during those twelve years since gaining its independence in 1991 until the Croatian proclamation of the ecological and fisheries protection zone in 2003, it had no contact with the high seas of the Adriatic. That is why Slovenia has no legal basis to claim its exclusive economic zone, fishery zone, ecological protection zone or any other area of its jurisdiction beyond its territorial sea. However, in spite of these geographical facts, the Government of Slovenia decided to go against common sense and international law and, as a reaction to the Croatian Decision on the Extension of the Jurisdiction, the Slovenian Parliament passed the Continental Shelf and Ecological Protection Zone Act in October 2005. Since these zones were proclaimed in the areas under the jurisdiction of Croatia, the Slovenian Act was interpreted by the Croatian authorities as a territorial pretension, which caused a diplomatic protest note, while the Croatian Parliament passed a Declaration which stated that the Slovenian Act is contrary to the International Law of the Sea and as such is null and void. Finally, three months later, in January 2006, Slovenia passed another controversial act and claimed the so-called “Slovenian Fishery Area at Sea” which was divided in three parts: Zone A – comprising the entire Bay of Piran, Zone B – in the territorial sea outside the Bay, and Zone C – fishing zone and zone of high seas. This Decree on Determination of the Sea Fisheries Area of the Republic of Slovenia unilaterally appropriated parts of

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the Croatian territorial sea and of its ecological and fisheries protection zone, so it thus formally confirmed territorial pretensions towards Croatia. As a consequence, the Ministry of Foreign Affairs and European Integrations of the Republic of Croatia sent a protest note to the Slovenian Embassy, which stated that the Slovenian Decree had no legal basis, and as such was unacceptable, null and void because it was not based on international law. Besides being contrary to international law and international relations, including the principles of the European Union, the Decree is contrary to the Croatian-Slovenian Joint Declaration on Preventing Incidents signed by the two Ministers of Foreign Affairs on Brioni Islands on 10 June 2005, which provides for avoiding any situations, actions or incidents of any kind that could influence the future solution of the delimitation dispute between the two states. The unresolved boundary issues have been a burden on their bilateral relations, and fifteen years of negotiations produced no result, so that one of the most important issues on the diplomatic agenda of Croatia and Slovenia should be the negotiations about submitting their dispute to one of the means of dispute settlement provided by the 1982 LOS Convention. Italy extended its jurisdiction in the Adriatic Sea and other parts of the Mediterranean around its coasts by the Act on Establishment of the Ecological Protection Zone beyond the Outer Limits of the Territorial Sea, which was passed by the House of Representatives and the Senate on 8 February 2006. 9 This Act states that it is based on the 1982 UN Convention on the Law of the Sea and 1994 Special Agreement on Application of Part XI, which were both ratified by Italy on 2 December 1994. However, as it is based also on the UNESCO Convention on the Protection of Underwater Cultural Heritage (Paris, 2 November 2001), the 9

Act No. 61, Gazzetta Ufficiale No. 52 of 3 March 2006

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Italian jurisdiction in its Ecological Protection Zone will be related not only to protection and preservation of the marine environment, but also to the archeological and historical heritage. The application of law in the ecological protection zone is regulated by Article 2, Paragraph 2 of the Act: The rules of law of Italy and of the European Union, as well as the international conventions, which are in force and binding for Italy, are to be applied also with respect to foreign flagged ships and to foreign nationals within the ecological protection zone, if these laws are related to prevention, response and control of all kinds of marine pollution, including pollution from ships and ballast tanks, by dumping of waste, pollution as a result of exploration and exploitation of the sea-bed and subsoil, pollution of atmospheric origin, and also to the protection of marine mammals, biodiversity, and to archeological and historical heritage. There is a special provision which states that the Act on Establishment of the Ecological Protection Zone beyond the Outer Limits of the Territorial Sea will not apply to the activities of fisheries. 10 This just reflects the Italian aspirations to maintain the regime of the freedom of fishing in its and in the neighboring States’ areas of jurisdiction beyond the territorial sea. Maritime Boundary Delimitation

In the Adriatic Sea there are four continental shelf boundaries between the States with opposite coasts: Italy and ex-Yugoslavia (Rome, 1968) now in force through succession between Italy – Croatia (since 1991) and Italy – Montenegro (since 2006); Italy - Greece (1977) and Italy – Albania (1992). As for the States with adjacent coasts, it is surprising that

10

Article 2, Paragraph 3 of the Act No. 61.

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they have not been similarly successful in negotiating their maritime boundaries. Not only there are two unsettled lateral boundaries concerning the continental shelf (Croatia – Montenegro and Montenegro – Albania), and three unresolved territorial sea delimitations (Slovenia – Croatia, Croatia – Bosnia-Herzegovina, and Croatia – Montenegro). After gaining their independence in October 1991 and becoming the subjects of international law, Croatia and Slovenia declared the necessity of drawing a boundary line which would divide their territorial waters by mutual agreement. Whereas both States agreed to strictly apply the rules of customary and conventional international law—especially those rules contained in the Geneva Convention on the Territorial Sea and Contiguous Zone and the UN Convention on the Law of the Sea—they could not agree on their interpretation and implementation. In its 7 April 1993 Memorandum, Slovenia claimed its sovereignty over the entire Bay of Piran, and consequently, jurisdiction was to be exercised by the Slovenian authorities. Since the Republic of Croatia is also a coastal State in the Bay of Piran, the Slovenian claim is not only unacceptable to Croatia but moreover, it is a violation of Article 1 of the Geneva Convention and Article 2 of the UN Convention. Both provisions contain the rule that the sovereignty of a coastal State extends, beyond its land territory and its internal waters (and archipelagic waters in UNCLOS) to an adjacent belt of sea, described as the territorial sea, and to the airspace over the territorial sea as well as to its bed and subsoil. If accepted, the Slovenian request would put Croatia in a position unknown until now in the whole world: to have a foreign state's sovereignty in the territorial sea in front of the Croatian coast. The second claim in the above mentioned Memorandum is the request that the territorial sea of Slovenia must have contact with the high seas. This

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claim would be realized only if a part of the Croatian territory (the Peninsula of Istria) were ceded and annexed to the state territory of the Republic of Slovenia. As these claims would be unacceptable for any sovereign state, Croatia declined them, but on the other hand, proposed a solution consisting in the establishment, by bilateral agreement, of a new very liberal sui generis regime in specified parts of the Croatian territorial sea. This regime, with some elements of the transit passage (created at UNCLOS III) for similar situations in international straits, should ensure the freedom of navigation beyond the regime of innocent passage.

The

Slovenian delegation has not accepted this proposal and so far has refused the Croatian initiative to submit the dispute to an international judicial forum (the International Court of Justice in The Hague, the International Tribunal for the Law of the Sea in Hamburg or international arbitration). The boundaries of the territorial seas between Italy and Slovenia, and between Italy and Croatia are the continuation through succession of the delimitation lines of the territorial seas between Italy and Yugoslavia in the Bay of Trieste settled by the Osimo Treaty of 10 November 1975. Both States agreed to take into account "the principles resulting from the Geneva Convention on the Territorial Sea and the Contiguous Zone". 11 It means that the delimitation of the territorial sea between the two countries was made applying the median line corrected by one of the special circumstances, namely, the necessity to enable the navigation through the territorial waters of each State to the respective ports of Trieste and Koper. Another treaty that remained in force because of succession is the Rome Agreement of 8 January 1968 between Italy and the former Yugoslavia which had determined the boundary line of the continental shelf

11 The Official Gazette of SFRY, International Agreements, no. 1/1977. The treaty entered into force on 3 April 1977.

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in the Adriatic. 12 It entered into force on 21 January 1970. The delimitation was effectuated in accordance with the Article 6 of the 1958 Convention on the Continental Shelf which contains the combined rule of equidistance and special circumstances. Although the boundary line was basically the median line between the two opposite coasts, the presence and position of certain islands (Jabuka, Palagruža and Galijula) caused a compromise during the negotiations which resulted in the departure from the median line, conceding to Italy certain areas as compensation. Jabuka was used as a basepoint but its full impact was offset by shifting the notional median line eastward, conceding to Italy an area of 1680 km2. A special provision was made for natural deposits straddling the boundary, and both parties agreed to proceed, with regard to such deposits, by mutual agreement. 13 On the other hand, the delimitation of the present EFPZ/EPZ and possible future opposite EEZ boundary between Croatia and Italy should not be difficult, since there is no obvious reason why the boundary line from the above mentioned 1968 Rome Agreement between Italy and Yugoslavia on the delimitation of the continental shelf (which is binding for Italy and Croatia on the basis of succession) should not also constitute the boundary line for the EFPZ or EEZ, which would follow the agreed coordinates and, starting from the seabed, extend vertically in order to encompass the water column and the surface of the sea. Actually, the Rome Agreement may be considered a treaty envisaged by the Article 74(4) of the UNCLOS: "When there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that

12 The Official Gazette of SFRY, International Agreements, no. 28/1970, p. 231. 13 Article 2 of the Agreement.

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agreement." Thus, a single maritime boundary would be determined for both the EFPZ/EPZ and the Continental Shelf. However, Italy referred to the Croatian Decision on the Extension of the Jurisdiction in the Adriatic Sea by issuing two notes which expressed quite different views. The Permanent Mission of the Republic of Italy to the United Nations by note no. 1681 dated 16 April 2004 notified the SecretaryGeneral of the United Nations in his capacity as the depository of the United Nations Convention on the Law of the Sea of 1982 that Croatia made “unilateral declaration concerning the ecological and fisheries protection zone”, which was interpreted as contrary to the obligation to cooperate posed by article 123 to the contracting States bordering enclosed or semi-enclosed seas. 14 This standpoint has no legal basis because every coastal State that ever proclaimed its exclusive economic zone or other zones of functional jurisdiction did it by a unilateral act, while only the subsequent phase of determining boundaries of such zones with those of its neighboring States comprised a bilateral approach in the form of negotiations leading either to a delimitation agreement or to a judicial settlement of any dispute. Having thus established their zones of jurisdiction and determined their boundaries, coastal States bordering the enclosed or semi-enclosed seas would be in position to fulfill their obligation to cooperate in the management, conservation, exploration or exploitation of living resources of the sea, in the protection of the marine environment and in the conduct of marine scientific research. The 2004 note also stated that determination of the temporary limit coinciding with the delimitation of the continental shelf contained in the 1968 Agreement was “against Italian interests in the Adriatic Sea” because it did not “take into account the change of relevant geographical 14

Law of the Sea Bulletin, No. 54, 2004, pp. 129-130.

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circumstances that took place after the conclusion of the 1968 Agreement, which implies a consequential change of the objective parameter of the median line” and “not legally well founded because that limit was agreed on the basis of special circumstances that differ from the circumstances to be considered in the determination of superjacent waters”, and this was done “in the moment in which the notion of exclusive economic zone was not well defined in the international law of the sea”. Although it is correct that the concept of EEZ was developed much later—during UNCLOS III—it also would be correct to admit that as a result of these developments, the 1982 Convention abandoned completely the special circumstances in the delimitation provisions related to both continental shelf and EEZ. That is why Italy has no legal basis for invoking any new and different special circumstances when it comes to delimitation of superjacent waters. Besides, article 74 of the 1982 Convention, which is even cited in the second Italian note, provides that the delimitation of the EEZ and similar zones, such as the zone established by Croatia, is to be effected by agreement, based on international law, in order to achieve an equitable solution. However, in this note verbale of 15 March 2006 to the Secretary General of the United Nations in reference to the Croatian note verbale no. 840 of 2 September 2005 containing the list of geographical coordinates defining the outer limit of the Ecological and Fisheries Protection Zone of the Republic of Croatia, Italy claims that this provisional limit following the coordinates from the 1968 Agreement is harmful to the Italian interests and rights because in the meantime Italy has introduced a new system of straight baselines, and because the detritus from the Po River has led to the further lengthening of the Italian coastline towards the high seas. 15 Both of these changes would have minor influence on the boundary line affecting perhaps only a small 15

Law of the Sea Bulletin, No. 60, 2006, pp. 127-128.

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portion in the northern Adriatic, while in the rest of the 1968 boundary Italy gained the above-mentioned significant concessions, which would probably be seriously reconsidered by Croatia with respect to superjacent waters if future negotiations were to abandon the concept of single maritime boundary. The third claim of Italy focuses on historic fishing rights as a special circumstance leading to different delimitation method. But it has no legal basis because it relates to the areas of the Adriatic that had the status of the high seas, where Italian, Croatian, Slovenian and other foreign flag fishing vessels enjoyed the freedom of fishing. From the moment of the establishment of an EEZ or similar zone of jurisdiction, other States may have access to certain surplus quotas of fish subject to compensation, but freedom of fishing rights definitely cannot be taken into account as a special circumstance for the delimitation of an EEZ or similar zones. Finally, the 2006 Italian note contains two claims stating that the Croatian provisional automatic extension of the seabed delimitation line to the superjacent waters has no legal foundation because it was in violation of provisions of two international treaties. The first one is related to article 4 of the 1968 Agreement, which stated that the Agreement had no impact on the legal status of the waters and airspace superjacent to the continental shelf. This point was a mere confirmation of the high seas status of those spaces with no reference whatsoever to any future delimitation. The second claim is the alleged Croatian violation of article 74 of the 1982 Convention by not involving Italy in setting the provisional limit. This argument is in obvious contradiction with the similar Italian unilateral setting of the provisional limits of their Ecological Protection Zone described below. The Ecological and Fisheries Protection Zone of the Republic of Croatia is well defined in the 2003 Decision: it comprises the maritime area from the outer limit of the territorial sea seaward up to its outer limit

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allowed under general international law. The outer limit of the Ecological and Fisheries Protection Zone of the Republic of Croatia shall be determined through the delimitation agreements with the States whose coasts are opposite or adjacent to the Croatian coast. 16 This provision of the Decision is in accordance with the Article 74 of the United Nations Law of the Sea Convention. Similarly, the Italian Act on Establishment of the Ecological Protection Zone beyond the Outer Limits of the Territorial Sea states that its outer limits will be determined on the basis of an agreement between Italy and the neighboring States with adjacent or opposite coasts. 17 Until these agreements enter into force, the Italian Act provides that the outer limits of the Ecological Protection Zone will follow the median line, on which every point is equidistant from the closest points on the baselines of Italy and the neighboring States. 18 On the other hand, the 2003 Croatian Decision contains quite a different solution, which provides that pending the conclusion of the delimitation agreements, the outer limits of the ecological and fisheries protection zone of the Republic of Croatia shall temporarily follow the delimitation line of the continental shelf established under the 1968 Agreement between the SFRY and the Italian Republic on Delimitation of the Continental Shelf. 19 However, as the two provisional delimitation lines do not coincide, which could provoke incidents in the enforcement of jurisdiction, Italy and Croatia should start negotiations as soon as possible with the purpose of achieving an agreement establishing a single maritime boundary between their various zones of jurisdiction. 16 17 18 19

Article 5 of the Decision. Article 1, Paragraph 3 of the Act No. 61. Ibid. Article 6 of the Decision.

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As for the Croatian southern maritime boundaries, the 2004 Maritime Code provides that until the agreement concerning the fixing of boundaries of the continental shelf with Montenegro is reached, the Republic of Croatia shall for the time being enjoy the sovereign rights in that zone up to the median line proceeding to the outer limit of the territorial sea starting from the entrance of the Boka Kotorska (Bay of Kotor) in the direction of the open sea. 20 Therefore, once Montenegro proclaims the Exclusive Economic Zone or similar zone of jurisdiction in the Adriatic Sea, Croatia will have to negotiate with its southern neighbor in order to reach bilateral agreement concerning the boundaries of the respective zones. The interim solution provided in the 2003 Croatian Decision for adjacent delimitation, is the line following the direction of and continuing the provisional delimitation line of the territorial seas, as defined in the 2002 Protocol on the Interim Regime along the Southern Border between the Republic of Croatia and Serbia and Montenegro. The future lateral EEZ or EFPZ boundary with Montenegro will probably be determined through negotiations or arbitration together with the delimitation of other maritime areas (territorial sea and continental shelf). Although the provisional regime established by the 2003 Protocol has not been satisfactory for the Croatian side, it is still in force and no negotiations have been started between the two countries since Montenegro gained his independence from Serbia in May 2006. The most peculiar delimitation still to be negotiated is the one between the territorial seas of Bosnia-Herzegovina in front of the narrow corridor of Neum and Klek Peninsula, and Croatia in front of the Pelješac Peninsula. The entire area is surrounded by Croatian internal waters—a unique situation in the world. 20

Maritime Code Article 42, Paragraph 3

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Conclusions

The attention of the government officials, fishermen, media, and public opinion of the coastal States has been focused on the recent changes regarding the extension of the maritime jurisdiction in the Adriatic Sea. While its seabed and subsoil were delimited by the maritime boundary agreements concerning the continental shelf between the coastal States decades ago, the legal status of the superjacent waters beyond the outer limits of the territorial seas was, until recently, that of the high seas. The situation in the Mediterranean area has gradually changed and after decades of restraining from extending national jurisdiction beyond their territorial seas, the majority of the coastal States during the last period have proclaimed either Exclusive Economic Zones or Fishery Zones, as well as the recently emerging regime of ecological protection zones and combinations of ecological and fishery zones. This trend has finally confirmed the weakness of the two major arguments stated against extending jurisdiction in the Mediterranean: the first, that without the high seas regime the freedom of navigation will be questionable, which makes no sense because this freedom is comprised in the EEZ regime with the limitations regarding coastal State jurisdiction concerning the protection of the marine environment, and the second, that many exclusive economic zones would cause numerous delimitation disputes. This is partly true but the same argument did not prevent the establishment of the Continental Shelf regime in the Mediterranean decades ago and there is no valid reason why those seabed boundary lines would not extend to the sea surface and become single maritime boundaries in the sense of Article 74, Paragraph 4 of the UNCLOS 1982.

A third argument against the extension of the

jurisdiction was never mentioned in any article: the real reason for keeping

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the high seas regime in the Mediterranean was the freedom of fishing, which enabled oversized fishing fleets of the few developed coastal States access to relatively wide areas far from their coasts and as close as possible to the coasts of other countries. As for its long term strategic interests, Croatia would be in a better position of proclaiming the EEZ, since the EFPZ regime is not regulated by UNCLOS 1982. However, for the time being Croatia should cancel the postponed application of the EFPZ regime with respect to all states without discrimination, including the Member States of the European Union. Of course, the limited access of the foreign fishing vessels would be allowed during the transitional period, until Croatia, by the bilateral agreements with those States, would determine the conditions, like quotas and remuneration, for their fishing vessels access to Croatian EFPZ. Croatia should start negotiating with Italy with the purpose of reaching an agreement on a maritime boundary between the Croatian ecological and fisheries protection zone and the Italian ecological protection zone. The other negotiations should be with Montenegro in order to establish a lateral delimitation line between the territorial seas and continental shelf of the two States. The continental shelf should be negotiated as a single maritime boundary to be applicable in the future when both States will hopefully have proclaimed their EEZ or EFPZ after Montenegro extends its jurisdiction beyond the territorial sea. It is expected that Albania will also extend its jurisdiction in the southern Adriatic but even before such dissolution of the last portions of the high seas take place, the coastal States should commence creating a common policy for the conservation and preservation of the Adriatic. An excellent example of such desired cooperation is the recent initiative to proclaim its status as a Particularly Protected Sea Area with the option of additional protective

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measures under the IMO, as well as promoting increased effectiveness of its Special Area status in accordance with the provisions of the MARPOL Convention Annexes relating to the Adriatic Sea within the wider Mediterranean basin. The Republic of Croatia, based on its strategic agenda, will closely co-operate with other coastal States in an effort to adopt efficient measures of rational management of the living resources, and of sustainable development and environmental protection of the Adriatic and the Mediterranean Sea through concerted action.

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PANEL VI: MARINE SCIENCE AND LAW

Scientific Evidence in Cases under Part XV of the LOSC David Anderson 1 Abstract The modern law of the sea, centred around the UN Convention on the Law of the Sea, looks to science and applies scientific tests in several different contexts. The particular scientific discipline varies from the biology of species of fish, to geology and other Earth sciences, to oceanography and other environmental sciences, and finally to scientific research itself. If a dispute over such a matter were to be submitted to a court or tribunal under Part XV of the Convention, there may well be a need for scientific evidence and argument to be introduced in the written and oral pleadings of the parties. One or both of the parties may also see a need to call an expert witness to give evidence on the disputed scientific issues. International judges tend to have a diplomatic or legal background: their experience does not often extend to questions of science. Any scientific knowledge they may have acquired is no more than general knowledge. Judges are familiar with the interpretation and application of treaties, including ones that apply scientific tests; but judges cannot decide disputed questions of science. Scientific evidence, especially where the parties are in disagreement about scientific issues, may create difficult problems for a court or tribunal. In these circumstances, the parties should consider most carefully how best to present their argument and evidence on scientific issues. Experience shows that joint approaches have much to commend them. Independent experts can give valuable evidence. In this connection, some relevant practice of the International Tribunal for the Law of the Sea is examined.

1

Former Judge, International Tribunal for the Law of the Sea.

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I. Scientific Tests in the Law of the Sea For at least a half century, the law of the sea has looked to science and applied scientific tests in several different contexts. The UN Convention on the Law of the Sea (“the Convention”) has continued this process of applying science to the law. Indeed, today’s law looks more and more to science as mankind’s use and knowledge of the sea increases and the need for regulation becomes ever more apparent. Important topics to which scientific tests are now applicable include the following: (A) The conservation of fish stocks, both in the Exclusive Economic Zone and on the high seas. Article 61 of the Convention imposes a duty on the coastal State to ensure that stocks in the EEZ are not endangered “taking into account the best scientific evidence available to it.” Article 119 requires States whose nationals fish on the high seas also to take measures “on the best scientific evidence available…”. In the Fisheries Jurisdiction case (Federal Republic of Germany v. Iceland) before the International Court of Justice (“ICJ”), the Court found that negotiations were required to balance the interests of the Parties, adding: “This necessitates detailed scientific knowledge of the fishing grounds.” During the oral proceedings, a fisheries biologist, Dr Meyer, gave expert evidence to demonstrate the applicant’s concern for conservation and the respondent’s uneven record in that regard. The scientific evidence clearly made an impression on the judges. 2 Scientific evidence was introduced in the Southern Bluefin Tuna cases (Australia v. Japan and New Zealand v. Japan) before the International Tribunal for the Law of the Sea (“the Tribunal”). 3 As we shall see below,

2

ICJ Reports 1974, p. 175, at p. 201. The story is told in Götz et al.,(Eds.), Liber amicorum Günther Jaenicke zum 85. Geburtstag, at p. 449 by the present writer. Reference to the scientist’s evidence was made by Judge Dillard in his separate opinion in the parallel case UK v. Iceland (ICJ Reports 1974, 3 at p. 53). 3 ITLOS Reports 1999, p. 280.

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this evidence concerned the biology of the tuna stock and its general status or condition in 1999. (B) The delimitation of the continental shelf within and beyond 200 nautical miles (nm), as well as the definition of the outer limit beyond in accordance with article 76 of the Convention. The test of “natural prolongation” involves geology and geomorphology. Two key criteria in article 76, namely the foot of the slope and the thickness of the sedimentary rocks, were advocated respectively by Dr Hollis Hedberg 4 and Dr Piers Gardiner, 5 two Earth scientists. In regard to delimitation of the continental shelf between neighbouring States within the 200 nm limit, in both the Tunisia/Libya case and the Libya/Malta case, the ICJ considered extensive written and oral evidence and arguments from both parties concerning the geological nature of the seabed of the continental shelf of the Mediterranean Sea. In the case with Tunisia, Libya called a Professor of Geology as an expert witness: he was examined and cross-examined. 6 In the case with Malta, Libya called three scientific witnesses and Malta two: they were examined and crossexamined. 7 In this latter case, the Court held that, since customary international law had developed the concept of the Exclusive Economic Zone based on the distance criterion of 200 nm alongside of that of the continental shelf, “there is no reason to ascribe any role to geological or geophysical factors within that distance…”. At the same time, the Court summarized the disagreement between the scientists called by the two sides 4

H.D.Hedberg, National-International Jurisdictional Boundary of the Ocean Floor (Occasional Paper No. 16, Law of the Sea Institute, University of Rhode Island, 1972. 5 P.R.R. Gardiner, “Reasons and Methods for Fixing the Outer Limits of the Legal Continental Shelf beyond 200 nautical miles,” 11-12 Iranian Review of International Relations (1978) 145. 6 ICJ Reports 1982, p. 18, at p. 25. 7 ICJ Reports 1985, p. 13, at pp. 8-9.

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and concluded that it “is unable to accept the position that in order to decide this case, it must first make a determination upon a disagreement between scientists of distinction as to the more plausibly correct interpretation of apparently incomplete scientific data…” 8 . This case is of general interest in regard to scientific evidence in that it demonstrates the problems faced by judges where the scientific evidence is unclear, incomplete or disputed. Scientific questions could still arise in regard to delimitations beyond 200nm and, if a dispute arises there, evidence may have to be submitted to a court or tribunal. Turning to the determination of the outer limit of the continental shelf, the coastal State is required by article 76 of the Convention to submit “information” to the Commission on the Limits of the Continental Shelf. A recent report in the public media indicated that New Zealand had spent several million dollars in acquiring scientific data for its submission to the Commission, which will look at the scientific evidence in the first instance. Other broad margin states are conducting data-gathering and research programmes prior to making their submissions to the Commission. If a delimitation dispute were to arise, whether under article 83 or article 76, the same or similar evidence may also have to be submitted to a court or tribunal. (C) The preservation and protection of the marine environment. Science and the marine environment are linked in several ways. Most importantly, the definition in article 1(1) (4) of the term “pollution”, being based on wording developed by the Group of Experts on the Scientific Aspects of Marine Pollution, has a strongly scientific flavour from its use of terms such as “the introduction by man … of substances or energy into the marine environment” and from its listing of five examples of “deleterious effects”. 8

ICJ Reports 1985, p. 13, at p. 36 (para. 41).

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This definition applies, of course, to the numerous references to “pollution” in Part XII and, indeed, throughout the Convention. More specifically, Article 123 calls for co-ordinated scientific research in enclosed and semienclosed seas and Section 4 of Part XII imposes duties on States to monitor and assess environmental effects of activities. In this connection, it will be recalled that written and oral scientific evidence was introduced in the Land Reclamation case (Malaysia v. Singapore) before the Tribunal concerning the narrow waters of the Straits of Johore. 9 With regard to the possible environmental effects of deep seabed mining, it may be noted that articles 162 and 165 in Part XI refer to “substantial evidence of …serious harm…”. (D) The provisions concerning the conduct and promotion of marine scientific research in Part XIII of the Convention. As those four examples show, the particular scientific discipline varies from the biology of species of fish, to geology and other Earth sciences, to oceanography and other environmental sciences, and finally to scientific research itself. Moreover, other examples could be cited, including the ecosystem approach from the UN Fish Stocks Agreement of 1995. The impact of science on the modern law continues to grow.

II. The Need for Scientific Evidence when Scientific Tests are Applicable If a dispute over such a matter were to be submitted to a court or tribunal under Part XV of the Convention, it could frequently be the case that scientific questions formed an integral part of the wider dispute between the parties. At the least, such questions would form part of the background to the disputed questions for determination by the court or tribunal. In either event, there may well be a need for scientific evidence 9

ITLOS Reports 2003, p. 10.

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and argument to be introduced into the proceedings. There are several possibilities. The most obvious is to include science, in the form of both argument and expert evidence, in the written and oral pleadings of the parties. One or both of the parties may also see a need to call an expert witness to give evidence on the disputed scientific issues.

10

The court or

tribunal may seek its own independent advice or information, as part of its task of ascertaining the facts. Under the Convention, a court or tribunal may also appoint its own expert(s) under article 289 - Experts, which reads as follows: In any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction under [section 2 - Compulsory Procedures entailing Binding Decisions] may, at the request of a party or proprio motu, select in consultation with the parties no fewer than two scientific or technical experts chosen preferably from the relevant list prepared in accordance with Annex VIII, article 2, to sit with the court or tribunal but without the right to vote. In practice, there are significant differences between the considerations affecting technical experts and those concerning scientific experts. The former may be more of a servant of the court or tribunal, charged with a specific task. There are several examples in maritime delimitation cases where the parties have agreed to the appointment of a hydrographer or cartographer as a technical expert to assist the court or tribunal when it has reached its tentative decision, at a late stage in the deliberations, by drawing the boundary on a suitable chart. A good precedent was the Gulf of Maine case before a chamber of the ICJ. Indeed, the appointment off a technical expert today represents the best practice since normally judges are not qualified to draw maps. Scientific experts are in a different situation since 10

For a general survey of the use of scientific and technical experts, see G. M. White, The Use of Experts by International Tribunals, 1965.

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scientific advice may be crucial to the result. The parties to a dispute are less likely to agree, in practice, to the appointment of two scientific experts to sit with the judges since the parties would have no knowledge of the scientific advice given to the judges during their deliberations. 11 Although article 289 has not yet been directly invoked, it has been discussed by the Tribunal in drawing up its Rules: article 15 of the Rules implements article 289 by providing that experts must be independent and enjoy the highest reputation for fairness, competence and integrity. The Tribunal has dealt with more than one case in which scientific (e.g. biological and hydrological) and technical (e.g. cartographical) issues were raised.

III. International Judges and Scientific Questions International judges tend to have a diplomatic or legal background: their experience does not often extend to questions of science. In-depth experience of the subject-matter of cases, such as that gained by the English judge Lord Stowell in the early 19th century, is rare. Any scientific knowledge judges may have acquired is no more than general knowledge. Courts or tribunals have jurisdiction to determine disputes about questions of law, based also on their findings on the facts. Judges are familiar with questions that have to do with the interpretation and application of treaties

11

This problem was considered by the English Court of Appeal in the case Owners of the Bow Spring v. Owners of the Manzanillo II arising from an incident of navigation involving the two vessels whilst they were in the Suez Canal. The Admiralty Court had included two Elder Brethren of Trinity House sitting as nautical assessors to advise the judge but their advice was not disclosed. The Court of Appeal ruled that fairness, including the right to a fair trial in accordance with the European Convention on Human Rights, required that where a judge in an Admiralty claim sought advice from nautical assessors, their advice should be disclosed to the parties’ counsel so as to afford them the opportunity of making representations as to whether the judge should accept the advice: Judgment of 28 July 2004 (EWCA Civ 1007. The Court of Appeal also sat with a nautical assessor).

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or with the terms of customary international law. As the ICJ stated in the Libya/Malta case, a court or tribunal cannot decide disputed questions of science. Judges have to decide legal questions on the basis of the arguments and evidence submitted to them by the parties to the case. Scientific evidence, especially where the parties are in disagreement about scientific issues, may create difficult problems for a court or tribunal. In these circumstances, the parties should consider most carefully how best to present their argument and evidence on scientific issues, always bearing in mind the amount of time available.

IV. The Case-law of the Tribunal The Southern Bluefin Tuna Cases concerned applications by Australia and New Zealand under article 290 (5) of the Convention for the prescription of provisional measures in their dispute with Japan over the latter’s experimental fishing programme for bluefin tuna in the Indian Ocean. The three States were members of the Commission for the Conservation of Southern Bluefin Tuna (CCSBT), but cooperation had largely broken down. The contention of Australia and New Zealand (A&NZ) was that the stock was endangered by the experimental fishing program since it involved catching fish in what would otherwise have been a closed season and in areas of the high seas in the Indian Ocean that had not previously been fished. The respondent contended that the dispute was scientific, not legal, and that the question was one for the CCSBT. Both sides submitted evidence about the state of the stock of bluefin tuna. 12 Australia and New Zealand appended to their written pleadings statements by scientific experts, some of whom were members of the teams for the 12

ITLOS Pleadings, Minutes of Public Sittings and Documents, Vol. 4, Southern Bluefin Tuna, Provisional Measures. The Pleadings are also posted on the Web site of the Tribunal.

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hearings in the case. Japan did the same and their scientific experts, including non-Japanese experts, were also present in Hamburg for the hearings. In addition, Japan’s written Statement in Response included as Annex 1 a Panel Statement by four independent scientific experts who had been appointed by the CCSBT. During the hearing, Australia and New Zealand called an expert witness from the UK. Following consultations between the parties and the President, the expert was examined on the voir dire 13 by counsel for Japan (questions such as when and how the witness had been approached by Australia), then examined-in-chief by Counsel for Australia and then cross-examined by counsel for Japan. In practice, it proved difficult to separate the question of the independence of the witness from the question of his competence/expertise in regard to the bluefin tuna stock. Since applications for provisional measures are urgent proceedings, the parties were given specific periods of time for the presentation of their evidence and arguments, including time spent questioning the expert witness whether on substance or voir dire. In other words, a difficult scientific issue had to be considered by non-expert judges under time pressure. I recall that at the time I was interested in hearing what the expert witness had to say on the scientific aspects of the case, in particular the state of the stock of bluefin tuna, in both examination-in-chief and under crossexamination. I would have been equally interested in hearing similarly from any expert witness called by Japan, had that course been chosen. An expert witness can give the gist of the situation or assessment and can be challenged by counsel for the other side almost immediately. An expert can also be questioned by the judges. The opinion of an expert who is 13

This is a motion to cross-examine an expert witness during opposing counsel’s direct examination to establish the credibility of the witness before the witness gives evidence. In modern practice, it is used mainly in US jurisdictions (Japan’s legal team included lawyers from Washington, DC, who conducted the voir dire).

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independent of the parties is likely to carry special weight. This applies to both written and oral statements by independent witnesses. An independent expert who is present in court may also be in a position to comment on the written scientific evidence submitted by the parties. In substance, Australia and New Zealand argued that Japan’s actions “resulted in a threat to the stock” (para 72 of the Tribunal’s Order), but Japan countered that “the scientific evidence available shows that the implementation of the experimental fishing programme will cause no further threat” to it (para 73). In response to a question from the Tribunal, the parties indicated that “commercial fishing…is expected to continue throughout the remainder of 1999 and beyond” (para 75), seemingly in the normal way. The Tribunal found that, although it could not “assess the scientific evidence presented by the parties, it finds that measures should be taken …to avert further deterioration of the southern bluefin tuna stock” (para 80). Accordingly, the Tribunal prescribed catch limits for all three parties, as well as other measures. This may have been thought by some to have been too proactive. However, in prescribing catch limits, the Tribunal followed the precedent of the ICJ’s Order indicating provisional measures in the Fisheries Jurisdiction case (UK v. Iceland), 14 where catch limits were imposed on the applicant. The Land Reclamation case arose from a long-term programme of land reclamation undertaken by Singapore in and around the Straits of Johore. Malaysia was concerned about certain planned and actual reclamation works on inter alia environmental grounds, fearing that the works would adversely affect its own coasts and fishing interests in the area. Malaysia applied to the Tribunal for provisional measures under

14

ICJ Reports 1972, p. 12. The measures were respected by the applicant; they were continued by a second Order in 1973: ICJ Reports 1973, p. 302.

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article 290(5). During the oral proceedings, Malaysia introduced evidence about the hydrology of the Straits of Johore. 15 Two expert witnesses were called, one a Professor of Geomorphology at a University in Malaysia and the other a Professor of Water Management at a British University. The latter was examined, cross-examined and re-examined in the usual way. The former, on the other hand, began by addressing the Tribunal as a member of the Malaysian team and then made the solemn declaration as a technical expert in accordance with the Tribunal’s Rule 79(b). She was not examined by Counsel for Malaysia but was cross-examined by Counsel for Singapore. This rather unusual procedure was agreed in advance during consultations between the President of the Tribunal and the Agents and Counsel of the parties. Singapore presented its position on the scientific and technical issues by means of a presentation made as an advocate by a member of the Ministry of National Development that included many visual images displayed on large screens in the courtroom. 16 I recall finding the presentations of the expert witnesses illuminating, as were the images displayed on the screens. However, the change in role from acting as an advocate to giving evidence as a technical expert during the same sitting left me with something of a blurred impression overall. In its Order, the Tribunal called upon both parties to cooperate and directed Singapore not to conduct its works in a way that would cause serious harm to the environment. Furthermore, the Tribunal responded to suggestions made by the parties by ordering them to establish a group of independent experts with a mandate to conduct a joint study of the effects of the proposed reclamation work and to propose measures to deal with any 15

PV 03/01 of 25 September 2003 (morning), available on the Web site of the Tribunal. 16 PV 03/03 of 26 September 2003 (morning), available on the Web site of the Tribunal.

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adverse effects. The group was duly established and its report, including recommendations for modifications in the proposed works, formed the basis for an agreed settlement of the dispute between the parties. The Settlement Agreement signed by the parties recites the Tribunal’s Order, notes the establishment of the Group of Experts and its decision to appoint an independent firm of experts to conduct detailed studies, and sets out the agreement based on the implementation of the recommendations of the Group of Experts. 17 This experience shows the value of bringing experts from the two sides together and of appointing a single joint expert to produce a joint report on technical or scientific questions. In this latter connection, some approaches to expert scientific evidence recently adopted by a common law jurisdiction may contain elements that are relevant also in regard to international courts and tribunals. The Civil Justice Council for England and Wales has recently adopted a Protocol for the Instruction of Experts to give Evidence in Civil Claims, 18 supplementing the Civil Procedure Rules. Among many other points, the Protocol encourages the two sides to a case involving scientific or technical questions to appoint a single joint expert mandated to produce a single report. Failing that, the courts encourage the two sides’ experts to confer with a view to preparing a joint report: such a report should specify any agreed points, those where different views are held and those where further enquiry is needed. The general approach is that an expert should not act as an advocate in the case, but rather should be prepared to give broadly 17

Agreement of 26 April 2005 between Malaysia and Singapore: available on www.pca.org 18 Protocol for the Instruction of Experts to give Evidence in Civil Claims. Available on www.civiljusticecouncil.gov.uk . Section 18 of the Protocol concerns joint reports.

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the same evidence whichever party calls the expert. In simple terms, experts owe a duty to the court to assist it in deciding the case: they should give independent, professional opinions, explaining any qualifications resulting from lack of facts, etc., and they should resist the temptation to give opinions on questions that lie outside their area of expertise.

V. Conclusions 1. In any proceedings, especially ones on the merits, where scientific or technical questions are involved, it may well be a good idea to supplement the written evidence by calling an expert witness. Long written documents may not be entirely clear to the lay reader, including judges. An expert can bring a subject to life, as Dr Meyer did in Icelandic Fisheries case. An expert’s opinion can be tested by cross-examination or by questions from the bench.

2. Where one side calls an expert witness, the other side should consider whether to call a witness of its own, or whether to present its side of the story by other means such as written statements by experts or presentations by counsel with visual aids.

3. Courts and tribunals may prefer to have a single joint expert or to hear from at least two experts, whether as experts sitting with the judges without the right to vote in accordance with article 289 or (the more usual case) as witnesses called by the two sides. The terms of settlement of the Land Reclamation case demonstrate the effectiveness of making joint expert studies of technical questions.

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4. In the interests of clarity, it may be preferable to maintain the distinction between the expert and the advocate.

5. The more independent of the State concerned the expert is seen to be and the higher the worldwide reputation of the expert, the more likely is the expert to impress the judges.

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Forum Shopping for UNCLOS Disputes Relating to Marine Scientific Research Alan Boyle*

Abstract The ability to resort unilaterally to binding dispute settlement remains one of the most important features of the 1982 United Nations Convention on the Law of the Sea. Despite the growing number of cases brought under the Convention, no international tribunal has yet had to resolve a dispute concerning marine scientific research. But the fact that no cases have so far arisen tells us little about disputes on the subject. Others may have been settled without resort to an UNCLOS tribunal—or may have been avoided altogether by virtue of the fact that, with some important exceptions, there is compulsory jurisdiction over disputes concerning marine scientific research. The parties to an UNCLOS dispute have a choice of forum, both in advance of any dispute and ad hoc should one arise, but this requires the agreement of both parties; it is not a choice that can be exercised by the claimant State alone. Both parties will of course seek a forum in which they think they are more likely to win, but unlike private litigation neither can dictate a forum to their own advantage. There will be advantages and disadvantages to whatever choice they make, but the nature of the dispute should be considered carefully before deciding on the most appropriate forum. In this respect the characteristics of disputes concerning marine scientific research are sufficiently special to merit particular attention. That should be the central question: which forum is best suited to handling this type of dispute?

*

Professor of Public International Law, University of Edinburgh; Barrister, Essex Court Chambers, London.

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1. What is Forum Shopping? To a private international lawyer, forum shopping entails choosing the court which is most likely to be favourable to the plaintiff’s claim from among all those which potentially have jurisdiction to decide the case. European law facilitates such choices: transboundary tort claims may, for example, be brought in the place where the defendant is domiciled, or in the place where the harmful activity is located, or in the place where the damage is suffered. 1 In such situations there is nothing either objectionable or inappropriate in forum shopping for the benefit of the plaintiff, although it adds to the expense and uncertainty of litigation. The choice will depend on such issues as the applicable law, the availability of remedies, the location of the defendant’s assets, the cost of the proceedings, the speed with which the court will hear and decide the case, and so on. But whatever the range of options available, the forum shopper in private international law must eventually choose just one jurisdiction in which to proceed: bringing multiple cases on the same basis in different courts will not normally be a viable strategy. Is there any analogy to this kind of forum shopping in international law? Within strict limits, yes. Trade disputes in North and South America may be brought respectively before a NAFTA tribunal or a MERCOSUR tribunal, but they can alternatively be taken to the WTO. Here there is genuine forum shopping and the claimant state has a real either/or choice to make. But there are few other examples of forum shopping of this kind in public international law. More often, the only real choice facing a claimant state concerns how to formulate the dispute—for example as an interstate 1

Council Regulation (EC) No 44/2001 (2000) on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Official Journal L 12 of 16.01.2001), Arts. 2 and 5; Handelskwekerij G.J. Bier v. Mines de Potasse d'Alsace, Case 21/76 [1976] II ECJ Reports 1735.

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environmental case in the ICJ, or as a human rights case before a human rights court, or both. In the current Pulp Mills dispute, involving an alleged risk of transboundary pollution, parallel proceedings against Uruguay have been initiated by Argentina in the ICJ and by Argentine citizens in the InterAmerican Court of Human Rights. 2 The Swordfish Case provides an example where the EC and Chile simultaneously took different aspects of a case to different tribunals, respectively the WTO and the ITLOS. 3 But these are not really examples of forum shopping: they involve multiple cases focused on different aspects of the same dispute and relying on different legal bases. Finding courts with jurisdiction over some aspect of a dispute is what litigators on behalf of states do all the time, but it should not be confused with forum shopping as understood in private international law. The difficulty of translating forum shopping into public international law is well illustrated by the MOX Plant litigation. 4 Here, instead of suing the UK in all of the available courts or tribunals under various applicable treaties, 5 Ireland attempted unsuccessfully to persuade an UNCLOS Annex VII tribunal that it could apply not merely UNCLOS but all the other applicable treaties as well as customary law and EC law. The difficulty with this argument is obvious and was pointed out by the OSPAR Arbitration 6 and the MOX Plant Arbitration: an UNCLOS tribunal may apply other treaties and the rest of international law only insofar as it has jurisdiction under Articles 288 and 293 to do so. Otherwise it is limited to interpretation and application of UNCLOS. Thus MOX Plant is not a case 2

Pulp Mills Case (Argentina v Uruguay)(2006) ICJ Reports--Swordfish Case (Chile-EC) (2000) ITLOS No. 7, Order No.2000/3. 4 MOX Plant Case (Interim Measures) (2001) ITLOS No.10; MOX Plant Arbitration (Ireland - UK)(2003) PCA. 5 In addition to UNCLOS proceedings other possibilities included an OSPAR Convention tribunal, an ESPOO Convention inquiry procedure, and the ICJ under the optional clause in respect of customary law. 6 OSPAR Arbitration (Ireland–UK) (2003) PCA. 3

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about forum shopping for two reasons. First, because of its limited jurisdiction an UNCLOS tribunal can never be a real alternative to other courts with jurisdiction over non-UNCLOS aspects of a case, unless the treaty provisions in question directly parallel each other. Secondly, because in the particular circumstances of the MOX case, involving two EC member States and a treaty to which the EC is a party and in respect of which it has competence, only one court had jurisdiction to hear the UNCLOS case. As the ECJ subsequently made clear in its ruling on the case, Ireland had violated its duty of cooperation under EC law by bringing Annex VII proceedings; Ireland had made the wrong choice of forum. 7 Nevertheless, for cases which do fall properly within the compulsory jurisdiction of an UNCLOS Part XV tribunal, a choice of forum is an integral element of the system established by the Convention for the settlement of disputes, including those which relate to marine scientific research (‘MSR’) carried out under Part XIII of the 1982 Convention. It is that system which this paper seeks to explore.

2. The Function of Dispute Settlement in the 1982 UNCLOS The ability to resort unilaterally to binding dispute settlement remains one of the most important features of the 1982 Convention. 8 Despite the growing number of cases brought under the Convention, no international tribunal has yet had to resolve a dispute concerning marine scientific research and arising out of Part XIII of the Convention. The subject is to that extent purely hypothetical. But the fact that no cases have so far arisen tells us little about disputes on the subject. Others may have 7

Commission of the European Communities v. Ireland, Case-459/03, 30 May 2006. The literature is extensive. See in particular D. Freestone, R. Barnes and D. Ong (Eds), The Law of the Sea: Progress and Prospects (Oxford, 2006), Chapters 2022; N. Klein, Dispute Settlement in the UNCLOS (Cambridge, 2005).

8

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been settled without resort to an UNCLOS tribunal—or may have been avoided altogether by virtue of the fact that, with some important exceptions, there is compulsory jurisdiction over disputes concerning marine scientific research. Why then is compulsory dispute settlement important? First of all, apart from its potential for providing authoritative guidance on the interpretation and application of the convention when actually invoked, the very existence of dispute settlement machinery as an integral part of a treaty regime contributes greatly to the avoidance or negotiated resolution of disputes.

As Sir Ian Sinclair has explained, referring to the dispute

settlement clauses of the 1969 Vienna Convention on the Law of Treaties: What is important—what is indeed crucial—is that there should always be in the background, as a necessary check upon the making of unjustified claims, or upon the denial of justified claims, automatically available procedures for the settlement of disputes. 9 A second important function is to preserve the integrity of the package deal agreed when the 1982 UNCLOS was negotiated. When a treaty represents a complex balance of interests and contains many inherently uncertain or ambiguous articles, as in the 1982 UNCLOS, some form of binding compulsory settlement of disputes becomes the cement which holds the whole structure together and guarantees its continued acceptability and endurance for all parties. This is no less true of disputes arising under Part XIII than it is for other parts of the Convention. Scientific research is one of the high seas freedoms expressly endorsed by the Convention (Art. 87), and all states have the right to carry out marine scientific research in the deep seabed area and in the water column beyond

9

I. Sinclair, The Vienna Convention on the Law of Treaties, (2nd ed., Manchester, 1984), 235.

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the EEZ (Arts. 256 & 257), but these rights are not entirely unrestricted. High seas freedoms must be exercised with ‘due regard’ for the interests of other states. Marine scientific research activities must be carried out in accordance with Part XIII, or if they take place on the deep seabed they must be in conformity with Part XI. Disputes may arise on any of these matters. Moreover, within the EEZ or on the continental shelf, the Convention neither endorses complete and unrestricted freedom of scientific research nor does it prohibit it altogether. Instead, a carefully negotiated balance of interests has been created by Part XIII. Within these zones coastal States have both a right to regulate marine scientific research and to require that their prior consent is obtained before it takes place, while other states have a legitimate expectation that, with certain important exceptions, such consent will in ‘normal’ circumstances be given (Art. 246). Without compulsory dispute settlement it is hard to see how expectations of this kind could be maintained effectively against the creeping jurisdiction of expansively minded states.

3. What is a Dispute Concerning Marine Scientific Research? Article 264 creates a specific regime of dispute settlement for marine scientific research. It provides that: Disputes concerning the interpretation or application of the provisions of this Convention with regard to marine scientific research shall be settled in accordance with Part XV, sections 2 and 3. The importance of sections 2 and 3 of Part XV is that they remove certain categories of marine scientific research disputes from the general rule of binding compulsory jurisdiction. Notice that Article 264 is not limited to disputes concerning Part XIII but applies to all disputes relating to marine

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scientific research under any provision of the Convention, including for example Part VII on the high seas. 10 On the other hand it obviously does not apply to disputes concerning non-marine scientific research. Thus, it is of some importance to know what constitutes ‘marine scientific research,’ a term which the convention does not define. That question is addressed in detail in J. Ashley Roach’s chapter of this book, 11 but some examples will illustrate the main points. Research undertaken at sea but focused, for example, on atmospheric monitoring or the hole in the ozone layer will not be ‘marine scientific research.’ Nor, similarly, will research which has a military focus. There is uncertainty about the treatment of hydrographic research, and there are a number of other unsettled questions. It does not follow that disputes concerning non-marine research are not subject to compulsory dispute settlement, only that they will not be subject to the Article 264 regime. Part XIII also draws a distinction between pure and applied research for reasons that we consider below. An important question which may arise is whether the applicant state's characterisation of the dispute as one concerning marine scientific research is decisive, or whether the forum before which the dispute is brought can make its own characterisation. In the Saiga case the ITLOS held by a majority that the arrest of an oil tanker supplying bunker fuel to fishing vessels in the exclusive economic zone of Guinea could arguably be characterised as a fishing dispute for the purpose of jurisdiction to order

10

However, insofar as a dispute concerning marine scientific research falls within the definition of “activities in the Area”, it will be subject to the compulsory jurisdiction of the Seabed Disputes Chamber of the ITLOS (Art. 187), and is excluded from Article 264. 11 See also P.W. Birnie, “Law of the Sea and Ocean Resources: Implications for Marine Scientific Research” (1995) 10 Int.J.Marine & Coastal L 229; R. Churchill and A.V. Lowe, The Law of the Sea (3rd ed., Manchester, 1999), Ch.16.

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prompt release of the vessel under Article 73 of the Convention. 12 It did so in spite of the fact that Guinea had made the arrest not for a violation of its fisheries law but of its customs laws. On a subsequent application for provisional measures the tribunal again rejected Guinea's characterisation of the case, this time as an EEZ fisheries dispute excluded from compulsory jurisdiction by virtue of Articles 297(3) and 298(1)(b), and held instead that for the purpose of jurisdiction to prescribe provisional measures the case appeared prima facie to fall within compulsory jurisdiction under Article 297(1). 13 What does seem clear from the evidence of both Saiga cases is that characterisation of the issues in dispute will be decided by the court or tribunal hearing the case, rather than by the parties to the dispute. This conclusion applies equally to the question whether a dispute is one relating to marine scientific research.

4. Dispute Settlement Under Part XV of the Convention The regime of dispute settlement contained in Part XV of the Convention has four main elements. First, it is residual, in the sense that the parties to a dispute have an obligation to exchange views before resorting to compulsory procedures (Art. 283), and they may then agree ad hoc on some other peaceful means of settlement (Art. 280-281). The Convention provides expressly (Art. 284) that the parties may by agreement resort to non-binding conciliation instead of other Part XV procedures. Moreover, any multilateral or bilateral agreement which provides for unilateral resort to an alternative procedure with a binding outcome will exclude Part XV procedures (Art. 282). The jurisdiction of the Seabed Disputes Chamber under Part XI is also residual

12 13

The M/V Saiga (St.Vincent and the Grenadines v. Guinea)(1997) ITLOS No.1. The M/V Saiga No.2 (1998) ITLOS No.2.

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in the same sense (Art. 285). These articles of the convention have so far proved to be the main obstacle to litigation commenced in accordance with Part XV. Their relevance to any discussion of forum shopping is that where they apply the parties have already selected a forum, and there will remain no room for any further shopping around. The clearest example of the residual character of Part XV is the MOX Plant Case. 14 The Annex VII arbitral tribunal convened for the purpose of hearing the merits of that case concluded that it should not do so pending a decision of the ECJ on the question whether that court had jurisdiction over the matters in dispute between the parties. Since the ECJ has now found that it does have jurisdiction, 15 it seems inevitable that the arbitral tribunal will have to confirm that under Article 282 this ruling deprives it of jurisdiction over most if not all of the original case. Similarly, on the basis that Article 281 applied, the arbitral tribunal in the Southern Bluefin Tuna Case 16 held that it had no jurisdiction where the parties had agreed that disputes should be settled in accordance with the Bluefin Tuna Convention, even though that agreement did not provide for compulsory jurisdiction and did not expressly exclude subsequent resort to UNCLOS Part XV procedures if the parties failed to settle the dispute. This is an admittedly controversial decision which has been widely and rightly criticised for its idiosyncratic application of Article 281 to the facts of the case, 17 but the general principle is clearly correct: if the parties have agreed 14

N.4 above. See R. Churchill and J. Scott, The MOX Plant Litigation: The First Half Life (2004) 53 ICLQ 643. 15 N.7 above. 16 Southern Bluefin Tuna Arbitration (2000) 39 ILM 1359. 17 See D.A. Colson and P. Hoyle, “Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 LOSC” (2003) 34 Ocean Dev & IL 59; C. Romano, “The Southern Bluefin Tuna Dispute” (2001) 32 Ocean Dev & IL 313; B.H. Oxman, “Complementary Agreements and Compulsory Jurisdiction” (2001) 95 AJIL 277.

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to go elsewhere and not to invoke Part XV procedures, they then lose the option of resorting unilaterally to UNCLOS Part XV thereafter. The doubtful aspect of the case is whether the Bluefin Tuna Convention should have been interpreted as excluding further procedures within the terms of Article 281. Secondly, jurisdiction under Part XV is compulsory, in the sense that any party to a dispute may invoke it unilaterally (Art. 286). There are exceptions to this principle, however, particularly with respect to EEZ/continental shelf disputes (Art. 297), territorial boundaries and sovereignty over territory (Art. 298). The effect of these exceptions is that in practice jurisdiction over significant categories of potential disputes is not compulsory. I have referred to this phenomenon elsewhere as ‘salami slicing’ in order to draw attention to the complex questions of characterisation that can arise when determining whether or not a dispute, or some elements of it, fall outside the scope of Part XV. 18 Take maritime boundary disputes, for example. Maritime boundary disputes are in principle subject to compulsory binding settlement, even where they also involve disputed sovereignty over islands or other land territory. However, Article 298 allows states to make a declaration opting out of one or more of the four compulsory procedures with respect to disputes which concern delimitation of the territorial sea, EEZ, or continental shelf, or which involve historic bays or titles. Where this right to opt out is exercised, an obligation arises to submit the dispute to non-binding conciliation unless it necessarily involves disputed sovereignty over islands or land territory, when no compulsory process of any kind is required.

18

A.E. Boyle, “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction” (1997) 46 ICLQ 37.

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Now suppose that we have a research ship undertaking marine scientific research in continental shelf waters near Atlantis, a pinnacle of rock claimed by Gormenghast and Ruritania. If the ship is British, and is arrested by either Gormenghast or Ruritania, we will simply have a dispute about whether the ship is engaged in high seas research or continental shelf or EEZ research. The entitlement of rocks such as Atlantis to an appurtenant shelf or EEZ may be an issue, and the interpretation and application of Part XIII will be an issue, but the competing territorial claims of Ruritania or Gormenghast to sovereignty over Atlantis need not be, and it would serve no purpose for the UK to try to make them an issue. There would appear to be compulsory jurisdiction in this case: it remains a dispute about marine scientific research. Then suppose that the ship is Ruritanian, and is arrested at sea by Gormenghast, resulting in UNCLOS proceedings initiated by Ruritania. Here we inevitably have a territorial sovereignty dispute. If the Atlantis rock belongs to Ruritania then Gormenghast has no right to arrest a Ruritanian vessel for carrying out unauthorised research in the vicinity of Atlantis. Ruritania cannot easily rely on the rock’s probable non-entitlement to an EEZ or a shelf if that would contradict its own territorial claim, and it cannot let Gormenghast’s implied territorial claim succeed by default. It has to argue that the ship was within Ruritanian waters when arrested by Gormenghast. This is no longer simply a dispute about marine scientific research in the EEZ or continental shelf, because it necessarily involves disputed sovereignty over territory and sovereign rights over adjacent maritime areas. A court or tribunal could not easily avoid those questions. But if Gormenghast has made the appropriate declaration under Article 298 the dispute as presented would appear no longer subject to compulsory binding settlement under Part XV.

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In both these hypothetical cases it may be possible to formulate a claim with sufficient care to avoid the predicted outcome, or it might also be possible to persuade a tribunal to take a view different from the one I have suggested. As we saw earlier, it is for the tribunal hearing the case to decide on the characterisation of the dispute. It is not my intention here to offer categorical solutions to difficult cases. But these are difficult cases, and they show that compulsory jurisdiction is neither universally available under the Convention nor is it always easy to establish. In these situations, if there is no compulsory jurisdiction then forum shopping is only possible if the parties can first agree whether to settle the dispute at all. On those issues

where

disputes

have

been

most

numerous—fisheries

and

boundaries—the fragmentation resulting from salami-slicing the issues in dispute leaves a largely empty shell which can be filled only if the parties agree on submission of the dispute to whatever forum they choose. This does not mean that there will be no compulsory jurisdiction cases, but only that we should not exaggerate the significance of compulsory jurisdiction in the settlement of UNCLOS disputes. It is not a universal panacea. Thirdly, where Part XV applies, the outcome will normally be a binding decision with which the parties to the dispute must comply (Art. 296). The exceptions are where the only compulsory procedure is conciliation in accordance with Annex V. The conciliators may make proposals to the parties with a view to reaching an amicable settlement, and their report will record their conclusions on matters of law or fact and any recommendations they think appropriate, but it is not binding on the parties. The parties thus remain free to settle matters on their own terms, or not at all. Apart from maritime boundaries, the other significant category of cases for which conciliation is the only compulsory procedure are certain types of EEZ dispute involving fisheries or marine scientific research. This is what

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differentiates the Article 264 regime for MSR disputes from disputes relating to other parts of the Convention. The essential point is that under Article 297(2)(a) a coastal State is not obliged to accept binding settlement of any dispute arising out of the exercise of its rights under Articles 246 and 253 to regulate MSR within the EEZ or continental shelf or to grant, withhold, suspend, or terminate consent to such research. This wording suggests that such disputes are not necessarily taken outside binding settlement under Part XV, only that the coastal State cannot be forced into the Part XV cafeteria. If the coastal State does not agree to binding settlement, then the only obligatory forum in such cases is Annex V conciliation, subject to the proviso that a conciliation commission cannot call in question the withholding of consent under Article 246(5) for research involving inter alia exploration for or exploitation of natural resources, continental shelf drilling, artificial islands, or the introduction of harmful substances into the marine environment (Art. 297(2)(b)). Churchill and Lowe helpfully label this category ‘applied research,’ 19 because it relates directly to the exploitation of natural resources, although the Convention itself does not use that term. But ‘pure research,’ defined by Article 246(3) as research carried out ‘exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind,’ is not covered by this exclusion. The refusal of permission to conduct pure research in the EEZ or on the continental shelf can therefore be challenged in and questioned by a conciliation commission or by any other tribunal to which the matter is referred by agreement. Moreover, beyond 200 miles a refusal of consent to applied research can also be questioned unless it relates to an area designated for coastal state exploration or exploitation activities (Arts. 19

The Law of the Sea, 405-6.

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246(6) & 297(2)(b)). Insofar as any of these cases fall outside the normal Part XV cafeteria system no forum shopping is possible unless the coastal state consents. Finally, the fourth feature of Part XV compulsory binding dispute settlement is the so-called ‘cafeteria’ system whereby each party may chose the dispute settlement option it prefers from four possibilities: the ICJ, the ITLOS, arbitration, and special arbitration (Art. 287). During the UNCLOS III negotiations disagreements on the most acceptable and appropriate dispute settlement process were such that no single forum could be given general compulsory jurisdiction. The Soviet bloc continued to oppose any form of judicial settlement but would accept arbitration. Many developing states, and a few Western ones, such as France, also would not accept the ICJ for this purpose, but some would accept a differently constituted specialist tribunal for the law of the sea, which eventually became the ITLOS. The opposition to the ICJ thus meant that it could not be the only or even the primary forum for settlement of law of the sea disputes. Other states, while not opposed in principle to any particular procedure, did not believe that the widely differing range and character of disputes likely to arise under the Convention could all be accommodated satisfactorily in only one mode of settlement. The solution, embodied in the so-called ‘Montreux formula,’ was to opt for flexibility to choose one or more of the four different procedures for compulsory settlement referred to above. The simplest way of summarising the cafeteria system is to say that arbitration is compulsory unless the parties to a dispute have consented in advance (by a declaration), or ad hoc, to have it settled by one of the other three fora. Only a relatively small number of states have made declarations choosing a preferred forum for the

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purposes of Part XV. 20 In consequence, the compulsory forum for most states will be Annex VII arbitration, as in the MOX Plant and Southern Bluefin Tuna Cases. But once litigation is initiated states parties to a dispute remain free to agree on an alternative forum, as Chile and the European Community did when they transferred the Swordfish Case from arbitration to an ad hoc chamber of the ITLOS for reasons of economy. 21 It follows that we have to distinguish three different types of forum selection. In the first, where there is no compulsory binding settlement, it is only if the parties can agree to settle the dispute that they need to decide where to take it. At this point they have available to them the whole range of options listed in Article 33 of the UN Charter. In the second situation, the parties have chosen to operate outside compulsory binding dispute settlement under Part XV. Here too they will have available the same Article 33 options. In the third case, the parties remain within Part XV and the options available are restricted to those listed in Article 287—the socalled cafeteria. For the remainder of this paper I will confine myself to forum shopping within the Part XV cafeteria system. Can we describe the UNCLOS cafeteria system as a form of forum shopping? Not in the sense used by private international lawyers. The claimant state does not choose the forum: the forum is determined by agreement of both parties to the dispute. If no declaration indicating the preferred forum has been made, or if the parties to a dispute have made contradictory choices, arbitration becomes the residual compulsory procedure, unless the parties otherwise agree. But the parties do have some choice: first they must decide whether to make an Article 287 declaration at 20

L. Sohn, “Settlement of Law of the Sea Disputes” (1995) 10 Int. J. Marine and Coastal L. 205. 21 Swordfish Case (Chile/EC) ITLOS No. 7, Order No.2000/3 (2000). The case remains suspended as of August 2006.

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all and if so which forum they prefer. This is a purely unilateral choice, made independently of other states, but it will be effective only in relation to other states that make the same choice of forum. Nothing prevents a state from accepting more than one compulsory forum, or making different choices for different categories of dispute, including marine scientific research, but this will only work if other states follow suit. Secondly, when a dispute does arise, the parties to it may again make a choice of forum, regardless of whether or not they have previously opted by declaration or by default for one or other of the four options. But this is a bilateral choice: only by agreement of both parties can a dispute be transferred from, say, arbitration to the ITLOS. Only in these limited senses can we talk meaningfully about forum shopping under UNCLOS. The important question then is what choice to make.

5. Choosing a Forum What factors should be considered when making a declaration under Article 287, or when litigation arises? I would suggest that the following are the most relevant, although there could be others, and those with longer experience of international litigation may have different views. Firstly, scientific expertise. Disputes about marine scientific research, like disputes about fishing or the environment, are more likely than most to involve some consideration of scientific questions and require an input of scientific expertise in some form. Judges of international courts have an observable reluctance to engage deeply with scientific issues, perhaps understandably, or perhaps because it has not so far been necessary to do so. How to handle such issues is nevertheless not a question that can be ignored. There are at least three options: use expert witnesses in support

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of each party’s case, or appoint experts to sit with the tribunal, or take the case to special arbitration under Annex VIII of the Convention. The use of expert evidence is common. It featured heavily in the Southern Bluefin Tuna Cases, in the MOX Plant Cases, in the Pulp Mills Case, and in the Gabcickovo-Nagymaros Case. 22 It is also a feature of maritime boundary cases. The problem is that both sides will deploy their own experts, each will challenge the competence or quality of the other’s evidence, 23 and the court will have to decide which to believe, as experts rarely agree. There are ways of mitigating this problem. In the Trail Smelter Arbitration 24 and the Land Reclamation Case 25 disputes were resolved by international tribunals on the basis of research undertaken by independent experts agreed by the parties. In Corfu Channel, 26 the ICJ appointed naval experts to assist it. Article 289 of the Convention goes slightly further insofar as it permits any UNCLOS Part XV tribunal in an appropriate case to sit with two or more scientific or technical experts selected in consultation with the parties. This so far unused provision has two advantages: it may insulate the experts from the parties, while giving them greater exposure to the problems the tribunal may face when assessing the evidence. The precedents exist, the practice is still rare. A more radical alternative is to opt for special arbitration under Annex VIII of the Convention. Special arbitration is the only UNLOS Part XV procedure tailored to particular categories of disputes—specifically those concerned with fisheries, the marine environment, navigation, and

22

(Hungary v Slovakia)(1997) ICJ Reports 7. See for example the oral proceedings before the ITLOS in Southern Bluefin Tuna (Australia and New Zealand v Japan)(Provisional Measures) (1999) ITLOS Nos. 3&4. 24 Trail Smelter Arbitration (1939) 33 AJIL 182 & (1941) 35 AJIL 684. 25 Land Reclamation Arbitration (Malaysia v Singapore)(2005) PCA. 26 Corfu Channel Case (UK v Albania)(1949) ICJ Reports 1. 23

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marine scientific research. Special arbitration under Annex VIII differs from Annex VII arbitration in the constitution of the tribunal, in the type of dispute for which it is employed and in what it can be asked to do. Special arbitrators are appointed from lists held by the relevant international organisations, including the International Oceanographic Commission for disputes concerning marine scientific research. They must have competence in the legal, technical or scientific aspects of their field of expertise. Special arbitrations will normally result in binding awards, but it is open to parties to request the tribunal to carry out an inquiry, establish facts in dispute, and make recommendations, instead of a decision. The tribunal's findings of fact will then be conclusive, unless the parties determine otherwise, but its recommendations, like those of conciliators, will not in this case be binding (Annex VIII, Art. 5). Whether used to adjudicate on the merits, or as a factfinder, special arbitration may well be a very relevant option in disputes concerned with marine scientific research. It avoids lawyers, lets experts in the same field decide on technical or scientific questions, and would probably do the job faster than any court. Secondly, the tribunal. Who will decide the case? Opting for either the ICJ or the ITLOS entails opting for the judges who currently sit on those courts. The former is slightly smaller, and has a bare majority of judges from developed states, including all five permanent members of the UNSC. The latter has 21 judges, a bare majority from developing states. No-one has yet demonstrated that the composition of either court makes any difference to the likely outcome of a case. On the contrary, such empirical evidence as there is suggests that the quality of the advocacy may be more significant than the geographic or national origins of the judges. But if the full bench is unattractive, there is some room for flexibility insofar as both courts have

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special chambers for particular categories of disputes, 27 and the parties may also select ad hoc chambers. No states have ever selected a special chamber of the ITLOS or of the ICJ, possibly because of their novelty or potential unpredictability, or possibly because there is some inherent tension between a specialist tribunal and a balanced tribunal. Choosing an ad hoc chamber has much the same advantages as arbitration: it allows the parties to select a more homogeneous bench, 28 particularly when the parties to the dispute are from the same region. Ad hoc chambers have sat in various ICJ cases and an ad hoc chamber of the ITLOS was appointed to hear the Swordfish Case. Nevertheless, most states appear to prefer the full bench of the ICJ or of the ITLOS; chambers remain an exception. If a smaller bench is preferred, then arbitration has proved to be the more desirable alternative, giving states unfettered freedom to choose the arbitrators. UNCLOS arbitrators have a record of finding that they lack jurisdiction to decide the merits, but a total of two cases is hardly much of a sample. At most it may suggest a greater willingness to dismiss weak cases at an earlier stage than would be possible if the same cases had come before the ICJ or the ITLOS. Thirdly, the procedure. The procedures of the ICJ and the ITLOS are well established and reflect those of an essentially common law, adversarial system of justice done in public. Written pleadings are submitted, oral arguments are made and rebutted, expert evidence and witnesses are led and cross-examined. This is fine for serious legal arguments, but it seems a cumbersome and overblown way of handling a dispute in which consent to carry out research in the EEZ has been refused, 27

The ITLOS has special chambers for fisheries, marine environment and summary procedure. The ICJ has special chambers for environmental disputes and summary procedure. 28 1982 UNCLOS, Annex VI, Article 15(2) provides for the composition of an ad hoc chamber to be determined by the Tribunal with the approval of the parties.

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for example. One of the advantages of conciliation, arbitration or special arbitration is that the parties have greater freedom to determine the procedure of the tribunal, and to keep it simple. They should use it. It may well be the case that the fact finding or inquiry function envisaged by Article 5 of Annex VIII of the Convention would be particularly appropriate for some MSR disputes, unless there are serious legal issues to be decided. Certainly, the utility of a more inquisitorial procedure should not be ignored when deciding on the most appropriate forum. Formal jousting between legal champions in open court—very much the legal equivalent of bullfighting or football—is not necessarily the best way to settle every UNCLOS dispute. Nor is it the cheapest. Full-scale litigation is expensive, although small wars still cost rather more.

6. Disputes Part XIII Does Not Cater For (a) Disputes involving research undertaken by international organisations. The regime for MSR set out in Part XIII is not limited to states. Article 238 asserts inter alia that ‘competent international organisations have the right to conduct marine scientific research’ and other provisions are similarly formulated. A question for which the convention provides no clear answer is what happens when an organisation such as the IOC or FAO finds itself in a dispute with a state regarding MSR? Unlike Part XI disputes, in respect of which the ISBA and seabed contractors have standing before the Seabed Disputes Chamber, compulsory dispute settlement under Part XV is available to entities other than states only ‘as specifically provided for’ in the Convention (Art. 291). No provision of the Convention specifically provides for international organisations to initiate or to be sued in Part XV proceedings, 29 although Article 265 clearly envisages 29

Except those to which Annex XI applies—i.e., the European Community

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participation of international organisations in Part XV disputes, and Article 297(2) could arguably be interpreted to that effect. A dispute involving an international organisation could also be brought to the ITLOS or arbitration by agreement of both parties, but that is not compulsory dispute settlement and it provides no protection where agreement is not reached. One possible solution is for member states collectively to act on behalf of the organisation, a tactic the EU would have adopted some years ago when the possibility of litigation in the ICJ under the ICAO convention arose. Alternatively, the flag state of any ship undertaking the research may be willing to act, but that cannot be guaranteed. There appears to be a lacuna in the Convention at this point. (b) Prompt release of scientific research vessels. Fishing vessels and ships detained for violation of international rules and standards for protection of the marine environment are entitled to prompt release on payment of a bond, and the Article 292 procedure confers power on the ITLOS for that purpose. Unfortunately, marine scientific research vessels have no comparable right to prompt release for any alleged violation of Part XIII, and the ITLOS is not a forum available to them for this purpose. This seems another obvious lacuna in what is in many ways a far from adequate regime for MSR. (c) Interim measures. Pending settlement of an MSR dispute, Article 265 requires states or international organisations not to authorise research without the express consent of the coastal State concerned. This is not a surprising provision, but disputes can take a long time to settle, particularly if they are not within the compulsory jurisdiction of a tribunal. Those MSR disputes which fall outside the Part XV cafeteria may thus remain stuck in limbo indefinitely.

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7. Conclusions So long as we are clear about what we mean, we can talk about Part XV of the 1982 Convention in terms of forum shopping. In many cases the parties to a dispute do have a choice of forum, both in advance of any dispute and ad hoc should one arise, but this requires the agreement of both parties; it is not a choice that can be exercised by the claimant state alone. Both parties will of course seek a forum in which they think they are more likely to win, but unlike private litigation neither can dictate a forum to their own advantage. There will be advantages and disadvantages to whatever choice they make, but the nature of the dispute should be considered carefully before deciding on the most appropriate forum. In this respect the characteristics of disputes concerning marine scientific research are sufficiently special to merit particular attention. That should be the central question: which forum is best suited to handling this type of dispute. The luxury of choosing a forum for dispute settlement is not available in all cases, as we have seen. Moreover, there are situations where there may be no compulsory forum at all, since UNCLOS does not provide a comprehensive guarantee of access to dispute settlement. But as we all know that is part of the price to be paid for a consensus package deal which in some cases rather brutally ‘balances’ competing interests in an interlocking whole. It is a tribute to something that all of this remains so far hypothetical in the context of Part XIII.

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Defining Scientific Research: Marine Data Collection Captain J. Ashley Roach, JAGC, USN (Ret.) 1 Abstract In the context of this panel on marine science and law, why is there a need to try to define “scientific research”? One answer is suggested by the theme of this conference, “Law, Science and Ocean Management”. What is done in the interest of gaining knowledge of the oceans is—supposedly—governed by the law, and thus the question, what is the relevant law? Another answer, at a more specific level of detail, is posed by the question whether all means and methods of, and purposes for, gathering information about the oceans is governed by a single set of rules of law, or whether there are separate rules of law depending on the means, methods and purposes for these activities? These questions are timely because some assert that all research in the marine environment is marine scientific research (MSR) regulated by Part XIII of the Law of the Sea Convention. This author disagrees. He believes that the law of the sea gives coastal States regulatory authority over some but by no means all forms of data collection in the marine environment; the flag State has exclusive regulatory authority over other such activity at sea. Put another way, what the activity is factually determines the legal regime governing the activity—whose permission is required to conduct and report on the activity. Thus, the thesis of this paper is that there is no single set of rules of law that governs the collection of information about the oceans. Rather, the applicable rules 1

Office of the Legal Adviser (L/OES), U.S. Department of State. The author’s PowerPoint presentation can be viewed on the accompanying CD. The author has been a member of the U.S. delegation to the UNESCO/IOC Advisory Body of Experts on the Law of the Sea (ABE-LOS) since its first meeting in 2001. ABELOS continues to grapple with the issues raised in this paper. See http://ioc3.unesco.org/abelos/. The author would like to thank Dr. Stephen Pietrowicz, Mrs. Margaret Hayes and Ms. Elizabeth Tirpak for their very constructive suggestions. Dr. Pietrowicz and Ms. Tirpak were particularly helpful in clarifying the section on operational oceanography. Any errors remain the responsibility of the author.

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of law depend on the means, methods, locations, and purposes for the collection of that information. For the analysis that follows I have found it useful to use the generic term “marine data collection”, a term without legal content, as the umbrella under which to consider the various activities for which the law of the sea does provide varying regimes depending on the maritime zone involved. Under “marine data collection” I list the following four categories, with seven subcategories: x

Marine scientific research (MSR)

x

Surveys

x

x

o

Hydrographic surveys

o

Military surveys

Operational oceanography o

Ocean state estimation

o

Weather forecasting

o

Climate prediction

Exploration and exploitation 2 of o

Natural resources

o

Underwater cultural heritage (shipwrecks).

The relevant maritime zones where these activities take place are the territorial sea, contiguous zone, exclusive economic zone (EEZ), continental shelf, deep seabed beyond the limits of national jurisdiction (the Area), straits used for international navigation, and archipelagic sea lanes. This paper examines what is involved in each of these activities, reviews the applicable legal regimes, and demonstrates that neither surveys, 2

The term “exploitation” is used in the sense of resource development and management.

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operational oceanography, or exploration and exploitation are marine scientific research regulated by Part XIII of the Law of the Sea Convention; 3 rather they are subject to separate legal regimes.

Definitions and Distinctions

Even though none of these four categories and seven subcategories is defined in the law of the sea, including the Law of the Sea Convention, it is necessary to understand what each factually entails if we are to appreciate the legal regime applicable to each. The most heavily regulated is the first category, marine scientific research (MSR). The Law of the Sea Convention devotes a whole part, Part XIII, containing 28 articles, to the subject of MSR. Although not defined in the Convention, marine scientific research is the general term most often used to describe those activities undertaken in the ocean and coastal waters to expand scientific knowledge of the marine environment and its processes. 4

In this paper, the term “marine scientific research”

3

The resolution of advice and consent, approved by the Senate Foreign Relations Committee in unanimously recommending United States accession to the Law of the Sea Convention, includes the following understanding: (5) The United States understands that “marine scientific research” does not include, inter alia,(A) prospecting and exploration of natural resources; (B) hydrographic surveys; (C) military activities, including military surveys; (D) environmental monitoring and assessment pursuant to section 4 of Part XII; or (E) activities related to submerged wrecks or objects of an archaeological and historic nature.

Congressional Record, March 11, 2004, at S2712; Senate Committee on Foreign Relations, United Nations Convention on the Law of the Sea, Executive Report 108-10, at 19 (2004). 4 Compare LOS Convention articles 243 (“scientists … studying the essence of phenomena and processes occurring in the marine environment and the interrelations between them”) and 246(3) (“to increase scientific knowledge of the

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applies only to that form of marine data collection regulated by Part XIII of the Law of the Sea Convention. For the purposes of this analysis, there are two forms of surveys, hydrographic surveys and military surveys: Hydrographic

surveys

are

activities

undertaken

to

obtain

information for the making of navigational charts and for the safety of navigation. Hydrographic surveys include the determination of the depth of water, the configuration and nature of the natural bottom, the direction and force of currents, heights and times of tides and water stages, and hazards to navigation. This information is used for the production of nautical charts and similar products to support the safety of navigation, such as Sailing Directions, Light Lists, and Tide Manuals for both civil and military use. 5 Military surveys involve the collection of marine data for military— not scientific—purposes. The data collected may include oceanographic, hydrographic,

marine

geological/geophysical,

chemical,

acoustic,

biological, and related data. The data collected may be in classified or unclassified form. The data is not normally available to the public or the scientific community unless it is unclassified and was collected on the high seas. My third category of marine data collection is operational oceanography. Operational oceanography is the routine collection of ocean observations in all maritime zones, such as temperature, pressure, current, salinity, and wind.

It may be conducted in the oceans, at the air-sea

interface, and in the atmosphere. This data is used for monitoring and marine environment for the benefit of all mankind”). Accord, Alfred H.A. Soons, Marine Scientific Research and the Law of the Sea 124 (1982). 5 Cf. Definition 46, in International Hydrographic Bureau, A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea - 1982, Special Pub. No. 51, Appendix 1, at Appendix 1-16 (4th ed., 2006), on line at http://www.iho.shom.fr/publicat/free/files/S-51_Ed4-EN.pdf.

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forecasting of weather (meteorology), climate prediction, and ocean state estimation (e.g., surface currents and waves). The data is transmitted from sensor to shore in near real time and is made available to the public in near real time. The components of operational oceanography are described in some detail below. The fourth category of marine data collection is exploration and exploitation of natural resources and underwater cultural heritage. Exploration and exploitation of natural resources involves the searching for and removal of living or non-living natural resources found in the oceans or beneath the seabed. The term “natural resources” has four separate meanings in the law of the sea, depending on the maritime zone. The natural resources governed by the EEZ regime are the living and nonliving natural resources (not further expressly defined) located within the EEZ. 6 The natural resources governed by the continental shelf regime are the mineral and other non-living resources of the seabed and subsoil, together with the living organisms belonging to sedentary species. 7 The natural resources of the deep seabed beyond the limits of national jurisdiction (the Area) are all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules; 8 this definition does not include living marine resources.

The natural

resources of the high seas regime are referred to as “the living resources of the high seas” and include fish and marine mammals. 9

6

LOS Convention, article 56(1)(a). LOS Convention, article 77(4). Sedentary species are those organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant contact with the seabed or subsoil. Id. 8 LOS Convention, article 133. When recovered from the Area, these resources are referred to in the Convention as “minerals”. 9 LOS Convention, Part VII, section 2, articles 116-120. 7

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Exploration and exploitation of underwater cultural heritage involves the search for, recording of, and removal of items of cultural heritage, such as shipwrecks. These items are, of course, not natural but are man-made resources. As will become evident from the following discussion of what is the legal regime applicable to each category and subcategory, and what is involved in each, neither form of survey or exploration and exploitation nor operational oceanography is MSR.

Legal Regimes

Marine Scientific Research (MSR) Marine scientific research is regulated by Part XIII of the Law of the Sea Convention. MSR may not be conducted in the territorial sea, 10 the exclusive economic zone, 11 or on the continental shelf 12 without the

10

LOS Convention, article 245, requires the express consent of and under the conditions set by the coastal State for the conduct of MSR in its territorial sea. 11 LOS Convention, articles 246, 248, 252-253 set the conditions for the conduct of MSR in the EEZ. In particular six months advance request is required and the results of the research cannot be distributed publicly until the results of the research are compiled and shared with the coastal State. Further, the coastal State may, in its discretion, withhold consent to the conduct of a MSR project of another State in its EEZ or on its continental shelf if the project, inter alia, is of direct significance for the exploration or exploitation of its natural resources, whether living or non-living, within its EEZ. LOS Convention, article 246(5)(a). The United States does not require its permission to conduct MSR in the U.S. EEZ unless it involves marine mammal research (16 U.S. Code § 1374(c)), fisheries research involving commercial gear (16 U.S. Code § 1857(4)), the taking of commercial quantities of fish (16 U.S. Code § 1857(2)), or exploration of the U.S. Outer Continental Shelf (43 U.S. Code § 1340). For further information see http://www.state.gov/g/oes/ocns/rvc (MSR authorizations); http://www.state.gov/g/oes/ocns.rvc/3504.htm (authorizations to conduct MSR in foreign EEZs); http://www.state.gov/g/oes/ocns/rvc/3503.htm (authorization to conduct MSR in US EEZ); and imbedded links. The requirements of other countries may be viewed at

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permission of the coastal State. MSR may not be conducted while in transit passage through a strait used for international navigation without the prior authorization of the States bordering the strait. 13 Similarly, MSR may not be conducted while in archipelagic sea lanes passage without the prior authorization of the archipelagic State. 14 On the other hand, all States have the right to conduct MSR in the Area in conformity with Part XIII, articles 143 and 155, and the Annex to the Implementing Agreement, sections 1(5)(h) and 2(1)(b). 15 The conduct of MSR in the high seas (i.e., the water column seaward of the outer limit of the EEZ, and the water column above the continental shelf beyond 200 nm) is a high seas freedom guaranteed by articles 78(1), 87(1)(f) and 257 of the LOS Convention. 16

Surveys Like the other five forms of marine data collection, hydrographic surveys are not mentioned in Part XIII of the LOS Convention. However, the Convention places some restrictions on the conduct of hydrographic surveys in close-in waters. Prior authorization is required from the coastal http://www.state.gov/www/global/oes/oceans/notices.html (notices to research vessel operators) and http://www/state/ogv/g/oes/ocns/rvc/24243.htm (country specific requirements). 12 LOS Convention, article 252 sets similar conditions for the conduct of MSR on the continental shelf. 13 LOS Convention, article 40. 14 LOS Convention, article 54 incorporating article 40. 15 LOS Convention, article 256. 16 See further, UN Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Marine Scientific Research—A Guide to the Implementation of the Relevant Provision of the United Nations Convention on the Law of the Sea, UN Sales No. E.91.V.3 (1991); R.R. Churchill and A.V. Lowe, The Law of the Sea, chapter 16 (3rd ed. 1999); Soons, supra note 4; Montserrat Gorina-Ysern, An International Regime for Marine Scientific Research (2003); and Florian H. Th. Wegelin, Marine Scientific Research: The Operation and Status of Research Vessels and Other Platforms in International Law (2005).

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State to conduct hydrographic surveys in its territorial sea, 17 from the States bordering straits used for international navigation to conduct surveys while in transit passage through the straits, 18 and from the archipelagic State to conduct surveys while in archipelagic sea lanes passage. 19 Hydrographic surveys are not mentioned in the parts of the LOS Convention governing the EEZ, continental shelf, high seas or the Area. Therefore the conduct of hydrographic surveys in these areas is a high seas freedom associated with the operation of ships and aircraft. 20 Hydrographic surveys are not MSR. 21 Military surveys, per se, are not mentioned at all in the LOS Convention. Because they are “surveys”, the collection of marine data for military purposes in the territorial sea, 22 and on the continental shelf when they involve exploration or exploitation of natural resources of the continental shelf, 23 requires coastal State permission.

Seaward of the

territorial sea, the conduct of military surveys is a high seas freedom, as

17

LOS Convention, articles 19(2)(j) and 21(1)(g). The same rule applies to ships in innocent passage in archipelagic waters. LOS Convention, article 52(1). 18 LOS Convention, article 40. 19 LOS Convention, article 54 incorporating article 40. 20 LOS Convention, articles 58(1) and 87. 21 Accord Bernard H. Oxman, “The Regime of Warships Under the United Nations Convention on the Law of the Sea,” 24 Va. J. Int’l L. 809, at 846 (1984); Soons, supra note 4, at 157. 22 LOS Convention, article 19(2)(j). The sovereignty of a coastal State extends, beyond its land territory and internal waters, inter alia, to the adjacent territorial sea as well as to its bed and subsoil. LOS Convention, article 2. The sovereignty of an archipelagic State extends, beyond its land territory and internal waters, inter alia, to its archipelagic waters and the adjacent territorial sea. LOS Convention, articles 48 and 49(1). 23 LOS Convention, article 77(2), which provides that the coastal State’s rights are exclusive and no one may undertake exploration or exploitation of its natural resources without the express consent of the coastal State.

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they too are associated with the operation of ships and aircraft. 24 Military surveys are not MSR. 25

Operational Oceanography Likewise, operational oceanography is also not mentioned in the LOS Convention. It should be recalled that the Third UN Conference on the Law of the Sea decided that the collection of marine meteorological data is not marine scientific research regulated by Part XIII of UNCLOS. 26 Clearly analogous to the collection of marine meteorological data is the routine collection of ocean observations that are distributed freely and openly and are used for monitoring and forecasting of ocean state, weather (meteorology), and climate prediction. The various operational oceanography programs and data collection instruments are next described to facilitate a better understanding of why they are, for the most part, conducted in the exercise of the high seas freedoms of navigation and overflight. Nevertheless, some coastal States remain concerned that some or all of this data collected within their EEZs may be of direct significance for the exploration and exploitation of natural

24

See George V. Galdorisi and Alan G. Kaufman, “Military Activities in the Exclusive Economic Zone,” 32 Cal. W. Int’l L.J. 253, at 294-295 (2002). A different view of military activities in the EEZ is set out in a proposed voluntary “Guidelines for Navigation and Overflight in the Exclusive Economic Zone” prepared by a group of “senior officials and analysts primarily from countries of the Asia-Pacific region participating in the personal capacities,” sponsored by the Japanese Ocean Policy Research Foundation, available at http://www.sof.or.jp/topics/2005_e/pdf/20051205_e.pdf. 25 Oxman, supra note 21, at 847; Senate Committee on Foreign Relations, United Nations Convention on the Law of the Sea, Executive Report 108-10, at 10 (2004). 26 See attachment 2.

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resources, whether living or non-living, within their EEZs 27 and thus wish to have some say as to the collection and use of that data.

Operational Oceanography Programs Operational oceanographic programs have the same characteristics: sustained, systematic, reliable, and robust mission activities with an institutional commitment to deliver appropriate, public, cost-effective products and services. One example of an operational oceanographic program is the TAO/TRITON array of approximately 70 moorings in the Tropical Pacific and Indian Oceans, telemetering oceanographic and meteorological data to shore in real-time. Development of this array was motivated by the 19821983 El Niño event, the strongest of the century up to that time, which was neither predicted nor detected until nearly at its peak. The event highlighted the need for real-time data from the tropical Pacific for both monitoring, prediction, and improved understanding of El Niño.

The operationally

supported measurements of the TAO/TRITON array consist of winds, sea surface temperature, relative humidity, rainfall, air temperature, salinity, current velocity, and subsurface temperature at 10 depths in the upper 500 meters.

Additional moorings and/or enhancements to the basic

measurement suite are often incorporated to the operational array in support of research studies to understand specific physical processes not well measured by the existing network. 28 Another example is the global array of approximately 1,250 surface drifting buoys. Surface drifting buoys were originally developed to observe surface currents of the world’s oceans. The most important observations

27 28

Cf. LOS Convention, articles 56(1)(a) and 246(5)(a). See note 11 above. See http://www.pmel.noaa.gov/tao/.

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collected today are (1) sea level pressure observations and (2) sea surface temperature observations collected over vast stretches of the globe where no other sources for these data exist. Data is transmitted in near real-time for incorporation into numerical weather prediction models. 29 The global array of over 2,800 lagrangian floats (Argo) is providing over 7,000 vertical profiles of temperature and salinity a month throughout the world’s oceans. When the complete array of 3,000 floats is operational in 2007, approximately 9,000 profiles a month will be made available to operational

centers

world-wide

in

real-time

via

the

Global

Telecommunications System (GTS). Data from the Argo array is free and open to anyone either via the GTS or via two Global Data Assembly Centers (GDACs) in France and the United States. Argo has revolutionized the ability to observe the oceans providing, for the first time, global, synoptic pictures of the thermodynamic structure of the open ocean and some understanding of circulation; together with remotely-sensed data, model ocean circulation and ocean climate; and allowed scientists to dramatically improve their understanding of the coupled ocean-atmosphere system for weather and climate prediction. 30 The world’s oceans exhibit wide variability on both spatial and temporal scales. While designated by basins (e.g., Atlantic, Pacific, Indian, Southern), boundaries used to delineate them are geographical and somewhat artificial as the oceans interact on global as well as regional scales. For example, changes in overturning circulations (North Atlantic, Southern Ocean) eventually will impact all of the ocean basins thereby manifesting changes regionally. Like the atmosphere, the oceans do not 29

See http://www.aoml.noaa.gov/phod/dac/gdp.html See the Argo homepage, http://www.argo.ucsd.edu, as http://www.argo.net and the Argo Information http://www.argo.jcommops.org. 30

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well as Center,

J. Ashley Roach

recognize geopolitical boundaries. Similarly, the oceans’ interactions with the atmosphere are often manifested through changes in weather and storm patterns are global processes, reflected regionally. Understanding of the global ocean provides the context for understanding and predicting regional and coastal variability.

The key to understanding is observations,

observations of the oceans globally, regionally and locally. The operational ocean observing system will allow nations to: x

Monitor, understand and predict weather and climate;

x

Describe and forecast the state of the ocean, including living resources;

x

Improve management of marine and coastal ecosystems and resources;

x

Mitigate damage from natural hazards and pollution;

x

Protect life and property on coasts and at sea; and

x

Enable scientific research. 31 The Intergovernmental Oceanographic Commission (IOC) of

UNESCO and the World Meteorological Organization jointly coordinate implementation of operational oceanographic programs through the Joint WMO-IOC Technical Commission for Oceanography and Marine Meteorology (JCOMM), as the scope and effort of global oceanographic observations exceeds the budget and mandate of the individual intergovernmental organizations and individual Member Countries. JCOMM coordinates, regulates and manages a fully integrated marine observing, data management and services system that uses state-ofthe-art technologies and capabilities, is responsive to the evolving needs of

31

These six bullets are what GOOS is designed to do. See http://www.iocgoos.org/content/view/12/26/. “Enable” means observe from which hypotheses are developed and tested, not conduct scientific research.

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all users of marine data and products, and includes an outreach program to enhance the national capacity of all maritime countries. 32 JCOMM encourages real-time or near real-time reporting of data, and the full and open exchange of data through oceanographic data centers. Such collaboration occurs because observational data contribute to the prediction of meteorological conditions and other natural events. 33 The global scale of observations necessary to establish accurate predictions of natural events is necessarily beyond the capability of any coastal nation. Thus international cooperation is essential if individual nations are to benefit from the data collected. The Global Ocean Observation System (GOOS) is a permanent global system for observations, modeling, and analysis of marine and ocean variables to support operational ocean services worldwide. GOOS provides accurate descriptions of the present state of the oceans, including its living resources; continuous forecasts of the future conditions of the sea for as far ahead as possible; and the basis for forecasts of climate change. 34 GOOS forms the ocean component of the Global Climate Observing System (GCOS) 35 and the marine coastal component of the Global Terrestrial Observing System (GTOS). 36 A fundamental principle of GOOS is that all data acquired by the operational systems are freely and openly available in real time to any potential user through distribution via the Global

32

See http://www.ioc.unesco.org/jcomm/. See http://ioc.unesco.org/goos/. 34 See http://www.ioc-goos.org/. 35 See http://www.wmo.ch/web/gcos/gcoshome.html. The U.S. Global Climate Observing System Program is described in the August 2001 U.S. Detailed National Report to the Conference of the Parties to the United Nations Framework Convention on Climate Change, available at http://www.eis.noaa.gov/gcos/soc_long.pdf . 36 See http://www.fao.org/gtos/. 33

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Telecommunication System (GTS) 37 and/or Data Distribution Centers (DACs) such as the two DACs supporting the global array of profiling floats known as Argo. 38 One operational component of GOOS is the Global Sea Level Observing System (GLOSS). GLOSS is an international component of GOOS, 39 a network of high quality global and regional sea level stations for application to climate, oceanographic, and understanding coastal sea level processes. The main component is a “Global Core Network” (GCN) of 290 sea level stations around the world for long-term climate change and oceanographic sea level monitoring. Applications of such data include prediction and detection of storm surge inundation and tsunami. JCOMM also coordinates contributions to the Data Buoy Cooperation Panel (DBCP). Principal objectives of the DBCP are: 1. review and analysis of requirements for buoy data; 2. co-ordination and facilitation of deployment programs to meet requirements; 3. initiation and support of action groups; 4. improving the quantity and quality of buoy data distributed onto the Global Telecommunication System (GTS); 5. information exchange and technology development; and 6. liaise with relevant international and national bodies and programs. 40 The primary goal of the Ship-of-Opportunity Program (SOOP) is to fulfill the requirements for collection of upper ocean data which have been established by GOOS and GCOS, and which can be met at present by 37

See http://www.wmo.ch/web/www/TEM/gts.html. See http://www.argo.ucsd.edu/ and http://w3.jcommops.org/cgi-bin/WebObjects/Argo. 39 See http://www.jcommweb.net. 40 See http://www.dbcp.noaa.gov/dbcp/index.html. 38

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measurements from ships of opportunity (SOO). SOOP is establishing itself as an operational program and is therefore participating in JCOMM and particularly in its Ship Observations Team. 41

Data management is

taken care of through the Global Temperature Salinity Profile Program. The SOOP is directed primarily towards the continued operational maintenance and co-ordination of the XBT ship of opportunity network. As described in greater detail below, an XBT is an expendable temperature and depth profiling system that collects upper ocean thermal data in support of weather and climate prediction and ocean state estimation systems that are communicated in real time to oceanographic and meteorological services primarily via the GTS under JCOMM. Other types of measurements are being made (e.g., conductivity, current profiles, pCO2, chlorophyll concentration). This network in itself supports many other operational needs (such as for fisheries, shipping and defense) through the provision of upper ocean data for data assimilation in models and for various other ocean analysis schemes.

One of the

continuing challenges is to optimally combine upper ocean thermal data collected by XBTs from Ships of Opportunity with data collected from other sources such as the TAO array, Argo and satellites. However, it is considered most important to have the SOOP focused on supporting climate prediction in order to ensure the continued operation of the present network. 42

41

The SOT includes the implementation panels for SOOP, VOS, and a program with the acronym ASAPP which launches radiosondes (weather balloons) from ships. 42 See http://www.brest.ird.fr/soopip/ and the JCOMMOPS website www.infremer.fr/ird/soopip/. See also the “Best Guide and Principles Manual for the Ships of Opportunity Program (SOOP) and Expendable Bathythermograph (XBT) Operations,” by Steven Cook and Alexander Sy, March 2001, at www.brest.ird.fr/soopip/doc/manuals/best_guide/SOOP_best_guide.pdf.

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Data Collection Platforms and Instruments 43 Data about the lower atmosphere and sea surface is collected from ships, balloons, visual observations, aircraft and satellites, while data about the water column is obtained from satellites, moored buoys, drifting buoys, profiling floats and expendable bathythermographs (XBTs). 44 The U.S. National Oceanic and Atmospheric Administration (NOAA) is involved in the collection of marine data through programs involving five different types of data collection instruments or platforms: global

drifters,

Voluntary

Observing

Ships

(VOS),

expendable

bathythermographs (XBTs), high density expendable bathythermographs (XBTs), and Argo profiling floats.

Global Drifters NOAA, at its Atlantic Oceanographic and Meteorological Laboratory (AOML) operates a global Drifting Buoy Center that annually deploys, via Voluntary Observing Ships (VOS), research vessels and U.S. Navy aircraft, over 400 Drifters 45 in all three ocean basins. These drifters are tracked daily via the ARGOS satellite system through which their positions and sea surface temperatures (and sometimes other parameters) are processed and inserted on to the Global Telecommunications System (GTS) for global distribution. 46

Approximately 630,000 sea surface

temperatures are collected annually via this program. Additionally, the Center performs the added function of a Data Acquisition Center (DAC) for

43

The information in this section is taken from http://www.aoml.noaa.gov/goos/goos-operational.php. 44 See http://www.aoml.noaa.gov/goos/goos-operational.php. 45 For a detailed description of these drifters, see http://www.aoml.noaa.gov/phod/dac/gdp_drifter.html. 46 See http://www.aoml.noaa.gov/phod/dac/gdp.html for the location of these drifters.

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the Global Drifter Program (GDP). When the deployed Drifters are verified as operational they are reported to the DAC.

This effort insures that

research quality Drifter data is available from other organizations and countries programs. The Global Drifter Program is a participating member of the IOC - WMO Data Buoy Co-operation Panel (DBCP) and, as such, represents NOAA in this international forum.

Voluntary Observing Ships (VOS) Meteorological information has been gathered by ships at sea for over 150 years. The International Convention for the Safety of Life at Sea, 1929, and its successor adopted in 1974 and subsequently amended, have encouraged the collection of meteorological data by ships at sea. 47 The data is collected by Voluntary Observing Ships (VOS) coordinated by the WMO.

The data gathered pertains to the atmosphere above the sea

(temperature, dew point, cloud, weather, visibility and pressure) and to the surface of the sea (temperature, waves, currents and ice). The data is collected for the preparation of forecasts and warnings to help route ships and avoid severe weather conditions, for the preparation of forecasts and warnings for offshore industries, for global models of the future state of the atmosphere, to monitor the state of the oceans, for climatological data banks serving many purposes, and to build long-term records to monitor changes in the climate of the earth. 48 The IMO has noted the critical importance of

47

The current provision appears in regulation 5, Meteorological services and warnings, of chapter V of SOLAS, 1974, as amended, the text of which appears in attachment 3. 48 See http://www.bom.gov.au/jcomm/vos/vos.html and http://www.vos.noaa.gov/.

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VOS meteorological reports to the provision of meteorological services to the mariner and encouraged increased participation in the scheme. 49 NOAA GOOS Center operates a global fleet of about 400 domestic and foreign commercial vessels. The GOOS global fleet mostly represents a subset of the larger National Weather Service VOS fleet consisting of over 1500 vessels.

These vessels voluntarily collect sea surface

meteorological, sub-surface expendable bathythermograph, shipboard thermosalinograph or atmospheric observations.

They deploy drifting

buoys and highly instrumented Argo and Argo-type floats and sometimes tow continuous plankton recorders. The GOOS global VOS fleet is the mechanism used to collect observations and deploy instrumentation that transmit, in real-time, data to U.S. National Centers such as the National Center for Environmental Prediction. 50

In any given year this network

provides the following approximate number of observations: x

630,000 Sea Surface Temperature Observations from Drifting Buoys

x

110,000 Meteorological Observations

x

30,000 Thermosalinograph Observations

x

15,000 Expendable Bathythermograph Observations

Expendable Bathythermographs (XBTs)

While many nations deploy XBTs locally or regionally, NOAA/AOML

operates

a

global

49

XBT

program 51

that

utilizes

IMO Circular MSC/Circ.1017, 11 June 2001, Participation in the World Meteorological Organization Voluntary Observing Ships’ Scheme, at http://www.imo.org/home.asp. 50 See http://www.ncep.noaa.gov. 51 See http://www.aoml.noaa.gov/goos/uot/.

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Defining Scientific Research

approximately 70 Voluntary Observing Ships (VOS) to monitor, on a monthly basis, 26 transects in all three ocean basins. Participating vessels utilize a Shipboard Environmental Data Acquisition System (SEAS) hardware/software installation to collect, quality control and transmit in real-time subsurface oceanographic observations (about 15,000 per year) and sea surface meteorological observations (about 110,000 per year). 52 The XBT is an expendable temperature probe that is manually launched from vessels approximately four times per day, along certain scientifically selected shipping lanes. The data transmitted via the wire link from the XBT probe is stored on the SEAS computer where it is processed and formatted for satellite message transmission. The transmitted data is routed to the GOOS Center where it is further quality controlled and then inserted on to the Global Telecommunication System (GTS) for global distribution. The National Centers for Environmental Predication (NCEP) use these data for weather and climate forecasting as well as for seasonal, interannual and decadel climate research. The XBT program is a participating member of the IOC - WMO Ship of Opportunity Program Implementation Panel (SOOPIP) and, as such, represents NOAA in this international forum.

High Density Expendable Bathythermographs (XBTs)

Certain regions of the oceans require more observations than a volunteer ship's crew can adequately supply. Along these routes, scientific crew ride the VOS and sample the ocean with much higher spatial resolution. These high density lines (HDX) resolve ocean features with more detail than the standard low density (LDX) sampling scheme. 53

52 53

See http://seas.amverseas.noaa.gov/seas. See http://www.ncep.noaa.gov/phod/hdenxbt.

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NOAA’s Atlantic Oceanographic and Meteorological Laboratory (AOML) runs five HDX lines with the following three objectives: x

to measure the upper ocean thermal structure in the center of the subtropical gyre in the North Atlantic and the South Atlantic;

x

to investigate the meridional structure at the subtropical gyre and Gulf Stream in the North Atlantic; and

x

to characterize both the mean and the time-dependent upper ocean properties of the tropical portion of the Meridional Overturning Circulation and of the shallow Subtropical Cell in the Tropical Atlantic.

Argo Profiling Floats 54 Argo is to be a global array of 3,000 free-drifting profiling floats that measures the temperature, salinity and velocity of the upper 2000 meters of the ocean. This allows, for the first time, continuous monitoring of the temperature, salinity, and velocity of the upper ocean, with all data being relayed and made publicly available within hours after collection. This program was started in 1999 to meet the challenge posed by the lack of sustained observations of the atmosphere, oceans and land that hindered the development and validation of climate models. There is increasing concern about global change and its regional impacts. Sea level is rising at an accelerating rate of 3 mm/year, Arctic sea ice cover is shrinking and high latitude areas are warming rapidly. Extreme weather events cause loss of life and enormous burdens on the insurance 54

The factual information contained in this section is derived from the Argo home page, http://www.argo.ucsd.edu/. For information on how Argo floats work, see http://www.argo.ucsd.edu/FrHow_Argo_floats.html.

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Defining Scientific Research

industry.

Globally, 8 of the 10 warmest years since 1860, when

instrumental records began, have been in the past decade. These effects are caused by a mixture of long-term climate change and natural variability.

Their impacts are in some cases beneficial

(lengthened growing seasons, opening of Arctic shipping routes) and in others adverse (increased coastal flooding, severe droughts, more extreme and frequent heat waves and weather events, such as severe tropical cyclones). Understanding (and eventually predicting) changes in both the atmosphere and ocean are needed to guide international actions, to optimize governments’ policies, and to shape industrial strategies. To make those predictions Argo was created to provide the information to develop improved models of climate and the entire earth system (including socioeconomic factors). Argo deployments began in 2000; by the end of 2005 the array was over 75% complete. A total of 2801 Argo floats were in place on March 11, 2007. The Argo array should approach 3000 floats in 2007, and can be maintained at that level as long as national commitments provide about 800 floats per year.

The need for global Argo observations will continue

indefinitely into the future, though the technologies and design of the array will evolve as better instruments are built, models are improved, and more is learned about ocean variability. The

final

array

of

3000

floats

will

provide

100,000

temperature/salinity profiles and velocity measurements per year distributed over the global oceans at an average 3-degree spacing. Floats will cycle to 2000m depth every 10 days, with 4-5 year lifetimes for individual instruments. All Argo data are publicly available in near real-time via the

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J. Ashley Roach

GTS and Global Data Assembly Centers (GDACs) in Brest, France 55 and Monterey, California 56 after an automated quality control (QC), and in scientifically quality controlled form, delayed mode data, via the GDACs within six months of collection. NOAA/AOML’s Physical Oceanography Division provides the data management and real time quality control of profiling float data from the global Argo program. 57 In view of the United States, operational oceanography is not MSR. 58 This author submits that the large-scale programs of oceanographic data collection, described above, that operate independently from the users of the data distinguish operational oceanography from MSR.

The

IOC/ABE-LOS is considering the implications for the conduct of this form of marine data collection in the EEZ. 59

Exploration and Exploitation The Law of the Sea Convention contains separate regimes for exploration and exploitation of natural resources and of underwater cultural heritage. As noted above, the term “natural resources” has four separate meanings in the law of the sea, depending on the maritime zone.

55

http://www.coriolis.eu.org/. http://www.usgodae.org/argo/argo.html. 57 For addition information on Argo, see http://www.argo.net, http://www.aoml.noaa.gov/phod/ARGO/HomePage, and the Argo Information Center http://www.argo.jcpmmops.org/. 58 Senate Committee on Foreign Relations, United Nations Convention on the Law of the Sea, Executive Report 108-10, at 10 (2004) (“there are other activities, such as operational oceanography, that are also not considered marine scientific research”). 59 See the report of the sixth meeting of ABE-LOS through the link at http://ioc3.unesco.org/abelos/, at pages 5-6 and Annex III. 56

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Defining Scientific Research

Part V of the LOS Convention regulates exploration for and exploitation of the living and non-living natural resources located within the EEZ separately from the conduct of MSR within the EEZ. 60 Part VI of the Convention governs exploration for and exploitation of the mineral and other non-living resources of the seabed and subsoil, i.e., the continental shelf, together with living organisms belonging to sedentary species. 61 Part VI does not address MSR at all. 62

Thus it follows that, even though

exploration and exploitation in both maritime zones are subject to exclusive coastal State control, those activities are not MSR. 63 Part XIII of the Convention and its Implementing Agreement regulate exploration for and exploitation of all solid, liquid or gaseous mineral resources in situ in the deep seabed beyond the limits of national jurisdiction at or beneath the seabed, including polymetallic nodules. Exploration and exploitation in the Area are subject to regulation by the International Seabed Authority. Article 256 provides that MSR in the Area is to be conducted in conformity with Part XI, particularly article 143. Hence, exploration and exploitation of mineral resources in the Area is not MSR. Part VII, Section 2, governs the conservation and management of the living resources of the high seas.

60

Compare LOS Convention articles 56(1)(a) and 56(1)(b)(ii). LOS Convention, article 77. 62 MSR in the EEZ and on the continental shelf is regulated by Part XIII, article 246 of the Convention. 63 Because they directly implicate exploration or exploitation of the natural resources of the continental shelf, article 246(5) permits a coastal State to withhold its consent to the conduct of a MSR project on its continental shelf, inter alia, if (a) it is of direct significance for the exploration and exploitation of natural resources, whether living or non-living, (b) involves drilling into the continental shelf, or (c) involves the construction, operation or use of artificial islands, installations and structures. 61

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J. Ashley Roach

Exploration for and exploitation of all forms of natural resources is not MSR regulated by Part XIII. On the other hand, underwater cultural heritage (UCH), principally shipwrecks, are not natural resources as that term is variously defined in the LOS Convention.

UCH is addressed in only two articles of the LOS

Convention, article 303 with regard to the contiguous zone, and article 149 with regard to archaeological and historical objects found in the Area. UNESCO has sought to provide a regulatory scheme for UCH found at sea. 64 However, the UNESCO Convention sought to provide coastal States with authority to regulate search for and recovery of UCH located seaward of a declared contiguous zone, contrary to the allocation of rights and duties in the LOS Convention. 65 Exploration for UCH is not MSR.

Summary

This paper has demonstrated that not all methods of collection of data about the oceans is marine scientific research regulated by Part XIII of the Law of the Sea Convention. While the lack of agreed definitions of the various methods for marine data collection has resulted in differences of views on the legal regimes governing them, this paper seeks to provide clarification and further understanding.

Attachment 1 summarizes the

regulatory authority for each of these activities in the various maritime zones.

64

Convention on the Protection of Underwater Cultural Heritage, Paris, 2001, 41 ILM 40 (2002); http://unesdoc.unesco.org/images/0012/001232/123278e.pdf. 65 See Robert Blumberg, “International Protection of Underwater Cultural Heritage,” in Center for Oceans Law and Policy, RECENT DEVELOPMENTS IN THE LAW OF THE SEA AND CHINA 491 (Myron H. Nordquist, John Norton Moore, and Kuen-chen Fu, (eds.,) Martinus Nijhoff, 2006).

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Defining Scientific Research

In particular, the paper has sought to demonstrate that the collection of data by operational oceanographic instruments and programs is not MSR because: x

the data is immediately available to all nations for their benefit;

x

the sum of the systems is greater than its parts and therefore nations must facilitate access and data sharing if each country is to benefit from conclusions that can be drawn from the large scale data sets (both in terms of size and time); and

x

whether or not one agrees that operational oceanography is or is not MSR, Part XIII still encourages countries to collaborate and facilitate access to EEZs for such large-scale initiatives.

Since most coastal States are members of IOC, which sponsors these programs, they should consistently support them in their national policy.

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J. Ashley Roach

ATTACHMENT 1 Regulatory Authority Activity Marine scientific research Hydrographic survey Military survey Operational oceanography Explore/exploit natural resources Explore/exploit UCH

Territo rial sea Coastal State

EEZ/Continental Shelf Coastal State

High Seas Flag State

Coastal State

Flag State

Flag State

The Area Flag State/ ISBA Flag State

Coastal State Flag State/ Coastal State Coastal State

EEZ: Flag State; Shelf: coastal State Flag State

Flag State Flag State

Flag State Flag State

Coastal State

Flag State

ISBA

Strait State/ Archipelagic State

Coastal State

Flag State

Flag State

Flag State

Strait State/ Archipelagic State

ISBA = International Seabed Authority.

566

Straits/ ASL Strait State/ Archipelagic State Strait State/ Archipelagic State Flag State Flag State

Defining Scientific Research

ATTACHMENT 2 Resolution 16 (Cg-VIII) adopted by the World Meteorological Organization at its eighth congress in Geneva in April/May 1979 UN document A/CONF.62/80, 9 August 1979 Official Records of the Third United Nations Conference on the Law of the Sea, Volume XII, page 56 (1980) The Congress, Noting (1) Resolution 2750C(XXV) of the United Nations General Assembly of 17 December 1970, by which the United Nations decided to convene the Third United Nations Conference on the Law of the Sea, (2) The informal composite negotiating text prepared by the Conference, in particular part XIII, entitled “Marine scientific research”, (3) Action taken by the Executive Committee and the SecretaryGeneral to ensure that the meteorological interests are adequately safeguarded during the consideration of relevant articles of the negotiating text, Recalling that activities of the members of the World Meteorological Organization in the oceans fall under the following two major categories: (1) Operational activities such as the collection of meteorological information from voluntary observing ships, buoys, other ocean platforms, aircraft and meteorological satellites, (2) Research activities, both meteorological and oceanographic, such as those carried out during the Global Weather Experiment, Considering (1) That an adequate marine meteorological data coverage from ocean areas, in particular from those areas in the so-called “exclusive economic zone”, is indispensable for the issue of timely and accurate storm warnings for the safety of life at sea and the protection of life and property in coastal and off-shore areas, (2) That the International Convention for the Safety of Life at Sea, of 1960 specifies that the contracting Governments undertake, inter alia, to issue warnings of gales, storms and tropical storms and to arrange for selected ships to take meteorological observations, (3) That members of the World Meteorological Organization have undertaken the responsibility of issuing warnings for the high seas and coastal waters according to internationally agreed procedures, Expresses the hope that the legal provisions specified in the informal composite negotiating text which govern marine scientific research

567

J. Ashley Roach

will not result in restrictions to operational meteorological and related oceanographic observational activities carried out in accordance with international programmes such as World Weather and the integrated Global Ocean Station System; Appeals to members to ensure that their delegations to the United Nations Conference on the Law of the Sea are made aware of the vital need for observational data from sea areas for the timely issue of weather forecasts and storm warnings, Requests the Secretary-General to follow closely the developments in the Conference, in particular by ensuring representation at sessions of the Conference, as appropriate. ***** Extract from the Oral Report of the Chairman of the Third Committee to the Third Committee at its 46th meeting, 20 August 1980 Official Records of the United Nations Third Conference on the Law of the Sea Volume XIV, pages 102-103 (1982) The Chairman, Mr. A. Yankov (Bulgaria) 4. [] announced that he had received from the World Meteorological Organization a letter in which it referred in particular to the work of the Eighth World Meteorological Organization held in Geneva. On that occasion, the organization had expressed its interest in research activities conducted in the oceans and, in particular, in the “exclusive economic zone”. In a resolution which had been adopted by the Congress and had been distributed to the participants in the Conference (A/CONF.62/80), the organization had referred to some of its activities, including the collection of meteorological information from voluntary observing ships, and meteorological and oceanographic observational activities carried out in accordance with international programmes such as the World Weather Watch and Integrated Global Ocean Station System. Now that the Third Committee had completed the negotiation on the substantive questions before it, it was in a position to reply to the Secretary-General of the World Meteorological organization. 5. Since the formulation of draft articles on the legal regime for the conduct of marine scientific research came under his mandate as Chairman of the Third Committee, he was able to share the view of the Eighth Meteorological Congress that adequate marine meteorological data coverage, including that from areas within the exclusive economic zone, was indispensable for timely and accurate storm warnings for the safety of navigation and for the protection of lives and

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Defining Scientific Research

property in coastal and offshore areas. In his opinion, the provisions on marine scientific research would not create any difficulties and obstacles hindering adequate meteorological coverage from ocean areas, including areas within the exclusive economic zone, carried out both within the framework of existing international programmes and by all vessels, since such activities had already been recognized as routine observations and data collecting which were not covered by Part XIII of the negotiating text. Furthermore, they were in the common interest of all countries and had undoubted universal significance. He informed the Committee that he intended to send a letter to the Secretary-General of the World Meteorological Organization along those lines. (Emphasis added.) ***** Extract from the Report of the Chairman of the Third Committee Document A/CONF.62/L.61, 25 August 1980 Official Records of he Third United Nations Conference on the Law of the Sea, Volume XIV, pages 133-134 (1982) 8. At the end of the 46th meeting of the Committee on 20 August, I referred to a letter addressed to me by the Secretary-General of the World Meteorological Organization (A/CONF.62/80) in which was expressed the concern that some provisions on marine scientific research might have direct consequences on operational and research activities of the World Meteorological Organization over the oceans, particularly in areas off the coast of the coastal States, including the exclusive economic zone. The World Meteorological Organization had specifically in mind activities carried out under its Voluntary Observation Ships’ Scheme which is an important element of the World Weather Watch and activities carried out under the projects and programmes of organizations such as the Marine Meteorological Services, the Tropical Cyclone Project and the Integrated Global Ocean Station System. The letter expressed concern that some provisions on marine scientific research might have a restricting effect on those activities of the World Meteorological Organization. I informed the Committee that in my reply to the Secretary-General of the World Meteorological Organization I will state that in my view the pertinent provisions of the second revision of the text on marine scientific research would not create any difficulties or obstacles hindering adequate meteorological coverage from the ocean areas, including areas within the exclusive economic zone since such operational and research activities have already been recognized as routine activities within the terms of reference of the World Meteorological Organization and are of common interest to all countries with an undoubted universal significance. (Emphasis added.) *****

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J. Ashley Roach

Extract from the Official Records of the 134th Plenary Meeting of the Resumed Ninth Session of the Third United Nations Conference on the Law of the Sea, 25 August 1980, Volume XIV, page 15 (1982) The Chairman of the Third Committee, Mr. A. Yankov (Bulgaria) 43. At the end of the 46th meeting of the Committee, he had referred to a letter which he had received from the Secretary-General of the World Meteorological Organization (A/CONF.62/80) expressing concern that some provisions in the negotiating text on marine scientific research might have a restricting effect upon certain operational and research activities of the Organization. He informed the Committee that, in his reply to the SecretaryGeneral of the Organization, he would that in his view the provisions of the second revision of the negotiating text on marine scientific research would not hinder adequate meteorological coverage from ocean areas, including areas within the exclusive economic zone, since such operational and research activities had already been recognized as routine activities within the Organization’s terms of reference and were of common interest to all countries. (Emphasis added.)

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Defining Scientific Research

ATTACHMENT 3 SOLAS REGULATION V/5 (2002) Meteorological services and warnings 1 Contracting Governments undertake to encourage the collection of meteorological data by ships at sea and to arrange for their examination, dissemination and exchange in the manner most suitable for the purpose of aiding navigation. 66 Administrations shall encourage the use of meteorological instruments of a high degree of accuracy, and shall facilitate the checking of such instruments upon request. Arrangements may be made by appropriate national meteorological services for this checking to be undertaken, free of charge to the ship. 2 In particular, Contracting Governments undertake to carry out, in co-operation, the following meteorological arrangements: .1 to warn ships of gales, storms and tropical cyclones by the issue of information in text and, as far as practicable graphic form, using the appropriate shore-based facilities for terrestrial and space radiocommunications services. .2 to issue, at least twice daily, by terrestrial and space radiocommunication services 67 , as appropriate, weather information suitable for shipping containing data, analyses, warnings and forecasts of weather, waves and ice. Such information shall be transmitted in text and, as far as practicable, graphic form including meteorological analysis and prognosis charts transmitted by facsimile or in digital form for reconstitution on board the ship's data processing system. .3 to prepare and issue such publications as may be necessary for the efficient conduct of meteorological work at sea and to arrange, if practicable, for the publication and making available of daily weather charts for the information of departing ships. .4 to arrange for a selection of ships to be equipped with tested marine meteorological instruments (such as a barometer, a barograph, a psychrometer, and suitable apparatus for measuring 66

Refer to the Recommendation on weather routing adopted by the Organization by resolution A.528(13). 67 Refer to regulations IV/7.1.4 and IV/7/1.5.

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J. Ashley Roach

sea temperature) for use in this service, and to take, record and transmit meteorological observations at the main standard times for surface synoptic observations (i.e. at least four times daily, whenever circumstances permit) and to encourage other ships to take, record and transmit observations in a modified form, particularly when in areas where shipping is sparse. .5 to encourage companies to involve as many of their ships as practicable in the making and recording of weather observations; these observations to be transmitted using the ship's terrestrial or space radiocommunications facilities for the benefit of the various national meteorological services. .6 the transmission of these weather observations is free of charge to the ships concerned. .7 when in the vicinity of a tropical cyclone, or of a suspected tropical cyclone, ships should be encouraged to take and transmit their observations at more frequent intervals whenever practicable, bearing in mind navigational preoccupations of ships' officers during storm conditions. .8 to arrange for the reception and transmission of weather messages from and to ships, using the appropriate shore-based facilities for terrestrial and space radiocommunications services. .9 to encourage masters to inform ships in the vicinity and also shore stations whenever they experience a wind speed of 50 knots or more (force 10 on the Beaufort scale). .10 to endeavour to obtain a uniform procedure in regard to the international meteorological services already specified, and as far as practicable, to conform to the technical regulations and recommendations made by the World Meteorological Organization, to which Contracting Governments may refer, for study and advice, any meteorological question which may arise in carrying out the present Convention. 3 The information provided for in this regulation shall be furnished in a form for transmission and be transmitted in the order of priority prescribed by the Radio Regulations. During transmission "to all stations"

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Defining Scientific Research

of meteorological information, forecasts and warnings, all ship stations must conform to the provisions of the Radio Regulations. 4 Forecasts, warnings, synoptic and other meteorological data intended for ships shall be issued and disseminated by the national meteorological service in the best position to serve various coastal and high seas areas, in accordance with mutual arrangements made by Contracting Governments, in particular as defined by the World Meteorological Organization’s System for the Preparation and Dissemination of Meteorological Forecasts and Warnings for the High Seas under the Global Maritime Distress and Safety System (GMDSS).

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Advances in Ocean Knowledge and Skill: Implications for the MSR Regime Aldo Chircop 1

Abstract This paper is a think piece on the relationship between law, science, and technology in the context of marine scientific research (MSR) in the United Nations Convention on the Law of the Sea, 1982 (LOS Convention). Historically, science and technology have been important triggers for legal development, enabling states to advance their political and economic interests in the ocean domain. Since the LOS Convention was adopted, there has been a revolution in marine scientific and supporting technologies, raising questions as to whether the assumptions and intentions of negotiators of Part XIII still hold true. Against this backdrop, this paper enquires whether the MSR regime still provides a viable framework for contemporary marine science and technology used for that purpose. In the first instance, some of the differences in ocean knowledge in the 1970s and today are set out, followed by a discussion of several contemporary MSR technologies. The discussion then focuses on some aspects of Part XIII, namely definitions (or absence thereof) and technological frontiers, in particular satellite remote sensing and vessel based acoustic technology. The paper then considers the question whether change in knowledge and skill have necessitated legal change by examining four potential arguments in support of revisiting Part XIII. First, on the freedom of MSR and the regime of consent, it appears that the freedom is in good shape, and despite reported lack of implementation by states and some inconsistency in state practice, the regime of consent appears to be working well. Second, the possibility of technological obsolescence of Part XIII is there, in 1

Professor of Law, Marine & Environmental Law Institute, Dalhousie University, Halifax, NS, Canada.

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particular as Earth satellite remote sensing, which falls outside the law of the sea, gains further sophistication. Third, there is a danger that the ongoing revolution in science and technology will divide coastal states into haves and have-nots, and that this could be exacerbated by considerations of intellectual property over research data, samples and scientific outputs, a topic not addressed by Part XIII. Fourth, Part XIII does not address environmental research ethics, which has become an issue for certain types of research in the marine and environmental domain. The paper concludes with the view that Part XIII continues to provide a viable framework, despite the change. The issues raised by the four arguments are in great part addressed, or could potentially be addressed by cooperation through international organizations. International organizations active in the law of the sea and marine science have played an important role in continuing the unfinished business of UNCLOS III and by using soft instruments to fill in gaps in MSR law and policy.

Introduction This chapter reflects on the relationship between law, science and technology in the context of marine scientific research (MSR) in the United Nations Convention on the Law of the Sea, 1982 (LOS Convention). 2 John Knauss once said “[I]t is simplistic to say that ocean policy, and therefore the law of the sea is driven by science and technology, but it is worth remembering.” 3 Political, economic and environmental interests and concerns have had much to do with the development of the contemporary law of the sea. However, history shows that behind these interests states

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United Nations Convention on the Law of the Sea (hereafter LOS Convention), Montego Bay, December 10, 1982, UN/Doc. A/CONF.62/122, October 7, 1982. 3 John Knauss, “Panel V Introduction,” in Lewis M. Alexander, Scott Allen and Lynne Carter Hanson, eds., New Developments in Marine Science and Technology: Economic, Legal and Political Aspects of Change, Proceedings of the 22nd Annual Conference of the Law of the Sea Institute, Narragansett, Rhode Island, 12-16 June 1988 (Honolulu: Law of the Sea Institute, 1988), 291-292, at 291.

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have been able to use developments in knowledge and skill in processes of claim and counter-claim and legal development arenas. This is true irrespective of whether legal development has been in the form of lawmaking, law-amendment, codification or customary law development. Miles writes that there has always been a very close connection between patterns of technological advance and global attempts to pursue codification and what is now known as progressive development of the relevant international law.” 4 There are many examples that serve to illustrate this relationship. In the early 17th century, Bynkershoek used the range of coastal guns as a useful outer limit of the territorial sea, eventually known as the cannon shot rule in the customary international law of the sea. 5 The arrival of transoceanic submarine telegraph cables prompted the adoption of a multilateral convention for their protection in 1884. 6 With the advent of the steam engine on board ships and metal hulls, it became necessary to consider the need for international rules on maritime safety and navigation, including collision avoidance, at the First International Maritime Conference in 1889. 7 In 1910, the first international legal rules on collisions were adopted. 8 Later in the 20th century the development of offshore drilling technology was a trigger for the Truman Proclamation on the

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Edward L. Miles, “Preparations for UNCLOS IV?” In Alexander et al., ibid., 491501, at 492. 5 Cornelius Van Bynkershoek, De Dominio Maris, Ralph Van Deman Magoffin trans. (New York: Oxford University Press, 1923). 6 Convention for the Protection of Submarine Telegraph Cables, Paris, 14 March 1884, ATS 1901 No. 1. 7 Edgar Gold, Maritime Transport: The Evolution of International Marine Policy and Shipping Law (Lexington Mass., Lexington Books, 1981), 90-93 and 122-124. 8 Convention for the Unification of Certain Rules Respecting Collisions between Vessels, Brussels, 23 September 1910, U.K.T.S. 1913, No. 4.

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Continental Shelf of 1945 9 and the state practice that followed, in the process establishing a new custom to be codified in the Convention on the Continental Shelf, 1958. 10 Similarly to the way in which offshore technology enabled access to hydrocarbons on the continental shelf, the arrival of onboard freezer technology enabled states to industrialize their fishing activities and move farther offshore, giving rise to distant water fishing fleets and demands by coastal States for exclusive fishery and economic zones, and the eventual regulation of fishing on a multilateral basis. 11 This technological capacity became a major driver for the extension of coastal State jurisdiction through the exclusive economic zone (EEZ). Even a rudimentary scientific understanding of the oceans, accompanied by perception of its potential (thanks to technological development), was responsible in great part for triggering a legal development process. Arvid Pardo’s famous speech to the First Political Committee of the UN General Assembly in 1967 relied heavily on the perception (incorrect as it turned out) that deep seabed mining would make manganese nodules exploitable in a matter of years, and the impact of this perception on subsequent events and throughout the Third United Nations Conference on the Law of the Sea

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The preamble recited: “Whereas its competent experts are of the opinion that such resources underlie many parts of the continental shelf off the coasts of the United States of America, and that with modern technological progress their utilisation is already practicable or will become so at any early date.” Presidential Proclamation No. 2667, 28th September, 1945, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, online: http://www.oceanlaw.net/texts/truman1.htm (accessed on 2 June 2006). 10 Convention on the Continental Shelf, Geneva, 29 April 1958, U.N.T.S. No. 7302, vol. 499, pp. 312-321. 11 R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd ed. (Manchester: Juris Publishing, Manchester University Press, 1999), 279 et seq.

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(UNCLOS III) is undeniable, despite the elusiveness of deep seabed mining technology. 12 Although not as longstanding in terms of triggering legal development as technology, marine scientific research has also influenced international law-making, both in terms of hard and soft law. The LOS Convention rights and related duties of conservation and utilization of living resources in the EEZ are essentially based on basic principles of marine biology. 13 More recently, the Code of Conduct for Responsible Fisheries was adopted by FAO in 1995 as state of the art guidelines based on the best available science and conservation principles at this time. 14 As much as science and technology can be important triggers for policy and law-making, they have also the capacity for unmaking law. Science and technology may empower states through the acquisition of knowledge and skill to be better able to pursue national interests, fuelling state practice which may render a treaty or some of its provisions unstable. Opportunistic state practice, backed by new knowledge and skill, can seal the fate of a technologically obsolete treaty. An example of this is Article 1 of the Convention on the Continental Shelf which defined the continental shelf and for that purpose the coastal State’s sovereign rights of exploration and exploitation over the seabed and subsoil and consequential limits of national jurisdiction in terms of the 200-metre isobath or up to the limits of exploitability. 15 The criterion of exploitability left that legal definition at the mercy of a fast developing offshore mining technology. There should 12

See “Ocean Space, Seabed, Common Heritage of Mankind,” First Statement to the First Committee of the General Assembly, 1 November 1967, in Arvid Pardo, The Common Heritage: Selected Papers on Oceans and World Order 1967-1974 (Malta: Malta University Press, 1975), 1-41, especially at 39. 13 LOS Convention, supra note 1, arts. 61 and 62. 14 Code of Conduct for Responsible Fisheries, 1995, online: http://www.oceanlaw.net/texts/faocode.htm (accessed on 2 June 2006). 15 Continental Shelf Convention, supra note 9, art. 1.

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have been foresight of this, as already in 1958 it was thought that the exploitation of the continental shelf would be feasible in ever deeper waters. 16 Within a few years, the depths of exploitability continued to increase well beyond the 200-metre isobath. The lack of a definite outer limit contributed significantly to creeping national jurisdiction, which in turn led the international community to convene UNCLOS III to define the seaward limits of national jurisdiction over ocean space. 17 Epistemic and technological change work at a different and more dynamic pace than international legal development. It is a challenge for law-making or codification in multilateral arenas to catch-up, tag along or for that matter anticipate the social change produced by science and technology. The consequence is that legal principles and rules in international legislation could become inadequate in responding to changing demands of international society, leaving further legal development to state practice and evolving customary international law. Science and technology play an increasingly fundamental role in the creation of multilateral marine and environmental conventions. Following adoption of an instrument, scientific and technological capacities will continue to evolve beyond the birth of international instruments. The concepts of best scientific evidence and best available technology themselves suggest this. Because of the pace of technological change, some maritime instruments now have in-built mechanisms that enable frequent amendment using a tacit acceptance procedure. 18

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Churchill & Lowe, supra note 10, 147. Most interestingly in the case of the continental shelf, science and technology were heavily used as a basis for a formula to cap the outer limit of the extended continental shelf. LOS Convention, supra note 1, art. 76. 18 E.g., International Convention for the Safety of Life at Sea, 1974, London, 1 November 1974, 1184 U.N.T.S. 2, as amended. The tacit amendment procedure is explained on the IMO website, online: 17

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The LOS Convention also has a simplified amendment procedure, but it has not been used to date. 19 Thus the LOS Convention, which is an instrument negotiated on the basis of the science and technology of 30 years ago, and has now been in force for 12 years, has not benefited from “updating”, other than implementation agreements in relation to Part XI on the international seabed area, which was necessary to attract broader support, and straddling and highly migratory fish stocks (affecting provisions on Parts V and VII of UNCLOS) addressing unfinished business of UNCLOS III. Many of the rights and duties in the LOS Convention were negotiated on the basis of now dated knowledge of the marine environment and ocean use technologies, but their modern enjoyment requires contemporary scientific knowledge and technical capabilities. The need for contemporary knowledge of the marine environment is writ large across major institutions in the LOS Convention. The exploration, rational utilization (today we prefer to restate this as sustainable use) and conservation of living and non-living resources in the EEZ and on the continental shelf require significant knowledge and skill. The protection and preservation of the marine environment from various pollution sources require knowledge of marine ecosystems, sources and pathways of pollution and an ability to assess the state of the marine environment and to combat pollution. The ability to regulate properly in the interests of safety of navigation requires knowledge of the physical oceanography and hydrography of the marine traffic areas concerned and associated risks. It can be appreciated that an alteration of existing http://www.imo.org/Conventions/mainframe.asp?topic_id=148 (accessed on 2 June 2006). 19 LOS Convention, supra note 1, art. 313. Essentially, this procedure enables amendments without the need to convene a diplomatic conference. However, even an objection by one state within a 12-month period is sufficient to reject a proposed amendment.

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understanding and development of new capabilities for the conduct of research can influence the performance of rights and duties, e.g., by providing new opportunities for the exercise of a right or the establishment of new benchmarks for existing duties. Against the backdrop of a revolution in marine science and technology, it is pertinent to enquire whether the MSR regime in Part XIII of the LOS Convention is still able to provide a viable policy and legal framework for contemporary marine science and technology used for that purpose, or whether that revolution has questioned the underlying assumptions and balances of Part XIII, or is pushing the need for further legal development. This chapter attempts a tentative answer to this complex question in a series of steps. Initially, some of the differences in ocean knowledge between the UNCLOS III period and today are set out, followed by a discussion of several key technologies used today in MSR. The discussion then considers the frontier of modern MSR from the perspective of definitions, satellites as a research platform and ship-based acoustics. Arguments that could support the need to revisit Part XIII are discussed in view of answering the question whether change in ocean knowledge and skill has necessitated legal change. Ultimately, for a modern day observer the challenge is to see to what extent the underlying scientific and technological assumptions in the LOS Convention are still valid and/or useful for the more knowledgeable, sophisticated and capable scientific research of today. There is extensive significant literature on the regime of MSR in the Convention and state practice on its regulation in national maritime zones that free the author from the need to provide an in-depth

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survey of what is now a well-studied regime. 20 The emphasis instead is on knowledge and skill as forces of change behind the law.

State of Ocean Knowledge, Then and Now

In preparing the negotiation agenda for UNCLOS III the Seabed Committee worked on the basis of perceptions of problems, scientific knowledge and technological capabilities extant at the end of the 1960s and into the 1970s. The agenda echoed Pardo’s famous speech which drew heavily on the science and technology of the time. 21 UNCLOS III negotiators had the benefit of a few more years of scientific knowledge, but not much more. Negotiators were very conscious of the significance of ocean knowledge and MSR applications for the various rights and duties in the LOS Convention. MSR was thus a central issue in the conference’s

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The seminal work on the subject is Alfred H. A. Soons, Marine Scientific Research and the Law of the Sea (Deventer, Netherlands: Kluwer Law, 1982). Alexander Yankov, Chairperson of the Third Committee, which was tasked with MSR issues at UNCLOS III, wrote “A General Review of the New Convention on the Law of the Sea: Marine Science and its Application,” 4 Ocean Yearbook 150175 (1983). Authoritative collections of papers on the subject are: Alexander et al., eds., supra note 2; E. D. Brown and R. R. Churchill, eds., The UN Convention on the Law of the Sea: Impact and Implementation, Proceedings of the Law of the Sea Institute Nineteenth Annual Conference (Hawaii: Law of the Sea Institute, 1987), Part V: Science, Law and the Sea. More recent works include: Patricia Birnie, “Law of the Sea and Ocean Resources: Implications for Marine Scientific Research,” 10(2) International Journal of Marine and Coastal Law 229-251 (1995); J. Ashley Roach, “Marine Scientific Research and the New Law of the Sea,” 27 Ocean Development and International Law 59-72 (1996); Montserrat Gorina-Ysern, An International Regime for Marine Scientific Research (Ardsley, NY: Transnational Publishers, 2003); Florian H.Th. Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and other Platforms in International Law (Leiden: Nijhoff, 2005). 21 Pardo, supra note 11.

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negotiation agenda. 22 However, relative to what we know today, the understanding UNCLOS III negotiators had of the marine environment was basic. In fairness, several of the marine environmental problems then were either not known or understood, or probably not as acute as they are today. Thus, Part XIII and the various other provisions in the Convention premised on science and technology reflect perceptions of problems and knowledge of the 1960s-70s. In the 1970s there was little or no knowledge of climate change processes, ecosystemic processes, deep sea ecosystems and species such as extremophiles, ecological effects of industrial fishing and methane hydrates. At the time it was thought that light or oxygen are essential for life on earth, and yet today we know that life in deep ocean areas around vents may thrive without them in unique ecosystems. 23 Today this knowledge has spurned on new directions for research and associated conservation concerns. Fifteen years ago it was thought that biodiversity on land was more diverse than at sea, but now we know that the reverse is true. 24 Fisheries science and management were essentially based on the concept of maximum sustainable yield (MSY)(which formed the scientific basis of Article 61(3) of the LOS Convention), 25 and the management models developed tended to be based on single species in a northern environment, a far cry from the multi-species and ecosystem-based thinking

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Myron H. Nordquist, Shabtai Rosenne, and Alexander Yankov, United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. IV (Dordrecht: Nijhoff, 1991) (hereafter Virginia Commentary), 429 23 Barbara Moore, “A U.S. Perspective on Global developments in Marine Science,” in Myron H. Nordquist, John Norton Moore and Kuen-chen Fu, Recent Developments in the Law of the Sea and China (Leiden: Nijhoff, 2006), 293-315, at 314. 24 GESAMP, A Sea of Troubles, Reports and Studies No. 70 (UNEP, 2001), 12. 25 W. E. Ricker, “Computation and Interpretation of Biological Statistics of Fish Populations,” Fisheries Research Board of Canada Bulletin 191 (Ottawa: 2001).

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emerging today. But that was the state of knowledge at the time, even though in the 1970s there was already literature suggesting that the MSY concept was flawed, 26 although it continues to be used today. 27 Today the state of the oceans’ large biological resources is dramatic, compared to the high abundance of, for example tuna and billfish in the 1950s-1960s, when long-lining expanded globally. Myers and Worm have recently reported that over 90% of global predatory fish communities have been rapidly depleted, 28 another far cry from perceptions of abundance of resources in EEZs during UNCLOS III. In the 1970s, pollution was considered the major threat to the marine environment, as in fact reflected in the numerous provisions on this problem in the LOS Convention compared to other threats to the marine environment. This was also reflected in the early work of the United Nations Environment Programme (UNEP) and its initiation of the Regional Seas Programme. Its first programme and what came to be known as the Mediterranean model, and mirrored in other regions, was designed to engineer cooperation among Mediterranean states to address marine pollution. Today pollution is not necessarily the only, or even the major threat to the oceans: “[D]irect physical damage to ecosystems and habitats, and overexploitation of the resources of the sea, have even greater worldwide effects.” 29

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P. Larkin, “An Epitaph for the Concept of Maximum Sustainable Yield,” 106 Transactions of the American Fisheries Society 1-11 (1977). 27 See M. B. Mangel, C. Pomeroy and D.A. Croll, “Requiem for Ricker: Unpacking MSY,” 70(2) Bulletin of Marine Science 763–781 (2002). 28 Ransom A. Myers and Boris Worm, “Rapid Worldwide Depletion of Predatory Fish Communities,” 423 Nature 280-283 (2003). 29 GESAMP, supra note 23, 7.

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The Changed Technological Landscape of MSR: New Opportunities

Over the last 30 years the field of oceanography has changed remarkably because of a widening of the scope of research in response to ocean management needs and a need for a better understanding of problems of planetary concern such as climate change, changing weather patterns, sea level rise and dwindling fisheries. Today we have oceanography which is both research and operational. Traditionally, hypothesis-based research of specific phenomena was accompanied by long-term observations. 30 There was a time when MSR was conducted mostly with observations from land and on ships at sea. Today, much MSR is system-based, meaning that various types of instrumentation, frequently in multiple numbers are used to undertake defined observations and measurements of marine environmental phenomena. Marine technology has contributed significantly to the change because it has greatly extended capacities to conduct MSR without relying only on observations from land and the use of ships and other vessels as research platforms. 31 For instance, it has been said that satellite radar altimetry, which has enabled the measurement of the height of the ocean to a 4-5 centimeter degree of accuracy, has revolutionized physical oceanography. 32 What has resulted is fundamental change in our understanding of the ocean environment and the interfaces between land and sea and the atmosphere and sea. 33 A few examples of changes in marine science and technology will illustrate what is in effect a revolution in our 30

Wegelein, supra note 19, at 20. For a discussion on the relationship between science and technology and the role of technology as a driver of science, see James J. Griffin, “Technology Footnote,” in Alexander et al., supra note 2, 285-288. 32 Online: http://sealevel.jpl.nasa.gov/technology/technology.html (accessed on 2 June 2006). 33 Seelye Martin, An Introduction to Ocean Remote Sensing (Cambridge, UK: Cambridge University Press, 2004), 1-2. 31

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understanding of the oceans and how we go about building that understanding. One of the leading roles in this process of change has been played by satellite technology, which since the launch of the first ocean observing satellite by the United States in the 1970s, has attained a high degree of capability and sophistication in observing and monitoring global oceans and is now shared by several countries. 34 Satellite-based remote sensing is defined as “the use of electromagnetic radiation to acquire information about the ocean, land and atmosphere without being in physical contact with the object, surface or phenomenon under investigation.” 35 It has enabled planetary remote sensing. Martin writes that “the oceanic variables available from satellites include sea surface temperature (SST), the height and directional distribution of ocean swell, wind speed and direction, atmospheric water content and rain rate, the changes in sea surface height associated with ocean tides, currents and planetary waves, concentrations of phytoplankton, sediments, and suspended and dissolved material, and the areal extent and types of polar sea ice.” 36 Phenomena such as algal blooms and river plumes can be tracked. At this time remote sensing can generate sub-surface data on the ocean environment up to shallow depths. Survey of depth-average color is possible. The ability to retrieve data from deeper waters can be expected to develop further. Recently, the Marine Technology Society’s Currents reported that research institutions in the United States and China have developed a method to detect salty submerged eddies at 34

In addition to the US, ocean observing satellite states include Japan and Russian Federation, India, Brazil, Canada, People’s Republic of China, Republic of Korea, Ukraine, Germany, France and UK. With 15 member states, the European Space Agency also manages geosynchronous Meteosat satellites. For information on satellite programs, see NOAA Satellite Information service, online: http://www.nesdis.noaa.gov/satellites.html (accessed on 2 June 2006). 35 Martin, supra note 32, 2-3. 36 Martin, ibid., 2.

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depths of 1,000 metres, using a satellite based multi-sensor technique able to track salinity changes. 37 Biological remote sensing provides ocean colour observations to measure chlorophyll concentrations. Phytoplankton concentrations can also be detected. 38 The relevance of this is that areas of biological productivity can be identified, and the value of this for fisheries utilization, management and conservation can be considerable. At some point, MSR of the marine environment skirts closely with resource exploration. Already in the 1980s it was possible to collect data on the northern extent of anchovy spawning off the California coast. 39 Solanki et al. propose a satellite-based forecast methodology for potential fishing zones. 40 They see a powerful combination for this purpose when satellite-based remote sensing is combined with conventional scientific data collection. Remote sensing helps to provide synoptic views of the ocean and detects mesoscale features, thus making this technology useful for locating fishing areas, especially for pelagic resources. 41 Infrared satellite sea surface temperature (SST) observations are important for multi-year global climate change studies,

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MTS Currents, Vol. 29(3), May/June 2006, 11. Martin, supra note 32, 124-126. 39 D. James Baker, “New Developments and Impacts of Ocean Remote Sensing,” in Alexander et al., supra note 2, 237-240, at 238. 40 H. U. Solanki et al., “Evaluation of Remote-Sensing-Based Potential Fishing Zones (PFZs) Forecast Methodology,” 25 Continental Shelf Research 2163-2173 (2005). The potential of remote sensing for fisheries has been considered since the 1980s. See for example: Lasker et al., “The Use of Satellite Infrared Imagery for Describing Ocean Resources in Relation to Spawning of Northern Anchovy,” 11 Remote Sensing of Environment 439-453 (1980); Fiedler et al., “Fisheries Applications of Satellite Data in the Eastern North Pacific,” 46 Marine Fishery Review 1-13 (1984); Laurs et al., “Albacore Tuna Catch Distribution Relative to Environmental Features Observed from Satellite,” 31 Deep Sea Research 10851099 (1984). 41 Solanki et al. note the limitation of sensors to visualize bottom resources. Ibid., 2169. 38

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short-term support for regional fisheries, ship routing and weather forecasting. 42 Satellite technology has enabled the retrieval of vast amounts of data covering large spaces and on an ongoing basis, a capacity which was not technically possible by the use of ships and other vessels alone. Satellite technology has enabled a shortening of temporal and spatial scales and as a result has improved resolution. Before the 1980s ships were used to sample the marine environment, and each time a ship stopped an observation was made. Time was a significant constraint and consequently data were produced in a slow and incremental manner, with observations varying by tens, hundreds or thousands of kilometres. At that time a ship-based northto-south survey of the Scotian Shelf resulted in a time interval of two weeks between the first and final observation, hardly producing synopticity. 43 In comparison, a satellite passing over the Scotian Shelf, at least once a day, produces a picture of the entire shelf at exactly the same time of each pass. Synopticity is thus produced. The satellite has reduced the temporal spacing by making a pass every day (in comparison to the ship survey taking place four times a year) and depending on the satellite instrument involved, it can reduce the spatial separation in an observation from tens or hundreds of kilometres to metres, and in some cases centimetres. These observations include: sea surface height, ocean currents, wave height and the direction, wind velocity and direction, ocean colour and even bottom topography, among others. As a result, it is now possible to see things present or happening that were missed before, all because of now shorter temporal and spatial scales of observation leading to increased resolution. 44 On a global 42

Martin, supra note 32, 166. Personal e-mail communication from Robert O. Fournier, Department of Oceanography, Dalhousie University, Halifax, NS, Canada, on 20 April 2006. 44 Fournier, ibid.. 43

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scale, satellites employed in operational remote sensing are able to survey a wide variety of oceanic properties at intervals of one to ten days. The value of this is that they are able to contribute to long-term studies of phenomena such as climate change, sea level rise and atmospheric and oceanographic oscillations, among others. 45 Satellite remote sensing is fast becoming an important tool not only for MSR in blue waters and the relationship between the oceans and atmosphere, but also for the coastal zone, i.e., the area of interface between land and sea. 46 More than 80% of marine pollution continues to be generated from land-based activities and remote sensing has become a useful tool to identify pathways. Remote sensing has enabled a better understanding of the growth and impacts of coastal zone uses on the marine environment. Buoys (moored and drifting) and floats are also increasingly used ocean instrumentation for various types of measurements, in combination with satellites. Buoys are able to make sub-sea measurements and retrieve data to which satellites do not have access. The TAO/Triton array includes some 70 moored buoys in the tropical Pacific, relaying data via the Argos satellite system. 47 David drifters are small floats moving with the current and used to measure temperature, wind, colour and salinity. 48 The retrieved

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Martin, supra, note 32, 2. For example, see the applications described in: E.P. Green et al., "A Review of Remote Sensing for the Assessment and Management of Tropical Coastal Resources", 24 Coastal Management 1-40 (1996); Jacques Populus et al., "Remote Sensing As a Tool for Diagnosis of Water Quality in Indonesian Seas", 27 Ocean & Coastal Management 197-215 (1995); Terje Wahl et al., "Radar Satellites: A New Tool for Pollution Monitoring in Coastal Waters", 24 Coastal Management 61-71 (1996). 47 Global GOOS, online: http://www.ioc-goos.org/openoceangoos.html (accessed on 2 June 2006). 48 NOAA, Ocean Explorer Website, online: 46

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data is transmitted to a satellite, which relays them to receiving stations. This data is useful to track pollution drift, weather and climate modeling, marine life such as plankton and are also useful for navigation routing. Satellites play an important role in receiving data transmitted from buoys, whether constantly on the surface or submerged buoys which re-surface periodically, and which in turn are relayed to ground stations. Over a period of ten years until 2010 the international Argos programme will survey the upper two kilometers of ocean through a global distribution of 3,000 profiling buoys, at intervals of 300 kilometres, whose observations will be reported by satellites. 49 They are significant for the enhancement of ocean numerical forecast models and generally for monitoring the marine environment. The programme covers large swaths of ocean areas within national jurisdiction and high seas. Sondes, and more recently CTDs (conductivity, temperature, depth), are also used for sensing at depths of 200 metres and have the capability of autonomous operation for lengthy periods. Typical measurements of sondes include temperatures, salinity, turbidity, among others. The acoustic space on board or in association with ships has also developed significantly in support of ocean mapping. Side-scan sonar has helped map seabeds, and with multi-beam sonar bathymetry can also be profiled. Multibeam scanning has helped profile seabed topography with a high degree of accuracy, resulting in a faster production of and more

http://oceanexplorer.noaa.gov/technology/technology.html (accessed on 2 June 2006). 49 Martin, supra note 32, 366, 385; Christian Ortega, “ARGOS Capabilities for Global Ocean Monitoring,” in H. Dahlin et al., eds., Building the European Capacity in Operational Oceanography (Amsterdam: Elsevier, 2003), 317-324.

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informative navigation charts. 50 High resolution topographic and habitat maps can be produced and could enable avoidance of sensitive habitats by bottom trawling, offshore oil and gas activities, pipelines and cables. 51 Echo sounders have become important tools for the assessment of fish stocks. 52 Nor is this technology limited to surveying or MSR use, having a significant commercial use in resource exploration. Fish finding sonars have become standard commercial equipment, with a remarkable range of up to 8,000 metres, enabling detection of schools of fish and tuna. The acoustic data can be recorded on a desktop computer.

There are many other MSR

applications of acoustics which are further changing fundamental knowledge of physical oceanography, such as ocean-wide acoustic experiments like Acoustic Thermometry in Ocean Science (ATOC) which has changed our understanding of the extent to which sea level changes are attributable to thermal expansion. 53 In addition to acoustic instrumentation on board ships, there is today an array of cabled and autonomous hydrophones. More limited and costlier than their autonomous counterparts, cabled hydrophones are static installations collecting real time data on ambient noise and its impact on the

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Richard J. McLaughlin, “Confidential Classification of Multi-Beam Bathymetric Mapping of the U.S. EEZ: Is a New U.S. Marine Scientific Research Policy in Order?” 19 Ocean Development and International Law 1-34 (1988). 51 See Gulf of Maine Mapping Initiative: A Framework for Ocean Management, May 2004, online: www.gulfofmaine.org/council/publications (accessed on 2 June 2006), 3. The benefits of mapping by multibeam scanning are outlined for the Gulf of Maine. 52 For example, see technology suppliers Simrad and Kongsberg, of Norway, online: http://www.simrad.com (accessed on 3 June 2006). Scallop beds can also be detected. See Estelle Hutin, Yvan Simard and Philippe Archambault, “Acoustic Detection of a Scallop Bed from a Single-Beam Echosounder in the St. Lawrence,” 62 ICES Journal of Marine Science 966-983 (2005), in particular at 980. 53 ATOC Consortium, “Ocean Climate Change: Comparison of Acoustic Tomography, Satellite Altimetry, and Modeling,” 281(5381) Science 1327 – 1332 (1998).

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environment, whales, among others. The range for the receipt of acoustic signals is so significant that a volcanic eruption in Japan was detected by a system off the coast of Oregon. 54 Autonomous hydrophones, useful also for studies of seismic phenomena and whales, can likewise detect acoustic signals at distances of 5,000 kilometres. 55 Although data is not broadcast in real time, it is expected that the utilization of cellular technology will remedy this shortcoming. There are several other technologies that have enhanced MSR capabilities. Operated from aircraft, Light Detection and Ranging (LIDAR) technologies, 56 in particular Differential Absorption Lidar (DIAL), measure chemical atmospheric concentrations of ozone, water vapor and pollutants. Submersibles and remote operating vehicles (ROVs) have further facilitated MSR in very deep waters. Autonomous underwater vehicles (AUVs) are the next generation of cost-effective MSR platforms. 57 The needs of deep sea science have triggered technological enhancements, and in turn these have enabled new inroads into, for example, biological and chemical oceanography in the study of communities living in the extreme conditions surrounding submarine vents in very deep waters. Associated technologies have significantly improved ocean technology and MSR capabilities. Since the 1980s, there have been vast improvements in the computational capacities and data management skills needed to handle these vast data sets, enabling sophisticated modeling for a variety of purposes, including climate change, meteorological forecasts,

54

NOAA, supra note 47. Ibid. 56 NASA, Lidar Tutorial, online: http://www.ghcc.msfc.nasa.gov/sparcle/sparcle_tutorial.html (accessed on 2 June 2006). 57 Gwyn Griffiths and Ian Edwards, “AUVs: Designing and Operating Next Generation Vehicles,” in Dahlin et al., supra note 48, 229-236. 55

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ecosystem assessments, and so on. A revolution in telecommunications has resulted from the widespread use of fibre optics and cellular technologies, and

this

has

greatly

enhanced

telecommunication

capacities

for

instrumentation and researchers alike. Technology to assist ship positioning has also seen major developments since the negotiation of the LOS Convention. Global positioning systems (GPS), with their ability to locate the position of a ship with a high degree of accuracy, is now openly available for general civilian use and has thus been invaluable for MSR generally. GPS has spun off associated technologies. The arrival of automatic identification system (AIS) for ships generally has enabled the broadcast of ship positions in real time. In addition to AIS, the IMO has adopted regulations on Long-Range Identification and Tracking (LRIT) of ships for safety, security and search and rescue purposes. 58 While AIS data are automatically retrieved and more generally available, LRIT data will be restricted in distribution and confidentiality safeguards are being built into the system. The relevance of these technologies for the monitoring of research and other vessels in zones of national jurisdiction and elsewhere is obvious to both researching and coastal States, and possibly to international organizations providing an umbrella for MSR cooperation. Satellite remote sensing is useful for tracking vessel movements, fishing activities, discharge of waste products and other substances, such as organic waste from fish factory ships and bilge and other oil releases into the marine environment. 59 The tracking technology for real-time monitoring of ocean uses can be a significant tool to facilitate compliance and enforcement. Molenaar and Tsamenyi note that although not necessarily always cost-effective, satellite-

58 59

IMO Briefing 19/2006, MSC 81, 25 May 2006. Martin, supra note 32, 354-356.

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based vessel monitoring systems are useful for fisheries management in terms of data-gathering and compliance with measures. 60 One issue they identified is confidentiality of data gathered. The significance of earth observing systems for compliance is gradually becoming evident in relation to multilateral environmental agreements (MEAs). 61 Spatial data on Earth’s biophysical systems can be useful to determine the extent to which states are complying, whether in spirit or to the letter, with some obligations under these conventions, for example sites under the Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat, 1971. 62 Despite some constraints, such as cost and expertise, this technology enhances the research while at the same time having the potential of giving new meaning to the duties of environmental monitoring, reporting and assessment frequently found in MEAs. 63 Ocean science appears to know frontiers more than boundaries. It has been said that the current boundaries of MSR “are largely defined by

60

E. J. Molenaar and M. Tsamenyi, “Satellite-Based Vessel Monitoring Systems for Fisheries Management: International Legal Aspects,” 15(1) International Journal of Marine & Coastal Law 65-110 (2000). 61 For example the Convention on Wetlands of International Importance especially as Waterfowl Habitat, 1971 (Ramsar Convention), Convention on Biological Diversity, 1992, United Nations Convention to Combat Desertification, 1994 and the United Nations Framework Convention on Climate Change, 1992 and the related Kyoto Protocol of 1997. See Nicolas Peter, “The Use of Remote Sensing to Support the Application of Environmental treaties,” paper presented at the 54th International Astronautical Congress of the International Astronautical Federation, the International Academy of Astronautics and the International Institute of Space Law, Bremen, Germany, 29 September-3 October 2003. 62 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Ramsar, Iran, 2 February 1971, online: (accessed on 2 June 2006). 63 Karen Kline and Kal Raustiala, “International Environmental Agreements and Remote Sensing Technologies,” Background Paper prepared for the Workshop on Remote Sensing and Environmental Treaties: Building More Effective Linkages, Washington, D.C., 4-5 December 2000, online: http://sedac.ciesin.columbia.edu/rstreaties/rs-treaties_bckgnd.pdf (accessed on 2 June 2006).

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our difficulty in obtaining quantitative information about physical, chemical and biological processes below surface layers of the ocean,” especially near-bottom or bottom ecosystem information on the continental shelf. 64 Much of the research interest in oceanography is thus in relation to areas of constraining geography on ocean flows occurring on continental shelves, margins and falls and within EEZs. 65 A great deal of interest also concerns upwelling, which frequently occurs within EEZs, and tracing the sources and pathways of nutrients and pollution into the marine environment, entailing a need to also cover terrestrial areas. 66 Ryder states that it “would be impossible to conduct the MSR and monitoring that is required without access to those domains.” 67 Thus, although the marine science community is generally interested in all aspects of oceans, much of what they are particularly interested in occurs in areas within sovereignty or national jurisdiction, and which may also include land.

The Frontiers of MSR and Diversification of Research Platforms

On definitions Writing on the significance of definitions in a historical work, the historian Fernand Braudel wrote that to “draw a boundary around anything is to define, analyse, and reconstruct” and in effect to adopt a philosophy. 68

64

Peter Ryder, “A Possible Migration from Marine Scientific Research to Operational Oceanography in the Context of the United Nations Convention on the Law of the Sea (UNCLOS),” in H. Dahlin et al., eds., Building the European Capacity in Operational Oceanography (Amsterdam: Elsevier, 2003), 25. 65 Ryder, ibid., 26-27. 66 Ryder, ibid., 27. 67 Ryder, ibid., 26. 68 Fernand Braudel, The Mediterranean and Mediterranean World in the Age of Philip II, Sian Reynolds trans. (London: Collins, 1972), Vol. 1, Preface to the First Edition, 18.

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Similarly in legal thinking, to define is to conceptualize and possibly identify a threshold for the application of a principle. Definitions have inclusive and exclusive effects. Marine scientific research is not defined in the Convention, despite numerous competing efforts over a number of years of negotiations at UNCLOS III. 69 Nor are exploration, 70 marine environment 71 or resources. 72 Some writers have pointed out the lack of definitions as a problem in the MSR regime because in practice some states have subjected certain research to unjustifiable requirements, possibly because they have not sufficiently distinguished between MSR and exploration and thus characterized a wide range of research as resourcerelevant. 73 The exclusion of a definition of MSR enabled negotiators in the Third Committee of UNCLOS III to reach consensus on the text of Part XIII. 74 Negotiators were dogged by the lack of consensus on the line to be

69

Virginia Commentary, supra note 21, 443-448. There were various definitions that were proposed, but none commanded consensus. The chief stumbling block was whether the freedom of MSR was a general one, or one that could not encompass research which had resource or industrial implications. The decision to exclude a definition in the text was at the Sixth Session in 1977 when the ICNT was produced. Ibid. at 448. 70 Soons defines exploration with reference to data collection concerning natural resources, supra note 19, at 125. Wegelein echoes a similar view, supra note 19, 8387. 71 The delegation of Malta proposed a definition that would have included “the surface of the sea, the air space above, the water column and sea-bed beyond the high tide mark, including the biosystems therein or dependent thereon.” Virginia Commentary, supra note 21, at 442. A scientific difficulty with this definition is that coastal ecosystems have both marine and terrestrial spatial spreads. 72 Wegelein suggests that this term, because it is used with reference to natural resources that may be subject to exploration and utilization in the LOS Convention, highlights economic value. Supra note 19, 87-88. This may be somewhat limiting, especially where a state places a “value” on a “resource” not so much for economic as much as ethical reasons. 73 See the survey of state practice undertaken by Gorina-Ysern, supra note 19, 31181, in particular the conclusions reached on 181. 74 Virginia Commentary, supra note 21, at 444.

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drawn between, on the one hand, fundamental or pure, and on the other, between applied or industrial research. The absence of a definition that clarifies the limits of application of the MSR regime can be expected to be questioned whenever developments in knowledge or skill produce novelty which is not immediately encompassed by a regime that applies ratione materiae et loci and according to the technology used. MSR will continue to be influenced by ongoing developments in technology for data retrieval. The latter will continue to provide new research capabilities to further understanding of components of the ocean environment and its totality, with that knowledge potentially enabling commercial uses. Common sense suggests exploration necessarily includes research, and vice-versa, except that in a law of the sea context exploration may be characterized as MSR for the purpose of resource identification and with a possible view of future utilization. Similarly, it may be arguable that operational oceanography is still research even though the data is collected and exchanged routinely; but it has been suggested that it should be treated analogously to meteorological research and considered as falling outside Part XIII. 75 Jurisdictional boundaries for MSR have always been viewed with concern by scientists. For a scientist, the MSR jurisdictional boundaries are limiting, rather than enabling. The scientist prefers not to see jurisdictional boundaries; boundaries tend to be in association with the natural phenomenon under study. A scientist researching marine ecosystems will necessarily have to include species which may have commercial value and may need to cover the spatial domain of that species, whatever the jurisdictional characterization of that space. The scientist may not be motivated by the economic returns of a resource in resource-related research. In any case, if the foreign research on a species in an EEZ is for 75

Ryder, supra note 63, 33.

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conservation rather than utilization purposes, why should it be a ground for denial of consent? To scientists, ecosystems (necessarily including component species) and their structures, functions and processes have become a research priority, as in fact reflected in the UN SecretaryGeneral’s latest report to the General Assembly on the law of the sea. 76 From a spatial perspective, the modern study of the marine environment is significantly more integrated in scope than what UNCLOS III negotiators may have had in mind and includes the study of the air and atmosphere above the ocean and terrestrial and hydrospace more generally. The study of energy cycles, carbon flows and ecosystems, for example, is not influenced by spatial boundaries as much as by sources, processes, flows and pathways. Thus the strict spatial characterization of MSR as hydrospace research is at odds with the needs of systems research. 77 While the absence of a definition poses difficulties for a full identification of those activities that fall within, or without the MSR regime, in a modern research environment the effort to produce one is likely to encounter practical difficulties. Perhaps limitations on marine scientific research intended by UNCLOS III negotiators are not practically feasible or socially useful in view of the vast amount of learning that is still needed to understand global ocean and climate change processes, and their impacts on ecosystems. This author suggests that rather than limiting, because of an

76

Oceans and the Law of the Sea: Report of the Secretary-General, UN Doc. A/61/63, 9 March 2006, at 39 et seq. 77 In the early 1970s, the need for an integrated approach was already understood by scientists. For example, Wooster and Bradley wrote that the “solution of many important scientific problems concerning ocean basins or oceanic processes as a whole requires looking at systems in their entirety, both in the open sea and in the region of transition between land and sea.” Warren S. Wooster and Michael D. Bradley, “Access Requirements of Oceanic research: The Scientists’ Perspective,” in Warren S. Wooster, ed., Freedom of Oceanic Research (New York: Crane, Russak & Co., 1973), 29-39, at 31.

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undefined boundary for MSR as a concept, the absence of a definition has enabled flexibility in adapting the spirit of Part XIII to new research frontiers and opportunities. Research platforms In setting out general principles and rules for MSR, UNCLOS III negotiators had sea-based MSR platforms in mind, whether implicitly or explicitly. The general principles set out in Sections 1 and 2 of Part XIII do not make explicit reference to any particular MSR platform, but they appear to be based on the assumption that the MSR subject to the regime would be sea-based. For example, MSR should not unjustifiably interfere with other legitimate uses of the sea which are to be duly respected, suggesting MSR on the basis of a sea-based platform. 78 The Section 3 rules on the conduct of MSR in the EEZ or on the continental shelf are more specific in their application to vessels, installations and structures as platforms. For example, the duty of the researching state to provide information to the coastal State is based on the use of vessels and installations as research platforms. 79 This was specifically so intended by the negotiators of the Convention. Elsewhere in the Convention, the rights of the coastal State in relation to MSR also appear limited in terms of the platforms contemplated. In exercising sovereignty in its territorial sea, the coastal State may enact laws and regulations on marine scientific research in the context of innocent passage by ships and deem passage by a foreign ship which involves research activities as not being innocent. 80

In the EEZ the coastal State has

78

LOS Convention, supra note 1, art. 240(c). LOS Convention, ibid., arts. 248 and 249. 80 LOS Convention, ibid., arts. 19(2)(j) and 21(10(g). 79

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jurisdiction over MSR, including the exclusive right to construct, authorize or regulate installations and structures for MSR. 81 In terms of location, UNCLOS III negotiators were clear on the location of MSR and the application of the respective rights and duties of coastal States in those areas. Thus MSR in the territorial sea “shall be conducted with the express consent of and under the conditions set forth by the coastal State,” 82 but this does not appear to restrict MSR concerning the territorial sea, but not undertaken using a platform not located therein. A similar geographical restriction for coastal State MSR regulatory purposes appears in relation to research in the EEZ and on the continental shelf. 83 Thus research using remote sensing technologies located outside the territorial sea and the EEZ, or continental shelf, would not appear to be covered by the coastal State’s regulatory authority, even if that research retrieves data concerning those national maritime zones. As seen above, today there are tremendous capabilities to collect large amounts of oceanographic data at great distances in the marine environment, with a retrieval point where the regime of consent might not apply, or from above the sea in the air where the law of the sea might or might not apply depending on location, and from outer space where the law of the sea does not apply. Satellite-based remote sensing is not within the realm of the law of the sea, but is indispensable for a contemporary understanding of marine environmental processes. Although a number of states originally wanted to subject satellite remote sensing as MSR subject to the consent regime, it was thought that this technology fell outside the scope of the LOS Convention. It was not research conducted directly in the marine environment and was more appropriately regulated under the legal 81

LOS Convention, ibid., arts. 56(10(b)(i) and (ii), and 60(1)(b). Emphasis added, LOS Convention, ibid., art. 245. 83 LOS Convention, ibid., art. 246(1) and (2). 82

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regime concerning air and outer space. 84 Instead, the principle of freedom of investigation in outer space was considered to apply then and to so continue now. 85 The relevant principles that apply are those in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies, 1967 (Outer Space Treaty) 86 and more specifically to remote sensing, the 1986 Principles relating to Remote Sensing of the Earth from Outer Space (Remote Sensing Principles). 87 The freedom to investigate space includes investigation of the Earth’s surface from space and is not subject to the consent of the sensed state. 88 However, remote sensing from aircraft is covered by the consent regime because the airspace over the EEZ is considered part of that zone. 89 Many developing states negotiating at UNCLOS III were suspicious of marine science states. Knowledge may have been perceived as both empowering and threatening, and they wanted to guard knowledge of

84

G. M. Danilenko, “Space Technology and Marine Scientific Research,” 12 Marine Policy 247-255 (1988), at 250. 85 Danilenko, ibid., 247; Wegelein, supra note 19, 258-269. 86 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies, Washington, London and Moscow, 27 January 1967, 610 UNTS 205 (hereafter Outer Space Treaty). 87 Principles relating to Remote Sensing of the Earth from Outer Space, 1986 online: http://ioc.unesco.org/oceanteacher/oceanteacher2/01_GlobOcToday/01_SciOc/05_ RemSens/UNprinciples.htm (accessed on 2 June 2006) (hereafter Remote Sensing Principles). 88 Danilenko, supra note 83, 251. However, the sensed state has a right of access to the data generated. Ibid., 252. 89 Soons, supra note 19, 177. The Canadian position is that “an aircraft studying the marine environment would be subject to the UNCLOS provisions, while an aircraft studying the atmosphere would not” because it is not the marine environment which is being studied. Michael Leir, “Canadian Practice in International Law at the Department of Foreign Affairs in 1998-99”, 37 Canadian Yearbook of International Law 317-349 (1999), at 333.

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resources in their newly acquired maritime zones. Franssen captured this sentiment well in 1973 when she wrote that the claims “of some developing countries to have extensive territorial seas and exclusive fishing zones, and the actions taken by some to restrain oceanic research by foreign scientists reflect a fear that under the guise of advancing knowledge the maritime powers will gain a commercial and/or military advantage on the continental shelf or in offshore waters.” 90 The colonial experience of nations deprived of their resources had cast a long shadow on the post-colonial period when newly independent states were attempting to define their newly found status and gains in the law of the sea, and in the process redefining the international community itself. The irony today is that MSR through remote sensing has become a major way of doing research and ongoing monitoring, data retrieval and relaying, and none of this is subject to the consent regime. Modern MSR would be severely handicapped if satellite technology were not available. At the same time, with the capabilities of today, it does not appear that satellite remote sensing as an integral part of an MSR system has caused insuperable major difficulties between researching and sensed states, even though data may be gathered on both terrestrial and oceanic domains of states. The reason for this may be that activities falling within the realm of the Outer Space Treaty are to be carried with due regard to the interests of sensed states and “for the benefit” of all countries, even though not necessarily free of cost. 91 The principles also provide for access by the sensed state to primary and processed data at reasonable cost. 92 90

Maureen N. Franssen, “Oceanic Research and the Developing Nation Perspective,” in Wooster ed., supra note 76, 179-200, at 179. This view, and in particular the potential of knowledge of the marine environment in the EEZ by foreigners, has been echoed more recently by Wegelein, supra note 19, 66-69. 91 Outer Space Treaty, supra note 85, art. 1. 92 Remote Sensing Principles, supra note 86, Principle XII.

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Ship-based acoustics Ship-based acoustic technology aboard fisheries research vessels is valuable for both research and resource utilization. The fish finding technologies alluded to earlier raise an interesting question of differentiating between exploration and research and in defining fishing gear for stowage purposes. Passage in the territorial sea, archipelagic waters and international straits is not innocent if the foreign vessel carries out fishing, research or survey activities. In the case of transit passage, the coastal State may legislate in relation to “fishing vessels, the prevention of fishing, including the stowage of gear.” 93 Although not in identical language, a coastal State may legislate to regulate innocent passage of fishing vessels through the territorial sea insofar as fishing activities are concerned. 94 Ditto in the EEZ in pursuance of the coastal State’s exclusive right to explore and exploit living resources and the exercise of MSR jurisdiction. 95 In the exercise of their legitimate regulatory authority, coastal States may require foreign fishing vessels to stow their fishing gear during the exercise of passage through the territorial sea, archipelagic waters, international strait and navigation in the EEZ. But exactly what is included in ‘fishing gear’ and the meaning of ‘stowed’ is open to question in relation to the latest generation of modern fishing vessels. In modern distant fisheries research and fishing vessels, fish finders are standard. The fishing gear is no longer restricted to fishing nets, floats and other mechanical means of exploitation. In the digital and modern acoustics era, the act of fishing involves the substitution of technology for the fisherperson’s intuition and experience in locating schools of fish such as valuable tunas. 93

LOS Convention, supra note 1, art. 42(1)(c). LOS Convention, ibid., art. 21(1)(d). 95 LOS Convention, ibid., art. 56(1)(a). 94

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A modern fishing vessel is equipped with different fishing nets (purse seine, otter trawl, tuna long line and drift gill net), research equipment (oceanographic winch, dry and wet laboratories and acoustic space), GPS and frequently fish processing equipment. The acoustic space includes echo sounder, scanning sonar, colour fish finder, net recorder, net sonde and weather station.

Electronic equipment includes computers. Sonar

technology can locate a stock within a considerable distance from the vessel. That technology can determine the size of the school through the calculation of biomass, and with some experience the computer operator can actually determine the species on the computer screen. The brain of the fishing operation is a sophisticated technology that basically works in conjunction with common personal computers, with fish stock data being electronically/digitally recorded. The question that arises is whether the fish finders are or should be considered as an integral part of the fishing gear in a modern operation, or whether gear strictly refers to the actual capture gear itself. If consideration of the fish finders is reasonably part of the fishing gear, and not simply research equipment on a research vessel, then the subsequent question is what stowage means in relation to such gear. Presumably, stowage, in terms of rendering ineffective the use of the equipment would mean switching off the power. If power is not switched off, these vessels could conceivably retrieve resource-related data during passage, potentially violating duties contingent on the exercise of their right of navigation. Stowage of electronic and acoustic equipment in the above sense would be difficult to monitor by coastal State authorities without actually boarding the ship. ‘Stowing’ is an actual physical and visible act on board the fishing vessel involving the packing and storing of nets in a manner that is visible to the inspector, either at sea or in the air.

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Supposing electronic and acoustic equipment are not considered part of the vessel’s fishing gear falling under the stowage requirements of passage, but simply as research equipment, is there an alternative approach for coastal State control? Scanning and the recording of scientific data may still be illicit in the territorial sea and subject to the consent regime in the EEZ if their use is characterized as research of the marine environment. This technology perhaps illustrates the disadvantage that a coastal State faces in monitoring research activities that may be more akin to exploration.

Have Changes in Knowledge and Skill Necessitated Legal Change?

The discussion above has demonstrated that we know much more about the ocean environment today, that we have discovered a range of major new problems, and that we have more and better tools for doing research, and not all of these fall within the ambit of the LOS Convention, but that we continue to regulate research on the basis of a legal regime developed 30 years ago. But have knowledge and skill developments since the adoption of the LOS Convention reached a stage where a review of the MSR regime is timely? Writing in 1988 Craven hypothesized that if “much of this nearly universal consensus code is incompatible with the technology of today and of the near future, then it would not be rash to suggest that this universal text will require revision.” 96 In that same year and at the same meeting Miles queried whether conditions for legislative reform through an UNCLOS IV existed at the time. He was concerned with the delicate 96

John P. Craven, “Technology and the Law of the Sea (A Twenty Year Reprise)”, in Alexander et al., supra note 2, 36-49, at 36. See also by the same author, “Technology and the Law of the Sea: The Effect of Prediction and Misprediction,” 45(6) Louisiana Law Review 1143-1159 (1985).

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balance of what is potentially an unstable LOS Convention package. He reiterated UN experience with codification and stated that “the convention method should be attempted only when the need for legislative reform was so obvious and pressing that it cannot be ignored or when the international community is faced with the concerted demands of a significant group of states.” 97 He concluded that the conditions for another codification conference were not there, but that they would exist if the LOS Convention were allowed to disintegrate. His principal concern was creeping jurisdiction, which he said will always be with us. 98 Creeping jurisdiction has a dynamic relationship with technological advance and perceptions of threats to or new opportunities to advance national interests. A re-thinking of Part XIII should not be embarked upon except for cogent reasons as it carries the danger that it might not take into consideration that it is part of a package of compromises in a complex instrument. However, it will not be the first time that parts of the LOS Convention have received some re-thinking, leading to legal development. There are several arguments that could be raised to justify revisiting Part XIII, but the question is whether they stand up to scrutiny. A first argument might be that the freedom of marine scientific research, the foundation principle underlying Part XIII, is not receiving sufficient protection because of coastal State functional creep or that researching states are abusing it. In other words, the argument might suggest that a significant number of states are not respecting the conditions and limitations on the consent regime, with coastal states denying the undertaking of research in their EEZs which they ought not to, and researching states permitting unauthorized research or not fulfilling the

97 98

Miles, supra note 3, at 492. Ibid., 492-493.

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contingent duties. Admittedly, there are some states that have not fully legislated the MSR regime into their domestic law and at times have acted inconsistently with the spirit or letter of the LOS Convention when requests for permission by research states are submitted to them. 99 However, judging from the numerous MSR initiatives from an increasingly larger number of states, and in particular the United States, it does not appear that the denials constitute a general practice that is threatening that freedom, at least not as yet. 100 This may be explained in part with reference to the desire of most state parties to respect the package, the role of international organizations as umbrellas of and shepherds for MSR, and the facilitative role played by DOALOS in providing guidelines for MSR regulation and model standard forms for requests and consent. 101 The second argument that might suggest a revisit is Craven’s technological obsolescence. There are indeed significant new platforms and technologies for MSR not anticipated in the LOS Convention, or if anticipated are subject to other regimes in a way that does not respect the balance intended to be achieved by UNCLOS III negotiators within the 99

Gorina-Ysern notes that there are many regions where Part XIII remains unimplemented. Ibid, 181. 100 In the statistics of clearances and denials to US requests for MSR consent compiled by Gorina-Ysern for the period 1972-2001, it appears that in most regions the denials, although variable in number, are relatively few. For example, in the Persian Gulf there were five denials to 41 clearances. In the East Mediterranean and Red Sea there were 42 clearances and no denials, while with respect to African states, there were 158 clearances and no denials. In European and Canadian waters, there were 2,285 clearances and four denials. There were 22 denials to 2,493 clearances in the Caribbean, and 759 clearances to 28 denials to 759 clearances in Central America. The other regions had similar patterns, except for North Pacific States where there were 22 denials to 117 clearances, perhaps constituting the highest rate of denials. Supra note 19, 184-190. 101 United Nations Office of Ocean Affairs and the Law of the Sea, Marine Scientific Research: A Guide to the Implementation of the Relevant Provisions of the United Nations Convention on the Law of the Sea (New York: OALOS, 1991). Gorina-Ysern states that the majority of states appear to be adhering to the DOALOS standard form. Supra note 19, at 603.

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Convention package. There are two responses to this. The lack of a definition of MSR has left a degree of flexibility in terms of what to include, or exclude as research of the marine environment. With respect to remote sensing, which is the only other significant platform not subject to the Part XIII regime, the applicable principles and rules of outer space law are somewhat different but not fundamentally inconsistent with Part XIII. Freedom of research of the Earth from outer space is maintained, and although it is true that non-consent based research includes remote sensing of areas within national jurisdiction, there is an expectation that the sensed state has access to the results. Admittedly, access to results is against a reasonable cost, which finds no counterpart in Part XIII. It is suggested that the divergence is relatively minor. However, should remote sensing become even more sophisticated as to enable researchers to retrieve resource-related data for exploration purposes and without the need of further research from sea-based platforms, that would be a major development that could significantly upset the delicate balance in Part XIII. The reason for this is that such technological advance would enable researching states to do something outside the framework of the Convention, but which state parties intended that it be regulated within that framework. Part XIII is built on the fundamental assumption of exclusive resource exploration rights of the coastal State as set out in other parts of the Convention. The third argument is that at the rate of development, science and technology and in the current legal environment of intellectual property, the differences between coastal State haves and have-nots might be widened, prompting calls for a fairer distribution of knowledge and skill benefits. 102 102

This was a point raised at a meeting of experts convened by the Maritime Awards Society of Canada (MASC) at Dunsmuir Lodge, near Victoria, B.C., Canada, on March 21-22, 2003. See MASC, Report: “Revisiting the Law of the Sea”, (Victoria, B.C.: MASC, 2003), 14.

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This is a serious argument because MSR in the EEZs of developing states raises questions on the mutual benefits for both researching and EEZ states. It is still relatively a minority of coastal States (even though the list is getting longer) that have significant knowledge, skill and financial capabilities to undertake cutting edge MSR. 103 Sharing of benefits in this context was an equity issue at UNCLOS III and a strong argument for considering MSR as contributing to knowledge as a public good. According to Brown, “[O]nce the information is available, the marginal cost of another person using it is zero—it is non-rival.” 104 Researching states are expected to provide reports to the EEZ states, but it appears that there is inconsistency with respect to what is actually provided. 105 Further, much MSR data is now available on the internet, although it has been pointed out that at this time electronic access to scientific publications is not necessarily fully available in all developing EEZ states or to their scientists. 106 Another concern in Part XIII is intellectual property over MSR outputs raised by Gorina-Ysern. This is possibly an issue of regime convergence, with the law of the sea on the one hand and intellectual property law on the other. While recalling one of the fundamental aims of the LOS Convention as “a just and equitable international order,” she points out that “the allocation of intellectual property rights over MSR data, samples and results” was not satisfactorily resolved by the Convention. 107 The Convention provides for

103

For example see supra note 33. Martin Brown, “International Public Goods and Operational Oceanography,” in Dahlin et al., 422-429, at 426. 105 Gorina-Ysern, supra note 19, 613 on enforcement of post-cruise obligations. 106 Gorina-Ysern, ibid., 615. Access to on-line scientific publications is not universal. 107 Montserrat Gorina-Ysern, “Marine Scientific Research Activities as the Legal Basis for Intellectual Property Claims?” 22 Marine Policy 337-357 (1998), at 338. The author further developed this argument in Gorina-Ysern, supra note 19, 353460. See also Peter S. Prows, “Tough Love: The Dramatic Birth and Looming 104

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knowledge resulting from MSR to be made available by publication and dissemination. 108 States are expected to cooperate in the active flow of data and information and transfer of knowledge resulting from MSR especially to developing states. 109 The Convention is “silent on the issue of intellectual property rights, and agreements thereof, between coastal State authorities and foreign researchers and international organizations.” 110 A fourth argument could be that Part XIII does not sufficiently reflect environmental research ethics. Whaling research and extracting samples of living organisms (including bioprospecting) under national jurisdiction without a coastal State’s concern could fuel this argument. 111 While the general perception is that MSR is good for the common good because it produces knowledge as a public good, there are also concerns that in some situations it might conflict with ethical concerns as perceived by members of the international community. In principle, MSR has to be conducted in compliance with regulations for the protection and preservation of the marine environment, 112 but the Convention is silent on the subject of research ethics. While Wegelein might be right in stating that the “moral connotations of scientific activity are not a constituent of the definition of science,” 113 it is also true that good research is ethical research, Demise of UNCLOS Property Law,” New York University Public Law and Legal Theory Working Papers, Paper 30, 2006. 108 LOS Convention, supra note 1, art. 244(1). 109 LOS Convention, ibid., art. 244(2). 110 Gorina-Ysern, supra note 108, 338. 111 One way to deal with the ethical concerns is to have dedicated agreements to cover sampling and which would include informed consent of local and indigenous communities, as well as be properly certified for the purposes of the Convention on the International Trade in Endangered Species of Wild Fauna and Flora, Washington, D.C., 3 March 1973 (CITES), as amended, online: http://www.cites.org/eng/disc/text.shtml. This view is advanced by Gorina-Ysern, ibid., 607-610. 112 LOS Convention, supra note 1, art. 240(d). 113 Wegelein, supra note 19, 91.

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including in the marine environment. In a modern research environment, scientists are used to having to satisfy basic research ethical requirements as a condition of their grants, and perhaps there is no reason why research ethics should not in the future become an explicit requirement in MSR. An MSR code of conduct might be a starting point in this direction. This would be consistent with the underlying notions of MSR for peaceful purposes and for the benefit of humankind. The concerns raised by the above potential arguments could substantially be dissipated by trends in international cooperation and efforts through international organizations. Besides provision in Part XIII itself, the arguments in support of international MSR cooperation are several: many ocean problems are of a large scale, regional and/or global, and consequently in the common interest; the cost of such research is prohibitive for any one state, and consequently calls for a pooling of resources; equity demands international participation and sharing of benefits. In these respects, the MSR regime has provided a viable framework for pragmatic and functional cooperation through international organizations. Reasons of geographical scope, volume and complexity of tasks and costs have been cogent incentives to multilateral cooperation. In addition to the role of technology in enhancing MSR technical capacities, international cooperation has played a critical role in expanding the scope and participatory aspects of research. Modern MSR is increasingly requiring large, long-term, multidisciplinary and international projects on a regional and/or global scale, requiring complex multilateral cooperation. Intergovernmental Oceanographic

organizations,

Commission

(IOC)

mainly of

the

UNESCO

Intergovernmental and

the

World

Meteorological Organization (WMO), and non-governmental organizations such as the International Council for the Exploration of the Sea (ICES) have

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been able to mobilize large sections of the international community of states, and their scientists, to pursue science in the common interest of humanity. The Deep Ocean Drilling Programme, Global Ocean Observing System, International Geosphere-Biosphere Programme, Tropical Oceans and Global Atmosphere, World Climate Research Programme and World Ocean Circulation Experiment, among others, are examples in point. For example Argo has 23 states contributing to the array of free-drifting profiling floats. Consent management with such a large number of states participating directly, and others that may experience floats in their maritime zones, has been addressed administratively and in a centralized manner. 114 The Argo Information Centre, based in Toulouse, France, has implemented an IOC resolution to secure consent of coastal states in whose waters Argo floats might drift. 115 International organizations have provided forums and processes to maintain relevance and enable practical compromises to be reached, thus reconciling national interests to larger community interests in the generation of ocean knowledge. 116 They have also set up technical mechanisms to address legal issues as they arise. The IOC’s Advisory Body of Experts on the Law of the Sea (ABE-LOS) plays an important role in this respect. Thus when the issue of how the MSR regime applies to floats and buoys deployed on the high seas but which drift into EEZs and deployment of XBTs by ships of opportunity in the EEZ arose, the IOC Assembly was requested to empower ABE-LOS to provide

114

This was also a suggestion by Ryder, supra note 63, 34. IOC Resolution XX-6 states: “Concerned coastal states must be informed in advance, through appropriate channels, of all deployments of profiling floats which might drift into waters under the jurisdiction, indicating the exact location of such deployments.” Online: www.argo.net (accessed on 2 June 2006). 116 Ryder, supra note 63, 31. 115

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Aldo Chircop

practical guidelines. 117 Guidelines can be expected to provide a framework for consistency and legitimacy for state practice in relation to the deployment of new technologies, thus potentially minimizing widely inconsistent practices that might undermine the spirit of the MSR regime. Perhaps the underlying issue in international cooperation is not simply access to knowledge, but also participation in knowledge-building and enhancement of abilities to participate and actually benefit from that knowledge. This is a point where Parts XIII and XIV on the development and transfer of marine technology converge. IOC’s ABE-LOS has developed Criteria and Guidelines on the Transfer of Marine Technology which have been adopted by the mother organization, 118 but they are recent and therefore remain largely untested.

Conclusion

Part XIII seems to be providing a viable, functional, if imperfect framework for MSR at this time. It appears to provide an equitable balance between the respective rights and responsibilities of researching and coastal States. There continues to be unfinished business from UNCLOS III, unfinished because the achievement of consensus demanded it and because a legal regime built on science and technology should be expected to have ongoing business as change occurs. However, it is likely that further advances and changes in knowledge and skill may further question the assumptions behind the regime, and whether those will unravel the balance of rights in Part XIII could depend on whether researching and coastal 117

IOC/ABE-LOS, Report, Fifth Session, Buenos Aires, 11-15 April 2005, IOC Doc. IOC/ABE-LOS V/3, April 2005, Annex II: Recommendations. 118 IOC Criteria and Guidelines on Transfer of Marine Technology, IOC Doc. IOC/ABE-LOS IV/Inf. 3, May 2004.

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States perceive benefits from further international cooperation. The role of intergovernmental organizations in continuing to build networks of knowledge in their international MSR programmes and develop guidelines to address existing and future gaps is going to be critical. The networks will need to be accompanied by significantly more capacity-building efforts to enable developing coastal States to fully participate and thereby benefit from cooperative MSR.

615

PANEL VII: MARINE BIOLOGICAL DIVERSITY, GENETIC RESOURCES, AND THE LAW OF THE SEA

Remarks of the Moderator Tomas H. Heidar * In recent years increased attention has been given by the international community to the conservation and sustainable use of marine biological diversity, including genetic resources, in particular in areas beyond national jurisdiction. This growing interest is, inter alia, due to increased environmental awareness and reflected in greater emphasis on applying an ecosystem approach to fisheries management. This topic is very broad and covers basically all marine life, as can be seen from the definitions of such key terms as “biological diversity” and “biological resources”. Article 2 of the Convention on Biological Diversity (CBD) defines biological diversity as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems”. Biodiversity is thus an attribute of life and refers to the variability of life in all forms, levels and combinations. It includes ecosystem diversity, species diversity and genetic diversity. According to the same article, biological resources include “genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity”. Genetic resources, in particular, are defined in the same article as “genetic material of actual or potential value”, and genetic material is defined as “any material of plant, animal, microbial or other origin containing functional units of heredity”. In the light of recent developments

*

Legal Adviser, Ministry for Foreign Affairs of Iceland, and Director, Law of the Sea Institute of Iceland.

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Thomas H. Heidar

in the field of genetics, it is now known that every cell of every living organism contains functional units of heredity. Biodiversity has twofold value: Firstly, the diversity of genes, species or ecosystems has value per se. Secondly, particular components of that diversity, for example particular species of fish, have value for human consumption or use. Consequently, biodiversity can be diminished either if the diversity itself is reduced, such as through the extinction of a species, or if the potential of the components of diversity to provide a particular service is diminished, such as through unsustainable harvesting. The legal framework for the conservation and sustainable use of marine biological diversity is provided primarily by the UN Convention on the Law of the Sea, the Convention on Biological Diversity and the UN Fish Stocks Agreement. Although the Law of the Sea Convention does not explicitly address biodiversity, it applies to all activities in the oceans and its jurisdictional framework and general principles also apply to the conservation and sustainable use of marine biological diversity, including in areas beyond national jurisdiction. At the international level the various aspects of the issue at hand have been dealt with by such bodies as the Convention on Biological Diversity, the Food and Agricultural Organization of the United Nations (FAO), the International Seabed Authority (ISA), regional fisheries management

organizations

and

regional

environmental

protection

organizations. In recent years the UN General Assembly has given this issue increased attention and sought to gain an overview of activities of different international bodies in this important field and to play a coordination role. For this purpose, the General Assembly, in its resolution 59/24 on oceans and the law of the sea in 2004, decided to establish an Ad Hoc Open-

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Remarks of the Moderator

ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. The Working Group held its meeting in New York from 13-17 February 2006. In my view the meeting was successful in providing a comprehensive overview of activities of different bodies in this field as well as in examining the scientific, technical, economic, environmental, legal and other aspects of these issues. This task was greatly facilitated by a balanced, informative and comprehensive report prepared by the Division for Ocean Affairs and the Law of the Sea of the United Nations (DOALOS). It is expected that the General Assembly will mandate the Working Group to reconvene in the near future. Among the issues that were discussed at the February meeting were the following: 1. Impacts of destructive fishing practices on vulnerable marine ecosystems. This issue has been the subject of thorough discussion and examination in the General Assembly in the last few years and will be reviewed in the autumn of 2006. The meeting referred to this process which was generally considered as the appropriate mechanism for further discussion of this important issue. 2. Marine protected areas. Questions relating to the establishment of marine protected areas on the high seas, some of which are related to the issue mentioned above, were discussed and different views and positions expressed. These include, inter alia, jurisdictional problems. 3. Marine genetic resources. Different views were expressed on whether, according to the Law of the Sea Convention, marine genetic resources in areas beyond national jurisdiction fall under the regime for the high seas or under the regime for the international

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Thomas H. Heidar

seabed area. The former view is typically taken by industrial countries

and

Notwithstanding

the this

latter

view

legal

by

difference,

developing there

was

countries. general

understanding that more information on the extent and nature of genetic resources and their potential use is needed. In addition, marine scientific research in this field should be promoted, transfer of marine science and technology to developing countries should be increased, and greater participation of scientists and policy makers from developing countries should be facilitated. 4. Question of governance gap and need for a new implementation agreement. The meeting discussed whether there is a governance gap with respect to the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. The European Union maintained that this is the case and that a new implementation agreement under the Law of the Sea Convention is required. The majority of States took the opposite view and was not convinced of the need for a new implementation agreement. These States consider that all the necessary tools are in place, including the Law of the Sea Convention, the UN Fish Stocks Agreement and the Convention on Biological Diversity. These instruments should be widely ratified and fully implemented to fill any implementation gaps. These examples reflect the breadth and diversity of the issue at hand. In this Panel, which is entitled “Marine Biological Diversity, Genetic Resources and the Law of the Sea”, the intention is both to provide a general overview and to focus on the most topical issues. Eric Jaap Molenaar will first give us a comprehensive overview of the management of biodiversity in areas beyond national jurisdiction, Margaret F. Hayes will

622

Remarks of the Moderator

then discuss marine genetic resources and the law of the sea, Kevern Cochrane will then deal with marine protected areas as management measures and finally Fernanda Millicay will present a different legal perspective on marine genetic resources by discussing legal principles applicable to biodiversity in areas beyond national jurisdiction.

623

Managing Biodiversity in Areas Beyond National Jurisdiction Erik Jaap Molenaar Abstract The global loss of biological diversity (biodiversity), both terrestrial and marine, occurs currently at an alarming and probably unprecedented rate. Marine biodiversity is affected by human activities on land, in the coastal zone and further offshore. The following main human activities may or do occur in areas beyond national jurisdiction (ABNJ): marine capture fisheries, navigation, marine scientific research, bioprospecting, laying submarine cables and pipelines, constructing artificial islands and other installations, ocean dumping, exploration and exploitation of non-living resources and overflight. The main purpose of this article is to identify shortcomings in the international legal framework relating to the conservation and sustainable use of marine biodiversity in ABNJ and possible solutions for selected shortcomings. Particular attention is devoted to marine capture fisheries, which currently may well be the largest threat to, or have the most impact on, marine biodiversity in ABNJ. The article does not deal with the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, and, in relation to MPAs (in ABNJ), only addresses the international institutional aspects. After an introductory section, the article provides a brief overview of the current international legal framework relating to the conservation and sustainable use of marine biodiversity in ABNJ. Section 3 then offers some preliminary considerations on the reform of this

Senior Research Associate, Netherlands Institute for the Law of the Sea (NILOS), Utrecht University and Associate Professor, Faculty of Law, University of Tromsø. The author’s PowerPoint presentation can be viewed on the accompanying CD. The author is grateful for comments by H. Nieuwenhuis and A. Trouwborst on an earlier version. However, the author remains responsible for the current text. Professor Molenaar can be contacted at [email protected].

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Erik Jaap Molenaar

international legal framework. Subsequently, Section 4 elaborates on selected substantive reforms, with subsections focusing on discrete high seas fish stocks, deepsea species, integrated MPAs and, finally, on new and existing rights to conserve marine biodiversity. The main argument pursued in this last subsection is that in view of the rate of loss of marine biodiversity, States are urged to make optimal use of existing rights and that the reform of the international legal framework should not just follow the traditional approach by strengthening, deepening and broadening obligations. Instead, it should also incorporate new rights to conserve marine biodiversity in ABNJ, for instance by broadening the rights of port States or by stipulating the consequences of the absence of a genuine link and a failure to cooperate with regional fisheries management organizations. The article ends with some conclusions.

1. Introduction The global loss of biological diversity (biodiversity), both terrestrial and marine, occurs currently at an alarming and probably unprecedented rate. There are various causes for this loss, but there is little doubt that human activities are, directly or indirectly, the main cause. While loss of biodiversity is already deplorable philosophically, biodiversity is also valuable to humans for other reasons, for instance for exploitation purposes, as a source for biotechnology, for the ecosystem services that it provides, as a tourism-base, for cultural or spiritual reasons or simply for the mere knowledge of its existence. 1 Marine biodiversity is affected by human activities on land, in the coastal zone and further offshore. The following main human activities may 1

See the first two preambular paragraphs to the CBD (Convention on Biological Diversity, Nairobi, 22 May 1992. In force 29 December 1993, 31 International Legal Materials 822 (1992); ).

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Managing Biodiversity

or do occur in (marine) areas beyond national jurisdiction (ABNJ) - a term that is clarified further below: marine capture fisheries, navigation, marine scientific research, 2 bioprospecting, 3 laying submarine cables and pipelines, constructing artificial islands and other installations, ocean dumping, exploration and exploitation of non-living resources and overflight. 4 But human activities on land and in the coastal zone affect marine biodiversity in ABNJ as well. For instance, the impact of land-based pollution, including pollution through the atmosphere, is likely to gradually increase and spread further offshore. Seamounts, cold-water coral reefs, hydrothermal vents and sponge fields are often mentioned as features in ABNJ that are under particular threat of human activities that take place in those areas. 5 This article has a strong focus on marine capture fisheries, which currently may well be the largest threat to, or have the most impact on, marine biodiversity in ABNJ. 6 This is due to over-exploitation of many target species (including discarding) and impacts on the broader marine 2

3

4

5

6

It should be noted that the LOS Convention (United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994, 1833 United Nations Treaty Series 396; ) does not contain a definition for marine scientific research. Accordingly, while some States regard activities like routine hydrographic surveys not as marine scientific research, others do. See the contribution by J.A. Roach. Bioprospecting is regarded by some as marine scientific research. See also the discussion by M.W. Lodge, “Improving International Governance in the Deep Sea”, 19 International Journal of Marine and Coastal Law 299-316 (2004), at p. 302, n. 13. K.M. Gjerde, “Ecosystems and Biodiversity in Deep Waters and High Seas”, UNEP Regional Seas Reports and Studies No. 178 (2006; available at )), at pp. 31-32 also mentions various options to store CO2 in the water column or beneath the sea floor. For an overview see Gjerde, note 4 above, and UN Doc. A/61/154, of 14 July 2006, ‘Impacts of fishing on vulnerable marine ecosystems: actions taken by States and regional fisheries management organizations and arrangements to give effect to paragraphs 66 to 69 of General Assembly resolution 59/25 on sustainable fisheries, regarding impacts of fishing on vulnerable marine ecosystems. Report of the Secretary-General’, at pp. 8-9. Cf. Gjerde, note 4 above, at pp. 6 and 22.

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ecosystem as a consequence of by-catch of non-target species (e.g. fish, sedentary species, megafauna and birds) and of impacts on the benthos. Assessing the relative threat to, or impact on, marine biodiversity in ABNJ of various human activities, wherever they take place, is an almost impossible task. And even if it would be feasible, the ensuing prioritization for remedial action is very likely to have been significantly influenced by a cost-benefit analysis in which juridical and political considerations take a prominent place. In this light, it is noteworthy that the impacts of marine capture fisheries are much more tangible to a broader public in comparison to, for instance, land-based pollution. Also, the non-intentional impacts of marine capture fisheries are widely perceived as extremely wasteful and unnecessary. The potential and actual rate of loss of marine biodiversity is a concern that is currently placed increasingly higher on the agendas of various intergovernmental fora at the global level. Among other things, in the last few years they featured prominently in the Oceans and Fish resolutions of the United Nations General Assembly (UNGA) and in the annual informal consultative process (ICP) on Oceans and the Law of the Sea, established by the UNGA. Biodiversity concerns were also addressed during the Review Conference of the Fish Stocks Agreement 7 (FSA Review Conference) 8 in May 2006 and were the primary focus of the first meeting of the Ad Hoc Open-ended Informal Working Group established by the UNGA to study issues relating to the conservation and sustainable use of 7

8

Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995. In force 11 December 2001, 34 International Legal Materials 1542 (1995); . Report of the Review Conference on the Fish Stocks Agreement (UN Doc. A/CONF.210/2006/15, of 5 July 2006).

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Managing Biodiversity

marine biological diversity beyond areas of national jurisdiction, 9 held in February 2006. In the context of the CBD, 10 discussions took place on marine protected areas (MPAs), 11 with a specific emphasis on MPAs in ABNJ, as well as on the conservation and sustainable use of deep seabed genetic resources in ABNJ. 12 Finally, among the various relevant activities of the United Nations Food and Agriculture Organization (FAO) are the development of guidance on the use of MPAs as a fisheries management tool and on deep-sea fisheries. 13 Various relevant activities have also taken place at intergovernmental fora at the regional level, such as the fora mentioned in Section 2. The central purpose of this article is to identify the main shortcomings in the international legal framework relating to the conservation and sustainable use of marine biodiversity in ABNJ and possible solutions for 9

10 11

12

13

The Report of this meeting is contained in UN Doc. A/61/65, of 20 March 2006. See note 1 above. For the purpose of this article, an MPA is regarded as a spatially defined area of the marine environment, whether in two or three dimensions, where regulation for the purpose of the conservation and sustainable use of marine biodiversity is more stringent than in the adjacent area. Reference should also be made to the definition of an MPA adopted by the General Assembly of the World Conservation Union (IUCN) in Resolution 17.38 (1988), reconfirmed in Resolution 19.46 (1994): “Any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment.” See Doc. UNEP/CBD/WG-PA/1/6, of 20 June 2005, ‘Report of the First Meeting of the Ad Hoc Open-ended Working Group on Protected Areas’; Conference of the Parties (CoP) Decision VIII/21 (2006) ‘Marine and Coastal Biological Diversity: Conservation and Sustainable Use of Deep Seabed Genetic Resources Beyond the Limits of National Jurisdiction’; and CoP Decision VIII/24 (2006) ‘Protected Areas’, in particular paras 35-47. See the Report of the Twenty-Sixth Session of the Committee on Fisheries (COFI), Rome, 7-11 March 2005 (FAO Fisheries Reports No. R780), at paras 83-95 and 100-103. An FAO expert consultation on MPAs for fisheries management took place in June 2006 and an FAO expert consultation on high seas deep-sea fisheries will be convened in November 2006.

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selected shortcomings. The article does not deal with the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, 14 and, in relation to MPAs (in ABNJ), only addresses the international institutional aspects. 15 The focus is moreover limited to marine biodiversity in

ABNJ,

largely

because

for

various

reasons

the

focus

of

intergovernmental fora is directed at ABNJ. This, so it seems, makes reforms of the international legal framework relating to ABNJ the most likely as well. For the purpose of this article, ABNJ include the high seas and the Area as defined in the LOS Convention 16 as well as marine areas adjacent to territory situated south of 60° South, even though the latter are also governed by the various instruments and bodies of the Antarctic Treaty System. The definition of ABNJ adopted in this article therefore includes areas of high seas that are above coastal States’ (outer) continental shelves. 17 As coastal States, in exercising their sovereign rights over their continental shelves, are entitled to regulate certain activities undertaken by third States, these areas of high seas are therefore not entirely ‘beyond national jurisdiction’. Finally, for the purpose of this article, ABNJ also include the air space above them. The next section starts with a brief overview of the current international legal framework relating to the conservation and sustainable use of marine biodiversity

in

ABNJ.

Section

3

then offers

some preliminary

considerations on the reform of this international legal framework. Subsequently, Section 4 elaborates on the need for reform in relation to 14

15

16 17

See Art. 1 of the CBD. This issue is covered by the contributions of M.F. Hayes and F. Millicay. A more comprehensive discussion on the use of MPAs for management purposes is undertaken by K. Cochrane. See note 2 above. Arts 1(1)(1) and 86. Both in cases where a coastal State has not established an exclusive economic zone (EEZ) or where its legal continental shelf extends beyond 200 nautical miles of the baseline in accordance with Art. 76 of the LOS Convention.

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some selected substantive issues, namely discrete high seas fish stocks, deep-sea species, integrated MPAs in ABNJ and, finally, on existing and new rights to conserve marine biodiversity. The article ends with some conclusions.

2. Current International Legal Framework Relating to the Conservation and Sustainable Use of Marine Biodiversity in ABNJ

2.1 General This Section’s overview of the international legal framework relating to the conservation and sustainable use of marine biodiversity in ABNJ is limited to international instruments, intergovernmental organizations (IOs) and their acts that are directly relevant to the main human activities that may or do occur in ABNJ (as listed in Section 1). Obviously, it is not necessary for such instruments, IOs and acts to relate exclusively to ABNJ, as long as these areas are covered. Moreover, while only some of the instruments and acts mentioned in this Section specifically relate to sustainable use of marine biodiversity in ABNJ, all those referred to contribute to the conservation of marine biodiversity. The significance and directness of those contributions varies considerably and is usually closely related to the objective or mandate of an instrument or IO. Of the main legally binding instruments adopted at the global level, the CBD and the LOS Convention - including its two implementation

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Erik Jaap Molenaar

agreements, namely the Part XI Implementation Agreement 18 and the Fish Stocks Agreement - are the main framework treaties. Global treaties specifically related to particular species or groups of species are the CMS, 19 CITES, 20 the ICRW 21 and, in a sense, also the Compliance Agreement 22 . In addition to the IOs that adopted these instruments (e.g. the FAO) as well as the international bodies operating under these instruments (e.g. the CoP under the CBD), special mention should be made of the following IOs that regulate particular human activities that may or do occur in ABNJ: the International Maritime Organization (IMO), the International Civil Aviation Organization (ICAO) and the International Seabed Authority (ISA). A variety of legally binding and non-legally binding instruments and acts have been agreed upon within these IOs with, as mentioned above, varying contributions to marine biodiversity. Mention could be made here of MARPOL 73/78 23 and the concept of particularly sensitive sea areas

18

19

20

21

22

23

Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, New York, 28 July 1994. In force 28 July 1996, 33 International Legal Materials 1309 (1994); . Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 23 June 1979. In force 1 November 1983, 1651 United Nations Treaty Series 355; . Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington, D.C., 3 March 1973. In force 1 July 1975, 993 United Nations Treaty Series 243; . International Convention for the Regulation of Whaling, Washington D.C., 2 December 1946. In force 10 November 1948, 161 United Nations Treaty Series 72; . Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Rome, 24 November 1993. In force 24 April 2003, 33 International Legal Materials 969 (1994); . International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, as modified by the 1978 Protocol (London, 1 June 1978) and as regularly amended. Entry into force varies for each Annex. At the time of writing Annexes I-VI were all in force.

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Managing Biodiversity

(PSSAs) 24 adopted and developed within IMO, and the Regulations on Prospecting and Exploration of Polymetallic Nodules in the Area 25 adopted within the ISA. Also worth mentioning is the London (Dumping) Convention, 26 as amended by the 1996 Protocol 27 . With regard to marine scientific research and hydrographic research, reference can be made to the Intergovernmental Oceanographic Commission (IOC) of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Hydrographic Organization (IHO) respectively, even though these do not have regulatory roles. 28 Finally, special reference should be made to the main relevant nonlegally binding instruments, namely the FAO Code of Conduct, 29 including the various international plans of action and technical guidelines adopted

24

25

26

27

28

29

See IMO Assembly Resolution A.982(24), of 1 December 2005, ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, which inter alia revokes Annex 2 of IMO Assembly Resolution A.927(22), of 29 November 2001 ‘Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’. Doc. ISBA/6/A/18, of 4 October 2000. See Regs 1(5), 3(4)(d)(i)(b), 21(4)(b) and 31-33. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, Mexico-City, Moscow, Washington, 29 December 1972. In force 30 August 1975, 11 International Legal Materials 1294 (1972); . 1996 Protocol, London, 7 November 1996. In force 24 March 2006, . Cf. Arts. 2 and 3 of the IOC Statutes (revised in November 1999; available at ) and Art. 2 of the Convention on the International Hydrographic Organization (Monaco, 3 May 1967. In force 22 September 1970; ). Code of Conduct for Responsible Fisheries. Adopted by the Twenty-eight Session of the FAO Conference, Rome, 31 October 1995, .

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thereunder, and the JPOI, 30 in particular its commitments on reducing loss of biodiversity and the establishment of MPAs. 31 At the regional level, the main instruments and IOs relate to particular species and their habitats (agreements established under the CMS 32 and the NAMMCO Agreement 33 ), to the management and conservation of fisheries resources (i.e. the constitutive instruments of regional fisheries management organizations (RFMOs) 34 ) or more in general to marine environmental protection. Examples of the last category are the OSPAR Convention, 35 the Helsinki Convention 36 and the agreements and action plans established under United Nations Environment Programme (UNEP) Regional Seas Programme 37 . However, the Helsinki Convention and several of the UNEP agreements and action plans do not also cover ABNJ and are therefore not relevant for the purpose of this Section’s overview. Each of the Polar Regions is governed by a regulatory framework but there are significant differences between the two. The Arctic is ‘merely’ governed by the Arctic Environmental Protection Strategy, the work of the

30

31 32 33

34

35

36

37

Plan of Implementation of the World Summit on Sustainable Development, Johannesburg, 4 September 2002; . Paras 32 and 44. See note 19 above. For an overview of these agreements see . Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic, Nuuk, 9 April 1992. In force 8 July 1992, Law of the Sea Bulletin No. 26, 66-68 (1994); . For the purpose of this article, the acronym RFMO is meant to cover ‘arrangements’ in the sense of Art. 1(d) of the Fish Stocks Agreement. Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris, 22 September 1992. In force 25 March 1998, . Note that Annex V to the OSPAR Convention is entitled “on the protection and conservation of the ecosystems and biological diversity of the maritime area”. Convention on the Protection of the Marine Environment of the Baltic Sea Area, Helsinki, 9 April 1992. In force 17 January 2000; . For info see .

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Managing Biodiversity

Arctic Council, 38 the ICES Convention,

39

the NAMMCO Agreement, the

OSPAR Convention the NEAFC Convention 40 and by various bilateral or trilateral cooperative arrangements. By contrast, the Antarctic is governed by the Antarctic Treaty System, which consists of legally binding and nonlegally binding instruments including the Environmental Protocol to the Antarctic Treaty, 41 the CCAMLR Convention 42 and the CCAS 43 . The relatively broad objectives of these ATS instruments and the mandates of the IOs and bodies operating under them are particularly conducive to integrated (cross-sectoral) ecosystem management.

2.2 Some Conclusions An obvious but still very pertinent conclusion of the short overview above is that the current international legal framework relating to the conservation and sustainable use of marine biodiversity in ABNJ is not laid down in a single treaty. Rather, it consists of a multitude of global, regional and bilateral legally binding and non-legally binding instruments and acts by IOs. As a whole, the framework is highly sectoralized and decentralized 38 39

40

41

42

43

For info see . Convention for the International Council for the Exploration of the Sea, Copenhagen, 12 September 1964. In force 22 July 1968, 7 International Legal Materials 302 (1968); . Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries, London, 18 November 1980. In force 17 March 1982, 1285 United Nations Treaty Series 129; . Protocol on Environmental Protection to the Antarctic Treaty, Madrid, 4 October 1991 (Annexes I-IV). In force 14 January 1998; Annex V, Bonn, 17 October 1991 (adopted as Recommendation XVI-10). In force 24 May 2002; Annex VI, Stockholm, 14 June 2005 (adopted as Measure 1(2005)). Not in force. All texts available at . Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980. In force 7 April 1982, 19 International Legal Materials 837 (1980); . Convention for the Conservation of Antarctic Seals, London, 1 June 1972. In force 11 March 1978, 1080 United Nations Treaty Series 176; .

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and suffers as a consequence not only from spatial and substantive gaps but also from actual and potential overlaps. Apart from the Compliance Agreement, the ISA and the latter’s acts, none of the identified global instruments and acts or mandates of global IOs relate exclusively to ABNJ. While the spatial mandates of some RFMOs are primarily aimed at ABNJ, 44 most regional instruments and IOs also do not relate exclusively to ABNJ. Spatial and substantive sectoral gaps exist among other things in ABNJ that are not covered by RFMOs at all or only by RFMOs with a mandate that is limited to ensuring the conservation and sustainable use of certain target species. 45 Similarly, there are large ABNJ that are not covered by regional marine environmental protection instruments. Moreover, the international legal framework relating to marine scientific research, bioprospecting, the laying of submarine cables and pipelines, and the construction of artificial islands in ABNJ - unless for the purpose of the exploration or exploitation of the resources of the Area - currently merely consists of general rights and obligations laid down in the LOS Convention and lacks a regulatory framework under which a global or regional IO has a regulatory mandate that includes (elements of) the conservation of marine biodiversity. The current sectoral governance of the oceans is among other things reflected in the parallel functioning of RFMOs and regional marine 44

45

For instance Arts I and II of the NAFO Convention (Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Ottawa, 24 October 1978. In force 1 January 1979, 1135 United Nations Treaty Series 369; ), Arts 1 and 5 of the NEAFC Convention and Arts 1(l) and 4 of the SEAFC Convention (Convention on the Conservation and Management of the Fishery Resources in the South East Atlantic Ocean, Windhoek, 20 April 2001. In force 13 April 2003, 41 International Legal Materials 257 (2002); ). For a discussion see E.J. Molenaar, “Addressing Regulatory Gaps in High Seas Fisheries”, 20 International Journal of Marine and Coastal Law 533-570 (2005).

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environmental protection instruments and bodies. Apart from the ATS, cooperation between them leaves much to be desired. A similar functional division is also pursued by the LOS Convention, which deals with the protection and preservation of the marine environment primarily in Part XII and with the conservation and utilization of marine living resources primarily in Part V and Section 2 of Part VII. However, the disadvantages of this traditional division of obligations under the LOS Convention are to some extent now addressed by the overarching obligations on the conservation and sustainable use of biodiversity under the CBD. 46 These latter obligations are also applicable to ABNJ, even though only related to processes and activities. 47

3. Reform of the International Legal Framework: Preliminary Considerations

3.1. Introduction The logical point of departure in a discussion on the reform of the international legal framework relating to conservation and sustainable use of marine biodiversity in ABNJ is to assess the need for reforms in light of, inter alia, the threats to marine biodiversity in ABNJ. This is addressed in subsection 3.2. If the need for reform has indeed been ascertained, attention shifts to the form and level of reform, discussed in subsection 3.3. This phase includes among other things a cost-benefit analysis of various options, partly in light of the severity of the threat to marine biodiversity 46

47

At the time of writing, participation in the CBD was wider than in the LOS Convention. See in particular Arts 3, 4, 5, 7(c), 8(l) and 22 of the CBD.

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and the urgency of reform. The outcome of this phase may well be that reform should not be undertaken. Section 4 examines the need for reform in relation to some selected substantive issues.

3.2. The Need for Reforms In addition to the selected substantive issues examined in more detail in Section 4, one obvious shortcoming of the international legal framework identified in subsection 2.2 is spatial and substantive gaps in terms of marine capture fisheries. The need to establish new RFMOs or arrangements and to broaden the mandate and enhance the performance of existing RFMOs is widely recognized. 48 Recent initiatives to address these shortcomings include the commencement of a negotiation process for the establishment of RFMOs in the Southern Pacific 49 and in the North West Pacific, 50 initiatives to reform the NAFO Convention 51 and the NEAFC Convention 52 and self-assessments of performance 53 . These latter initiatives are a direct response to the present troublesome state of marine capture 48 49

50

51 52

53

For some info see Molenaar, note 45 above, at pp. 540-545 and 548-551. For some info see Molenaar, note 45 above, at pp. 542-544 and . An informal meeting attended by delegations from Japan, the Russian Federation and South Korea was held between 11-13 April 2006 in Tokyo, Japan. The First Intergovernmental Meeting on Establishment of [a] New Mechanism for Management of High Seas Bottom Trawling in the North Western Pacific Ocean was held between 22-24 August 2006, also in Tokyo. In addition to the 3 States mentioned earlier, the United States (as a coastal State) also attended (Doc. NWPBT/01/Rec rev2 (on file with author) and information provided by C. Ahn, Ministry of Maritime Affairs and Fisheries of South Korea, August 2006; see also Doc. A/CONF.210/2006/15, note 8 above, at p. 13, para. 61). See note 44 above. See note 40 above. Cf. Doc. A/CONF.210/2006/15, note 8 above, at p. 32, para. 9. Both the International Commission for the Conservation of Atlantic Tunas (ICCAT) and NEAFC have already started such assessments (cf. Doc. A/CONF.210/2006/15, note 8 above, at p. 19, para. 88).

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fisheries worldwide and acknowledge the substandard performance of these (and other) RFMOs, notwithstanding the many other causes for the current state of marine capture fisheries, such as illegal, unreported and unregulated (IUU) fishing. Subsection 2.2 also ascertained that many ABNJ are not covered by regional marine environmental protection instruments and bodies. Possibly, the mandate and performance of those that do cover ABNJ are in need of improvement as well. 54 Also lacking are regulatory frameworks with competent IOs for certain human activities - such as marine scientific research - that are carried out in ABNJ, if unrelated to the exploration or exploitation of the resources of the Area. There may well be a need for reform of the international legal framework on these aspects. 55 The form and level of such reform may then be guided by the identified need to move from sectoral governance towards integrated ecosystem-based oceans management. A true merger of RFMOs and regional marine environmental protection bodies seems to be an idea of the distant future, however.

3.3. The Form and Level of Reforms In view of the decentralized nature of international law and the absence of hierarchy among its forms/manifestations as well as its law-making processes, particular care should be taken to ensure that proposed reform minimizes competition or overlap with existing legal regimes. This is especially pertinent with regard to the European Union (EU) proposal to commence negotiations on an Implementation Agreement to the LOS Convention, whose main objective would be:

54 55

See also Gjerde, note 4 above, at pp. 45-46. See UN Doc. A/61/65, note 9 above, at p. 8, para. 27 and p. 17, paras 65-66 and Gjerde, note 4 above, at p. 45.

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conservation and management of marine biological diversity, including the establishment, on an integrated, scientific and precautionary basis, of marine protected areas in areas beyond national jurisdiction. 56 Many States are not convinced of the need for such an Implementation Agreement at all and feel that negotiations will consume much time, money and effort that could be better used, especially at the regional level. 57 Some may even argue that the proposal for, and the negotiation of, an Implementation Agreement is a deliberate ploy to avert reforms from where they are needed most: at the regional level. Much of this criticism is motivated by strongly held opinions on the various mandates of relevant international organizations and their primacy vis-à-vis each other. Some States with significant fisheries interests strongly guard the influence including in decision-making processes - they currently have at the regional level. They fear that their less significant influence - including in decisionmaking processes - at the global level, will ultimately lead to a repetition of the history of the IWC. While the IWC was intended to be a science-based governance body it has become a conservation body where the decisionmaking procedure allows States without any intention to engage in exploitation to base decisions primarily on political, cultural or ethical considerations. These States therefore see the aforementioned reform at the global level as an attempt to ensure that the interests of conservation of marine biodiversity or non-utilization of marine living resources become superior to the socio-economic interests of utilization as well as a threat to science-based fisheries management.

56

57

See the Annex to the Statement by Austria, on behalf of the EU, at the 7th Meeting of the ICP (2006). See also UN Doc. A/61/65, note 9 above, at p. 8, para. 25. See UN Doc. A/61/65, note 9 above, at p. 15, para. 55.

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4. Reform of the International Legal Framework: Selected Substantive Issues 4.1 Discrete High Seas Fish Stocks The term ‘discrete high seas fish stocks’ 58 has in recent years been used to denote fish stocks that occur 59 exclusively on the high seas and not within adjacent maritime zones of coastal States. While discrete high seas fish stocks are currently covered by Section 2 of Part VII of the LOS Convention and other global legally binding and non-legally binding international instruments, 60 they are not covered by the Fish Stocks Agreement. 61 This gap in the global legal framework has attracted significant attention as a consequence of bottom trawling for deep-sea species, which also target discrete high seas fish stocks.

58

59

60

61

For an overview of discrete high seas fish stocks see UN Doc. A/CONF.210/2006/1, of 4 January 2006, ‘Report submitted in accordance with paragraph 17 of General Assembly resolution 59/25 of 17 November 2004, to assist the Review Conference to implement its mandate under paragraph 2, article 36 of the United Nations Fish Stocks Agreement - Report of the Secretary-General’, at pp. 23-26, paras 104-114. The verb ‘occur’ is chosen to maintain consistency with the wording of Art. 63 of the LOS Convention, even though it may not always offer fisheries management authorities and others sufficient guidance for the classification of stocks. It is submitted that the discreteness or not of a stock depends first of all on the significance of transboundary effects of exploitation (for a discussion see E.J. Molenaar, “The South Tasman Rise Arrangement of 2000 and other Initiatives on Management and Conservation of Orange Roughy”, 16 International Journal of Marine and Coastal Law 77-118 (2001), at pp. 8589). E.g. the Compliance Agreement, the Code of Conduct and its international plans of action. For an alternative view see M.W. Lodge and S. N. Nandan, “Some Suggestions Towards Better Implementation of the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks of 1995”, 20 International Journal of Marine and Coastal Law 345-379 (2005), at p. 371.

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The term discrete high seas fish stocks does not seem to have been defined in an international instrument. The description above implicitly uses the definition of ‘fish’ in Article 1(1)(c) of the Fish Stocks Agreement, by which fish “includes molluscs and crustaceans except those belonging to sedentary species as defined in article 77 of the [LOS] Convention”. However, the use of this definition of fish for the purpose of discrete high seas fish stocks needs to be carefully considered in light of the fact that the target species covered by the constitutive instruments of all present nontuna RFMOs and Arrangements, except for the current text of the NEAFC Convention, explicitly or potentially includes all marine living resources or explicitly includes sedentary species as defined in Article 77(4) of the LOS Convention. 62 As reform should avoid legal gaps in the global legal framework and should also aim for consistency with the regional legal framework, it would be preferable to also include sedentary species in a definition of fish used in a definition of discrete high seas fish stocks. 63 But this would not only broaden the species coverage but also the spatial coverage. While outer continental shelves were already excluded due to the sovereign rights of coastal States over sedentary species, the spatial scope would be broadened by the inclusion of sedentary species occurring in the Area. Instead of applying to discrete high seas fish stocks, it would apply to fish stocks discrete to ABNJ. The need to address the gap of discrete high seas fish stocks in the global legal framework has been recognized repeatedly during the last few 62

63

Cf. E.J. Molenaar, “Current Legal and Institutional Issues Relating to the Conservation and Management of High Seas Deep Sea Fisheries”, background paper prepared for the FAO Expert Consultation on Deep Sea Fisheries on the High Seas, Bangkok, 21-23 November 2006, at subsections 3.2 and 4.2.1. If that option is pursued, however, it seems also necessary to incorporate a definition of ‘fishing activities’ that ensures that marine genetic resources and bioprospecting are excluded from the scope of the instrument. Such definitions can be found in many of the constitutive instruments of the newer RFMOs.

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years, for instance at the St. John’s Conference in May 2005. 64 Subsequently, in its 2005 Fish Resolution the UNGA encouraged “States, as appropriate, to recognize that the general principles of the [Fish Stocks Agreement] should also apply to discrete fish stocks in the high seas”. The exact same wording was chosen by the FSA Review Conference in May 2006. 65 Little or no support existed for a call to ensure that the provisions of the Fish Stocks Agreement apply to all stocks. 66 The lack of support for advocating such an approach can be explained by the special character of the FSA Review Conference as well as the understandable priority given to preserving the package deal of the Fish Stocks Agreement and consolidating universal participation in it. 67 Moreover, there was sufficient support for the view that [RFMOs] with competence to regulate straddling fish stocks have the necessary competence to conserve and manage high-seas discrete stocks. There is no obstacle for such [RFMOs] to adopt management measures in respect of such stocks in accordance with the general principles set forth in the [Fish Stocks Agreement]. 68 In fact, the objectives of the RFMOs and Arrangements that currently regulate straddling fish stocks within the meaning of Article 63(2) of the LOS Convention, do not contain wording related to the classification of

64

65 66 67

68

See para. 13(A) of the Ministerial Declaration adopted at the ‘Conference on the Governance of High Seas Fisheries and the UN Fish Agreement: Moving from Words to Action’, available at . Cf. Doc. A/CONF.210/2006/15, note 8 above, at p. 31, para. 2. See also Lodge and Nandan, note 61 above, at pp. 369-373. Japan’s ratification of the Fish Stocks Agreement on 7 August 2006 is an important step towards more universal participation. Doc. A/CONF.210/2006/15, note 8 above, at p. 33, para. 16. Cf. also Lodge, note 3 above, at p. 307. For a different view see M. Hayashi, “Global Governance of Deep-Sea Fisheries”, 19 International Journal of Marine and Coastal Law 289-316 (2004), at pp. 295-297.

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stocks. This is so for the CBS Convention, 69 CCAMLR Convention, 70 the GFCM Agreement, 71 the NAFO Convention, 72 the NEAFC Convention 73 and the SEAFC Convention. 74 The STR Arrangement 75 is a special case because Australia and New Zealand were unable to agree as to whether orange roughy in the regulatory area was a discrete high seas fish stock or not. 76 It is also noteworthy that the objective of the SIOF Agreement 77 is similar to those of the other RFMOs and Arrangements, even though its negotiation process was primarily aimed at establishing a regulatory framework for discrete high seas fish stocks. 78 This similarity also exists with respect to the objectives of the SEAFC Convention and the Draft SPOF Agreement, 79 even though 69

70 71

72 73 74 75

76 77

78

79

Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, Washington, 16 June 1994. In force 8 December 1995, 34 International Legal Materials 67 (1995); . See in particular Art. I(1). Agreement for the establishment of a General Fisheries Council for the Mediterranean (Rome, 24 September 1949. In force 20 February 1952, 126 United Nations Treaty Series 239). Amendments adopted by the FAO Council at its 113th Session in November 1997 entered into force on 29 April 2004; amended version available at ). See the Preamble. See Art. I(4). See Art. 1(2). See note 44 above. See Art. 1(l) and (n). Arrangement between the Government of Australia and the Government of New Zealand for the Conservation and Management of Orange Roughy on the South Tasman Rise. Signed for New Zealand on 17 February 2000 and for Australia on 25 February 2000. In effect on 1 March 2000; text at 16 International Journal of Marine and Coastal Law 119-124 (2001). See the Preamble. Southern Oceans Fisheries Agreement, Rome, 7 July 2006. Not in force, text on file with author. See Arts 1(c) and (f) and 3. For some information about the complex negotiation process of the SIOF Agreement see Molenaar, note 59 above, at pp. 109-115 as well as Molenaar, note 45 above, at pp. 541-542. A formal account of the negotiation process is incorporated in the ‘Final Act of the Conference on the Southern Indian Ocean Fisheries Agreement’, which was adopted on 7 July 2006. Chair’s Draft Pacific Ocean Regional Fisheries Management Agreement of 8 September 2006, text at . See Art. 2.

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both were/are negotiated in full awareness of the presence of discrete high seas fish stocks in the (envisaged) regulatory area. 80 It is of course too early to say anything about the objective of a possible NWPOF Agreement 81 . But it is worth noting that in the envisaged regulatory area there may well be discrete high seas fish stocks of pelagic armourhead (Pseudopentaceros wheeleri and P. richardsoni), alfonsino (Beryx splendens) and oreo dories (Allocyttus spp., Neocyttus spp. and Pseudocyttus spp.). 82 The fact that the SEAFC Convention, the SIOF Agreement and the Draft SPOF Agreement 83 were (are) negotiated in full awareness of the presence of discrete high seas fish stocks in the (envisaged) regulatory area is also important because (a) they were (are) negotiated after the adoption of the Fish Stocks Agreement and (b) their texts draw heavily on the Fish

80

81 82

83

As regards the SEAFC Convention, see A. Jackson, “The Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean 2001: An Introduction”, 17 International Journal of Marine and Coastal Law 33-77 (2002), at pp. 38 and 47. As regards the Draft SPOF Agreement, see Doc. SP/01/WP1 (February 2006), at pp. 1-2. Note also that Art. 26(2) of the Draft SPOF Agreement refers explicitly to Arts 116-119 of the LOS Convention. This could be primarily related to the issue of nonparties to the Fish Stocks Agreement, to the issue of high seas discrete fish stocks or to both. North West Pacific Ocean Fisheries Agreement. Information provided by C. Ahn, Ministry of Maritime Affairs and Fisheries of South Korea, August 2006. See also the ‘Report submitted in accordance with paragraph 17 of General Assembly resolution 59/25 of 17 November 2004, to assist the Review Conference to implement its mandate under paragraph 2, article 36 of the United Nations Fish Stocks Agreement - Report of the Secretary-General’ (UN Doc. A/CONF.210/2006/1, of 4 January 2006), at pp. 25-26, para. 113. The Draft SPOF Agreement refers explicitly to the LOS Convention and the Fish Stocks Agreement in its Preamble. By contrast, the Report of the ‘First International Meeting on the Establishment of the proposed South Pacific Regional Fisheries Management Organisation’ (February 2006) merely contains a footnote with the following text: “Participants understood that the new instrument should, as far as possible, avoid duplication and overlap with existing international instruments and should be consistent with [the] international law relating to law of the sea” (at para. 6(i)).

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Stocks Agreement. The GFCM Agreement cannot be grouped together with these. 84 The STR Arrangement is once again a special case because it is non-legally binding and only Australia was a party to the Fish Stocks Agreement at the time when it signed the Arrangement. It nevertheless draws on the Fish Stocks Agreement in spite of the disagreement as to stock classification. At the time of writing, all the participants in the NWPOF Agreement initiative, except South Korea, were party to the Fish Stocks Agreement. The likelihood that the Fish Stocks Agreement will be extensively drawn on would therefore seem considerable. The constitutive instruments of various RFMOs and Arrangements seem to indicate that parts of the Fish Stocks Agreement are, in various ways, potentially already being applied to discrete high seas fish stocks. The objectives of relevant RFMOs and Arrangements are formulated in a general way, without classifying stocks or species as straddling or discrete high seas. It seems, therefore, that the competence of all these RFMOs and Arrangements thereby covers discrete high seas fish stocks as well. There are no indications that these RFMOs and Arrangements, in performing their functions, explicitly or implicitly distinguish between straddling and discrete high seas fish stocks. Perhaps apart from the issue of the allocation of fishing opportunities, such a distinction would also not be warranted by scientific, pragmatic or other factors. However, this state practice ‘merely’ consists of the texts of constitutive instruments. Arguably, state practice has more weight if it consists of actual conservation and management measures that apply explicitly or implicitly to discrete high seas fish stocks and which are adopted and applied in accordance with the Fish Stocks Agreement. 84

While the 1997 amendments to the GFCM Agreement were also approved after the adoption of the Fish Stocks Agreement, the current text of the GFCM Agreement does not draw on the Fish Stocks Agreement and the 1997 amendments were also not adopted in the face of full awareness of the presence of discrete high seas fish stocks in the regulatory area.

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The cited view expressed at the FSA Review Conference suggests that the international community currently has a preference for a regional solution for the identified gap in the global international legal framework. State practice through RFMOs and Arrangements would ensure that all members and participants are under a legal obligation to apply the Fish Stocks Agreement mutatis mutandis equally to discrete high seas fish stocks. However, as such a regional approach has various shortcomings, the international community may still decide on developing a legally binding international instrument in parallel in a less sensitive setting than the FSA Review Conference. 85 It should finally be mentioned that the proposal put forward at the FSA Review Conference for FAO to develop technical guidelines on the conservation and management of discrete high seas fish stocks, found insufficient support. One observer openly wondered what the benefit of such guidelines would be. 86 Provided that the FAO revises its global fisheries statistics database to facilitate the identification of potential discrete high seas fish stocks, 87 this is an understandable concern. As most discrete high seas fish stocks are in fact deep-sea species, 88 it would be better for the FAO to focus on deep-sea species and fisheries. This is examined in more detail in subsection 4.2. 4.2. Deep-Sea Species and Fisheries The current debate on bottom trawling for deep-sea species has arisen out of three different main concerns. First, in certain circumstances bottom 85

86 87

88

For some of the pros and cons see the analysis by Molenaar, note 62 above, at subsection 4.2.1. Cf. Doc. A/CONF.210/2006/15, note 8 above, at p. 14, paras 64-65. As recommended by the Conference at p. 35, para. 19 of Doc. A/CONF.210/2006/15, note 8 above. Cf. UN Doc. A/CONF.210/2006/1, note 58 above, at p. 23, para. 104.

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trawling can be destructive due to high by-catch and serious impacts on the benthos. Second, many deep-sea species are long-lived and slow-growing species with late maturity and low fecundity and some species or populations have small ranges of distribution or aggregate periodically, for instance around seamounts. The consequential high risk of over-exploitation and collapse of stocks is further increased due to the fact that scientific understanding of the biological characteristics of many deep-sea species is generally very limited. Third, some of the deep-sea fisheries on the high seas - whether targeting straddling or discrete high seas fish stocks - have occurred and are still occurring despite the absence of adequate international regulation. The fishery for orange roughy in the South-west Indian Ocean, which probably had its peak in 2000 or 2001, is a notorious example of a deep-sea fishery for a discrete high seas fish stock that completed the ‘boom-and-bust’ cycle well before a regional fisheries management mechanism was in place. In fact, it was still not in place when this article was written. 89 The push for an UNGA moratorium on high seas bottom trawling 90 attempts to address all three of these concerns, even though the side-effects of this fishing practice are prima facie the primary focus. Whether or not some form of an UNGA moratorium on high seas bottom trawling will be adopted, there still remains a need to address the high risk of overexploitation of deep-sea species. In view of FAO’s technical and scientific expertise in the sphere of marine capture fisheries, it seems only logical that the FAO undertakes this task. One option, which is already under way, 91 is to develop guidance on deep-sea species and (new and exploratory) deep89 90

91

See note 78 above. See, inter alia, Recommendation 3.099 adopted by the IUCN World Conservation Congress in 2004 (available at ). See note 13 above.

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sea fisheries, possibly in the form of Technical Guidelines in the framework of the Code of Conduct. It would seem to be especially pertinent for these Guidelines to determine if Annexes I and II to the Fish Stocks Agreement need adjustment in view of the characteristics of deep-sea species and (new and exploratory) deep-sea fisheries. 92 The international community may of course feel that the risk of loss of marine biodiversity posed by deep sea fisheries is so high that reliance on voluntary implementation of non-legally binding FAO instruments by coastal States, flag States, RFMOs and other actors is not regarded as sufficient. Some States already felt that way during COFI’s 26th Session in 2005. 93 As regards the substance, the instrument may as a minimum contain the suggestions made above in relation to the collection and sharing of data and the precautionary approach. More in general, in view of the decentralized nature of international law and the absence of hierarchy among its forms/manifestations as well as its law-making processes, particular care should be taken to ensure that proposed reform minimizes competition or overlap with existing legal regimes. The most directly relevant legal regimes are of course existing RFMOs and Arrangements. On the other hand, it may also be argued that the conservation and management of deepsea fisheries and species would benefit from global regulation as well. This could take various forms. One form would be for the instrument to mandate a new or existing global body to assess the risk of fishing for certain deep-

92

93

Account may here also be taken of the work within the International Council for the Exploration of the Sea (ICES; as advocated in UN Doc. A/CONF.210/2006/1, note 58 above, at p. 24, para. 108) and the work of the FAO Ad Hoc Expert Advisory Panel for Assessment of Listing Proposals for Commercially-Exploited Aquatic Species (see FAO Fisheries Reports No. R780, note 13 above, at p. 9, para. 54). FAO Fisheries Reports No. R780, note 13 above, at p. 14, para. 86.

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sea species or the risk of using certain fishing practices. Of the existing global bodies, possible candidates would be COFI, the UNGA or the UN Trusteeship Council 94 . One step further would be to give that new or existing body the competence to regulate deep-sea fisheries globally. 95 However, in view of the fierce opposition by some States to blanket moratoria and a species-byspecies (instead of a stock-by-stock) approach - inspired by the moratorium on commercial whaling, the listing of certain whale species on the Annexes of CITES and the suitability of the CITES listing criteria to commercially exploited aquatic species - this alternative is not likely to find sufficient support. Possibly, however, support would be broader in case the global body is only given a mandate by default, namely in the absence of an RFMO or Arrangement with spatial and substantive competence. 96 It is worth noting that a mandate by default-rationale is also a crucial element in current proposals by various States for a recommendation by the UNGA on high seas bottom trawling on the high seas.

94

95

96

P. Sands, Principles of International Environmental Law (Cambridge, Cambridge University Press, 2nd edition, 2003), p. 94 reports that President Gorbachev of the Soviet Union proposed in 1990 to expand the function of the Council “to include responsibility for environmental protection in areas beyond national jurisdiction, the global commons.” Also noteworthy is Malta’s proposal to change to role of the Council into a guardian and trustee of the resources of the global commons (as reported by S. Busuttil and K. Yazaki, “Preface” in A. Agius and S. Busuttil with T. Kim and K. Yazaki (eds) Future Generations and International Law (London, Earthscan Publication: 1998), at p. xi). See also M.W. Lodge, “Improving International Governance in the Deep Sea”, 19 International Journal of Marine and Coastal Law 299-316 (2004), at p. 307 and R. Shotton and M. Haward, “Requirements for Managing Deep-Sea Fisheries”, in R. Shotton (ed.) Deep Sea 2003: Conference on the Governance and Management of Deep-sea Fisheries (FAO Fisheries Proceedings, FAO: 2005), Part 1: Conference reports, at pp. 704-709. See also note 116 below and accompanying text.

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4.3. Integrated Marine Protected Areas in ABNJ The current interest for MPAs in ABNJ in various global fora is to a large extent linked to bottom trawling for deep-sea species. As bottom trawling can have significant impacts on the benthos - for instance coldwater coral reefs - spatial regulation is a logical remedy. Concern has also been expressed on the impacts of marine scientific research and bioprospecting on hydrothermal vents. Apart from the special case of the Mediterranean, where many States have not established EEZs or exclusive fishery zones, interest in MPAs in ABNJ was only marginal a few years ago. It should be recognized that, in view of the definition of MPAs used in this article, 97 several international instruments already provide for the designation of MPAs with more stringent regulation therein, albeit only sectorally. For example, special areas under MARPOL 73/78, PSSAs and spatial conservation and management measures (e.g. closed areas) adopted by RFMOs can include ABNJ. It should also be noted that the Commission for the Conservation of Antarctic Living Resources (CCAMLR) is currently developing a system of marine protected areas 98 and that the establishment of criteria and procedures for closing areas to fisheries is underway within in the North-East Atlantic Fisheries Commission (NEAFC) 99 . It is submitted that the mandate and legitimacy of the IMO and RFMOs are in principle beyond doubt and that their spatial measures are therefore capable - at least potentially - of affecting the rights and freedoms of third States, even if not through non-flag enforcement on the high seas. By

97 98

99

See note 11 above. See the Report of the 24th Annual CCAMLR Meeting (2005) (Doc. CCAMLRXXIV), at paras 4.12-4.18. See the Final Report of the Working Group on the Future of NEAFC (7-9 February 2006), at pp. 4-6.

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contrast, the current international legal framework relating to ABNJ lacks both a mandate and a process for the designation of integrated MPAs in ABNJ as well as for the regulation of all human activities therein, for the purpose of the conservation and sustainable use of marine biodiversity. 100 In the absence of these, designation of MPAs in ABNJ and regulation of activities therein lack legitimacy and make interference with the freedoms of the high seas by third States unjustifiable, except if interference is based on rights under customary international law. 101 A good example, even though highly commendable, is the recent implicit designation by four fishing companies cooperating within the Southern Indian Ocean Deepwater Fisher’s Association (SIODFA) of 11 MPAs in ABNJ of the southern Indian Ocean where bottom trawling is halted. 102 While support for the need for integrated MPAs in ABNJ seems to be growing, there is still no certainty as to where the criteria for the designation of MPAs and representative networks of MPAs, or the process for their designation should be developed. States that support the EU proposal for an Implementation Agreement to the LOS Convention probably see integrated MPAs in ABNJ as one of its main elements. 103 The already mentioned need to minimize competition or overlap with existing legal regimes, in particular RFMOs, is especially pertinent for integrated MPAs in ABNJ. A source of inspiration and guidance could be the way in which the identification and designation of PSSAs are distinguished from the adoption of associated protective measures therein as well as the

100

101 102 103

See also T. Scovazzi, “Marine Protected Areas on the High Seas: Some Legal and Policy Considerations”, 19 International Journal of Marine and Coastal Law 1-19 (2004). For an example see note 159 below and accompanying text. See the news release of 6 July 2006 at . See UN Doc. A/61/65, note 9 above, at pp. 16-17, paras 59-62 and Doc. A/CONF.210/2006/15, note 8 above, at pp. 33-34, paras 15 and 18(e).

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respective roles of the Committee on Environmental Protection (CEP) and CCAMLR in relation to the designation of Antarctic Specially Protected Areas and Antarctic Specially Managed Areas containing marine areas under Annex V to the Protocol on Environmental Protection to the Antarctic Treaty. 104

4.4. Existing and New Rights to Conserve Marine Biodiversity 4.4.1. Introduction Reforms of international law are above all a matter of striking an acceptable balance between opposing needs and interests that exist at a given time in the international community. A number of acceptable balances must be struck to successfully reform the international legal framework relating to the conservation and sustainable use of marine biodiversity in ABNJ. At a high level, reform is guided by the universal but flexible goal of sustainable development and thereby pursues an equitable balance between socio-economic interests and the interests of marine biodiversity of present and future generations. As reform should minimize competition or overlap with existing legal regimes, this balance includes an equitable balance between new and existing legal regimes at the global and regional level. It is submitted that another necessary balance that such reform should strike is that between rights and obligations of States to conserve marine biodiversity. In view of the current rate of loss of marine biodiversity,

104

See Art. 6(2) of Annex V, the procedure laid down in ATCM (Antarctic Treaty Consultative Meeting) Decision 9 (2005) ‘Marine Protected Areas’ and ATCM Doc. XXIX/WP.4 (2006) “Marine Protected Areas (MPAs) - Tools for Protection and Management’.

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reform should not just be limited to the traditional approach of strengthening, deepening and broadening obligations but should be balanced with optimizing use of existing rights and/or granting new rights to ensure that the overarching balance is achieved. It is nevertheless acknowledged that many States regard the granting of new rights - to other States, as it were - as more far-reaching restrictions on their sovereignty, sovereign rights or jurisdiction in comparison with obligations - imposed on themselves, as it were. The inclusion of the nonflag State enforcement rights pursuant to Articles 21 and 22 of the Fish Stocks Agreement, even though quite limited and carefully circumscribed, and similar rights in the constitutive instruments of several RFMOs 105 were very controversial and contributed considerably to not only delaying the negotiation processes but also to the present limited participation in the treaties. Moreover, at the time of writing, no State seemed to have used these rights and no RFMO had yet adopted procedures that would allow high seas enforcement against ships of non-members of which the captain or the flag State had not given their consent. 106 Likewise, few States seem to have adopted legislation enabling them to exercise the right granted to port States pursuant to Article 218 of the LOS Convention, namely to institute proceedings over illegal discharges occurring beyond its own maritime zones. This right does not seem to have actually been ever used

105

106

See Art. 16 of the SEAFC Convention, note 44 above, and Art. 26 of the WCPFC Convention (Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Honolulu, 5 September 2000. In force 19 June 2004, 40 International Legal Materials 277 (2001); ). For a discussion see R. G. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Leiden/Boston, Martinus Nijhoff Publishers: 2004).

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either. 107 However, the mere existence of these rights and their potential use may still have a positive impact on compliance. 108 Moreover, the fact that these rights have not or hardly been used cannot serve as an argument against the incorporation of rights per se. Their limited use may just as well be due to the constraints to which the right is subject. The subsections below examine the need for optimizing use of existing rights and/or granting new rights through a general but explicit right of States to marine biodiversity, rights of non-user States in RFMOs, the right to under-utilize allocations of fishing opportunities, coastal State jurisdiction over the (outer) continental shelf, port State jurisdiction and non-flag States and the genuine link.

4.4.2. A General but Explicit Right of States to Marine Biodiversity

The current international legal framework relating to the conservation and sustainable use of marine biodiversity (in ABNJ) does not contain a general but explicit right of States to marine biodiversity. What is meant is a right that explicitly acknowledges the various values associated with (marine) biodiversity, 109 including conservation for the purpose of longterm sustainable use as well as non-use for an indefinite period for other reasons. Moreover, instead of individuals or future generations, such a right would be granted to States, whether acting on behalf of their present generations or as guardians or custodians on behalf of their future generations. 107

108 109

For a discussion see E. J. Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage”, Ocean Development & International Law (2006; forthcoming). See also note 115 and accompanying text. See note 1 above and accompanying text.

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Even though such a general but explicit right is lacking, the current international legal framework contains many implicit acknowledgments of such a right. This is for instance implied in the general and specific obligations on the protection and preservation of the marine environment and on the conservation and sustainable utilization of marine living resources laid down in the LOS Convention. These obligations are accompanied with rights for the same purposes, which are implied in these obligations or in the recognition of sovereignty, sovereign rights, jurisdiction or freedoms of States. Moreover, as regards marine mammals, Article 65 explicitly recognizes the right of coastal States and the appropriate international organization to regulate the exploitation of marine mammals more strictly than provided by Part V of the LOS Convention. 110 A right to marine biodiversity is similarly implied in one of the objectives of the CBD, namely the conservation of biodiversity. While the CBD lacks a general obligation to conserve biodiversity, it contains a large number of specific obligations to conserve components of biodiversity and its Preamble affirms that the conservation of biodiversity is the “common concern of humankind”. Mention should also be made to relevant human rights or entitlements, whether laid down in national legislation or international instruments 111 . Also, while the responsibility of the international community and arguably also individual States to take account of the interests of future generations is

110

111

This should be read as a reference to the objective of optimum utilization as laid down in Art. 62(1). For instance, Principle 1 of the 1972 Stockholm Declaration on the Human Environment, which begins with: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being (…)”.

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not beyond challenge, 112 no legally binding global instrument today contains an explicit right of future generations. Some nevertheless advocate the view that intergenerational rights and equity are already rooted in international law. 113 For some, the incorporation of a general right for States to marine biodiversity in the international legal framework - for instance in the body of, or Preamble to, the proposed Implementation Agreement to the LOS Convention - is merely a matter of semantics that changes nothing to the substance of the existing international legal framework. However, in view of the objective of striking an equitable balance between socio-economic interests and the interests of marine biodiversity of present and future generations, those interests should, as a matter of principle, be on equal footing. Some States may argue that this is not currently the case. For instance, the right to development and the principle of permanent sovereignty over natural resources are qualified by environmental considerations, but not the other way around. 114 Moreover, formulating issues as rights instead of obligations is likely to enhance the extent to 112

113

114

This view is inter alia held by P. W. Birnie and A. E. Boyle, International Law and the Environment (Oxford University Press: 2002), at p. 90 and P. Sands, “Protecting Future Generations. Precedents and Practicalities”, in A. Agius and S. Busuttil with T. Kim and K. Yazaki (eds) Future Generations and International Law (London, Earthscan Publication: 1998), pp. 83-91, at p. 86. A number of legally binding and non-legally binding international instruments contain such a duty in their Preamble or body. See for instance Principle 3 of the 1992 Rio Declaration on Environment and Development, the Preambles to the ICRW and the CBD. For other examples see the Appendix included in Agius et al., this note, at pp. 167-176. E.g. by E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Tokyo, United Nations University and New York, Transnational Publishers: 1989) at p. 95 and E. Brown Weiss, “Our Rights and Obligations to Future Generations for the Environment”, 84 American Journal of International Law 198-207 (1990), at p. 200. E.g. Principle 3 of the Rio Declaration on Environment and Development, UNGA Resolution 1803/XVII and Art. 194 of the LOS Convention.

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which individual States and the international community are mobilized to ensure that their rights are respected. 115 This could, for example, encourage States individually and through RFMOs to consider the participation of non-user States, as discussed below. It goes without saying, however, that it would be better if the advocated right would be complemented by more specific rights and tools. One example would be a global body with a mandate by default (i.e. in the absence of an RFMO with spatial and substantive competence), which would act as a custodian on behalf of the international community. 116 Other suggestions are explored in the following subsections.

4.4.3. Rights of Non-user States in RFMOs The Fish Stocks Agreement recognizes the right of States with a ‘real interest’ in relevant fisheries to become a member to the relevant RFMO pursuant to Article 8(3). Even though the notion of real interest is not defined in the Fish Stocks Agreement, it may have been included to avoid a situation as currently exists under the ICRW, which does not impose restrictions on accession or participation. 117 This allows States that have no intention to engage in whaling for whatever purpose, to participate in decision-making within the IWC. This has led to a situation where qualified 115

116 117

Note also that L. Gündling, “Our Responsibility to Future Generations”, 84 American Journal of International Law 207-212 (1990), at p. 210 acknowledges that “rights of future generations have “greater moral force” than mere obligations of present generations.” Also, Birnie and Boyle, note 112 above, at p. 251 share the view that creating rights is not the same as introducing more protective rules for the reason that rights introduce a flexibility and open-endedness that no rule can capture. See also note 96 above and accompanying text. See also T. Henriksen, G. Hønneland and A. Sydnes, Law and Politics in Ocean Governance. The UN Fish Stocks Agreement and Regional Fisheries Management Regimes (Martinus Nijhoff Publishers, Leiden/Boston: 2006), at p. 19. But see the complex decisions of the IWC on the reservation attached to the Icelandic instrument of accession to the ICRW.

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majority voting allows non-user States to block the lifting of the moratorium on commercial whaling even though limited whaling on certain whale populations would in principle be sustainable. CCAMLR seems to be the only RFMO that allows States without an intention to engage in commercial fishing to become members and participate

in

conservation.

118

decision-making

on

fisheries

management

and

It should be noted, however, that CCAMLR is a unique

case due to its ecosystem mandate and its incorporation in the Antarctic Treaty System. Even though CCAMLR uses consensus decision-making, non-user States do not seem to have abused their voting power to block science-based conservation measures. Other exceptions to the general rule are the Northwest Atlantic Fisheries Organization (NAFO), even though participation in the Fisheries Commission is only open to user States - or at least States that have an intention to use - and ICCAT. 119 However, the membership of ICCAT does not currently seem to include non-user States. This practice notwithstanding, the fact remains that the notion of real interest is not defined in the Fish Stocks Agreement and thereby open to interpretation. In the context of NAFO, the United States has for instance argued that [a] state could in principle have a real interest in a managed fishery that did not include a direct fishing interest, such as concern for a bycatch species or for the environmental effects of using a particular fishing gear. 120 118

119

120

See Arts VII(2) and XXIX(1) of the CCAMLR Convention. However, that State still needs to be engaged in relevant scientific research. See note 53 above. See also E.J. Molenaar, “Participation, Allocation and Unregulated Fishing: The Practice of Regional Fisheries Management Organizations”, 18 International Journal of Marine and Coastal Law 457-480 (2003), at p. 463. NAFO/GC Doc. 99/4, (1999) ‘Report of the Working Group on Allocation of Fishing Rights to Contracting Parties of NAFO and Chartering of Vessels Between Contracting Parties’, at Annex 6. It continues by arguing that Art.

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It is submitted that in view of the current state of marine capture fisheries worldwide, the substandard performance of many RFMOs and the need for a balance between socio-economic interests and the interests of marine biodiversity, the membership of RFMOs should seriously consider the issue of participation by non-user States. It is acknowledged, however, that the modalities of such participation should ensure that a repetition of the current situation in the IWC is avoided, for instance by expeditious compulsory dispute settlement mechanisms. 121 At the same time, non-user States should exert pressure on RFMOs to enable their participation. In case such pressure has insufficient effect, they may also consider recourse to the dispute settlement procedure of the Fish Stocks Agreement. This is admittedly difficult, inter alia because the right and obligation connected to the notion of real interest are only applicable to parties to the Fish Stocks Agreement and not to RFMOs as such. Alternatively, States whose primary motive would be the conservation of marine biodiversity may seek participation in RFMOs as a new entrant and, when allocated fishing opportunities, exercise their implicit right not to fully utilize these, as discussed in the next subsection.

121

9(2) of the Fish Stocks Agreement indicates that “it is possible to have a real interest in fisheries or in the work of a fisheries management organization or both”. See also M.A. Orellana, “The Swordfish Dispute between the EU and Chile at the ITLOS and the WTO, 71 Nordic Journal of International Law 5581 (2002), at p. 75, who takes a similar view. See in this regard the 2004 amendments to the NEAFC Convention (Report of the 23rd Annual NEAFC Meeting (2004), at pp. 37-38 and Annex K). See also T.L. McDorman, “Implementing Existing Tools: Turning Words into Action – Decision-Making Processes of Regional Fisheries Management Organisations (RFMOs)”, 20 International Journal of Marine and Coastal Law 423-457 (2005), at pp. 440 and 447.

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4.4.4. The Right to Under-utilize Allocations of Fishing Opportunities

States can contribute to the conservation of marine biodiversity by exercising their implicit right not to (fully) utilize fishing opportunities allocated to them by RFMOs or other cooperative arrangements. Such a course may be taken as a consequence of assessments carried out by a government at its own instigation, with or without the involvement of stakeholders, or as a consequence of rights given to nationals under domestic law to ensure that their government conserves marine biodiversity. An example of the latter scenario is the right, pursuant to Section 191 of the Environment Protection and Biodiversity Conservation (EPBC) Act 122 of the Commonwealth of Australia, for any person to ask the Commonwealth Minister for the Environment and Heritage to list a native species in a particular category (e.g. endangered) under the List of Threatened Species (further: the List) pursuant to Section 178. This nomination is then forwarded to the Threatened Species Scientific Committee (TSSC), who, after consideration, makes recommendations to the Minister. In June 2003 the Australian office of Humane Society International (HSI) nominated southern bluefin tuna (SBT) to be listed as endangered. Even though the species had already been listed as endangered at the state-level in New South Wales, Tasmania and Victoria, 123 as the individual states have in principle no competence beyond 3 nautical miles

122 123

Cth Act No. 91 of 1999, as amended (for text see ). Information provided by N. Beynon, HSI, Australia, May 2006. See also .

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offshore, 124 listing at the level of the Commonwealth is obviously much more important. After the Minister twice postponed the deadline for the TSSC to submit its advice, 125 the TSSC eventually recommended that SBT be listed as endangered, but went on to observe the following: The Committee notes the importance of Australia’s leadership within [the Commission on the Conservation of Southern Bluefin Tuna (CCSBT)] to achieve long-term conservation outcomes for the SBT. In particular, the Committee recognises the need for international cooperation to address fishing impacts on the species’ spawning ground. The Committee is concerned that the listing of SBT under the EPBC Act at this time may be detrimental to the survival of the species, as it may weaken Australia’s ability to influence the global conservation of the species, and by implication, its conservation in Australian waters. 126 The Minister subsequently decided not to add SBT to the List and essentially reproduced the last sentence of the observation by the TSSC. 127 By that time, the Minister had already, in November 2004, declared the Australian Southern Bluefin Tuna Fishery as an approved Wildlife Trade Operation under the EPBC Act. Partly in view of the TSSC’s recommendation in September 2005, HSI then appealed the November 2004 declaration before the Commonwealth’s Administrative Appeals Tribunal. In April 2006, this Tribunal upheld the Minister’s declaration. 128 124

125

126

127 128

Cf. Section 4 of Coastal Waters (State Powers) Act (Cth Act No. 75 of 1980, as amended). Pursuant to the Minister’s powers under Section 189(4) of the EPBC Act (information provided by N. Beynon, HSI, Australia, May 2006). See . Ibid. See also Section 186(2) of the EPBC Act. HSI v. Minister for the Environment and Heritage, Case No. N2005/339, Decision of 3 April 2006; text at .

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Practice within RFMOs Coincidentally, during more or less the same period discussions took place in the CCSBT 129 on the legal nature of national SBT allocations under the CCSBT Convention 130 and general international law. The discussions were sparked by the fact that South Korea had been increasingly underutilizing its SBT allocation since 2000; according to South Korea due to low market prices for SBT. South Korea and possibly other Members were therefore considering the possibility of quota-trading. 131 According to the external legal advice that was subsequently commissioned, quota-trading is not prohibited by the CCSBT Convention or by general international law. 132 So far the CCSBT has not developed a quota-trading scheme, partly because the conservation status of SBT had (further) worsened in 2005. 133 The fact that Korea had in 2005 practically not utilized its allocation at all was in that context regarded as not unwelcome. 134 Further developments may have taken place at the Special Meeting of the CCSBT in July 2006, where Taiwan placed the management of overcatch and undercatch on the agenda.

129

130

131

132

133

134

In fact, in the Extended Commission, which includes Taiwan (CCSBT-EC, or EC). Convention for the Conservation of Southern Bluefin Tuna, Canberra, 10 May 1993. In force 20 May 1994, 1819 United Nations Treaty Series 360; . See the Report of the Extended Commission of the Tenth Annual Meeting of the CCSBT (2003), paras 31 and 55-56 and Attachment 8-5. Attachment A to Doc. CCSBT-EC/0410/16 (2004). See also Doc. CCSBTEC/0410/Info01 (2004), which contains the legal opinion of New Zealand on this issue. See the Report of the Extended Commission of the Twelfth Annual Meeting of the CCSBT (2005), paras. 106-111. South Korea’s reported catch for 2005 was 32 tonnes, on an allocation of 1,140 tonnes (information provided by B. Macdonald, CCSBT, June 2006).

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Quota-trading also occurs within NAFO and ICCAT. 135 Both RFMOs also allow chartering arrangements where fishing opportunities are utilized by vessels flying a flag other than the State to which the opportunities are allocated. 136 Moreover, the Common Fisheries Policy of the EU allows EU Member States to exchange all or part of their fishing opportunities. 137 Also noteworthy is the Inter-American Tropical Tuna Commission (IATTC)’s Resolution 02-03 on Capacity of the Tuna Fleet Operating in the Eastern Pacific Ocean, which limits the purse seine capacity to the vessels on the IATTC Regional Vessel Register. Pursuant to paragraph 10 of Resolution 02-03, an exception is made for five States that are entitled to add some purse-seine vessels to the Register after 28 June 2002 – the date on which the Resolution was adopted. As two of these, Costa Rica and Peru, have not yet done so, 138 this amounts to de facto under-utilization. The effect of the entitlement to designate vessels as ‘inactive’ for at least a year 139 is similar. Moreover, the Resolution allows vessels to be replaced by others, 140 which implicitly allows temporary or permanent transfers of (capacity) allocations from one State to another. This thereby implicitly 135

136

137

138 139 140

See note 53 above. Cf. Doc. CCSBT-EC/0410/16 (2004), note 132 above, at Attachment A, pp. 18-19. In both cases, quota-trading requires the approval by the contracting parties. In the case of ICCAT, quota-trading is possible pursuant to ICCAT Recommendation 01-12 ‘Regarding the Temporary Adjustment of Quotas’ (despite ICCAT Resolution 01-25 ‘on Criteria for the Allocation of Fishing Possibilities’, which provides in para. 27: “No qualifying participant shall trade or sell its quota allocation or a part thereof”). See for instance ICCAT Resolution 03-05 ‘to Authorize a Temporary Catch Limit Adjustment in the South Atlantic Swordfish Fishery’ (information provided by V. Restrepo, ICCAT, June 2006). See Art. 15 of the NAFO Conservation and Enforcement Measures and ICCAT Recommendation 02/21 on Vessel Chartering. Council Regulation (EC) No 2371/2002, of 20 December 2002, on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, at Art. 20(5). Information provided by B. Hallman, IATTC, 13 June 2006. Cf. para. 9. Cf. paras 7-9.

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allows chartering as well, which is also not prohibited by other IATTC rules and procedures. So far there seem to have been only few instances where underutilization of allocations has been discussed in RFMOs. Within NAFO, France (on behalf of Saint Pierre and Miquelon) was instrumental in pressing for a chartering arrangement. Both Canada and Japan took the view that the purpose of chartering should not be to fill a gap in fishing capacity and thereby in fact advocated a ‘use-it-or-lose-it’ approach. 141 However, the fact that a chartering arrangement was in the end approved implies that this approach did not find sufficient support. Another instance where under-utilization was discussed in RFMOs was that involving South Korea in the context of the CCSBT. Here too, a ‘use-it-or-lose-it’ approach was not adopted. Finally, within ICCAT it is established practice to allow States to carry over under-utilizations (underages) from one year to another, with some limitations. 142 Under-utilization of allocations also occurs within the EU. One example is - or, possibly, has been - Germany’s under-utilization of its allocation for Redfish (Sebastes spp.) in the maritime zones of Greenland, 143 presumably for lack of interest and lack of opportunities to swap this allocation with other allocations. Despite objections from other EU Member States, 141 142

143

See Section 9 and Annex 3 to NAFO/GC Doc. 99/4, note 120 above. The point of departure of the practice is laid down in ICCAT Recommendation 00-14 ‘Regarding Compliance with Management Measures which Define Quotas and/or Catch Limits’. For examples of the practice see e.g. ICCAT Recommendations 02-08 (para. 4), 02-02 (para. 5), 02-01 (para. 4), 01-13 and 98-07 (para. 6). Some limits to the practice are laid down in e.g. ICCAT Recommendations 04-01 (para. 4(b)) and 03-06 (para. 6) and ICCAT Resolution 03-05, note 135 above. Council Regulation (EC) No 51/2006 of 22 December 2005 fixing for 2006 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (OJ 2006, L 16/1), at p. 86.

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Germany was able to continue its under-utilization by relying on the principle of relative stability, which essentially freezes an agreed allocation key for certain species in certain management areas. 144 Moreover, the fact that EU Member States are allowed to transfer 10% of some allocations from one year to the next, 145 also implicitly recognizes the right to underutilize allocations. In the context of fisheries access agreements between the EU and third States, however, provisions usually stipulate that underutilization of allocations entitles other EU Member States to request an allocation. 146 There have nevertheless been instances in which the EC Commission has rejected such requests for conservation reasons. 147 The practice within NAFO, CCSBT, IATTC, ICCAT and the EU shows that under-utilization occurs regularly and that a ‘use-it-or-lose-it’ approach has so far never been rigidly pursued. However, the instances of underutilization were practically all motivated by reasons of fishing capacity or economic viability and not for the conservation of marine biodiversity. The only exception is some practice of the EC Commission, but the context and legal regime under which those occurred is very different from the other examples.

144

145

146

147

Cf. Art. 20(1) of Council Regulation (EC) No 2371/2002, note 137 above, and the settled jurisprudence of the European Court of Justice. Cf. Art. 4(2) of Council Regulation (EC) No 847/96, of 6 May 1996, introducing additional conditions for year-to-year management of TACs and quotas (OJ 1996, L 115/3). See, for instance, Art. 2 of Council Regulation (EC) No 764/2006, of 22 May 2006, on the conclusion of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco (OJ 2006, L 141/1). For instance in 2004-2005 when the EC Commission decided, in view of the conservation status of octopus in the waters of Mauritania, not to utilize 5 licenses that were still available under the fisheries access agreement with Mauritania (information provided by H. Koster, EC Commission, 9 June 2006).

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Relevant Rights and Obligations under General International Law Under general international law coastal States have, pursuant to their sovereignty and sovereign rights over marine living resources in their maritime zones, the right not to engage in fishing in order to conserve marine biodiversity. In fact, pursuant to Article 61 of the LOS Convention, coastal States are obliged to avoid over-exploitation not only of target species but also of associated and dependent species as well as to take account of relevant environmental factors, which could be regarded as a reference to the broader marine environment. In addition, Part XII of the LOS Convention establishes a general duty for States to protect and preserve the marine environment, with special reference to “rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life”. 148 Finally, in the scenario under investigation, the obligations under Article 62 of the LOS Convention to promote the objective of optimum utilization and to give other States access to the surplus of the TAC are not applicable, as they are “without prejudice to article 61”. While high seas fishing States are not bound to the objective of optimum utilization, they have a similar obligation to conserve marine biodiversity and thereby a similar implicit right not to engage in high seas fishing for that purpose. 149 For States that are not just parties to the LOS Convention but also to the CBD, which currently amounts to almost the entire international community of States, the obligations of the LOS Convention are complemented and deepened by the obligations under the CBD to conserve marine biodiversity. Similarly, for States that are not just parties to the LOS 148 149

Art. 194(5). See Arts 116-119 of the LOS Convention.

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Convention but also to the Fish Stocks Agreement, the latter’s obligations on the precautionary approach and various ecosystem considerations complement the more general and less specific obligations on straddling and highly migratory fish stocks laid down in the LOS Convention.

Responsible Action in RFMOs More complicated is the situation where States that cooperate on the conservation and management of transboundary or discrete high seas fish stocks have agreed to allocate fishing opportunities to avoid overexploitation. In such situations the cooperative arrangement’s objectives and its decision-making procedures are all relevant for the scenario under investigation. Conservation of marine biodiversity can be achieved in various ways, for instance by prohibiting certain fishing practices or by prohibiting targeted fishing for certain species. In many cases, however, a lower TAC for a particular species will be sufficient to conserve marine biodiversity. Assuming that agreement on a lower TAC within a cooperative arrangement would equitably spread the burden of conservation among the participants, this would be the preferred solution for most participants. This is so because apart from the special case of CCAMLR, participants in cooperative arrangements also do this for socio-economic reasons. However, the necessary majority for a lower TAC may not be obtainable. Participants with biodiversity concerns are then faced with several options. They could opt for a pragmatic rather than a fundamental approach by not opposing a higher TAC and subsequently under-utilize their allocations. This would also avoid, at least for some time, anticipatory proposals for even higher TACs to compensate for under-utilization. Those that prefer to emphasize that this is a matter of principle, however, may use their right to

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opt-out, if available. However, there may also be a blocking minority against alternatives for the lower TAC. In case of consensus or unanimity decision-making, this could be achieved by a single participant. In the last scenario, the effect of a blocking minority could be not to have fishing opportunities allocated at all, with all the risks that an unregulated fishery would have for the species, the broader marine ecosystem as well as the credibility and legitimacy of the cooperative arrangement. It is submitted that, faced with such risks, participants would act more responsibly by not blocking decision-making and subsequently by not fully, or not at all, utilizing their allocations. Other participants would then be bound to the agreed (higher) TAC and the allocations of fishing opportunities. A participant that utilizes another participant’s allocation would exceed its own allocation, thereby violate applicable obligations under the cooperative arrangement and possibly even incur a ‘pay-back’ obligation. It is recognized, however, that intentional under-utilization may not be an option for EU Member States due to entitlements to fishing opportunities of EU nationals pursuant to EU law. Such action would not necessarily be inconsistent with the objectives of the cooperative arrangement. Most RFMOs have a dual objective of conservation and (rational) utilization, while some - such as the CCSBT are also bound to the objective of optimum utilization. As in the LOS Convention and Fish Stocks Agreement, however, the objective of optimum utilization is usually dependent on, or subsidiary to, the objective of conservation or long-term sustainability. In cases where lower TACs cannot be agreed, under-utilization of allocations may be justified by the conservation objective.

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As the objective of some cooperative arrangements is limited to target species, 150 it would strictly speaking not be possible to under-utilize allocations for the purpose of conserving other forms of marine biodiversity. However, as the constitutive instruments of most cooperative arrangements usually contain provisions that allow States parties to fulfill their obligations under other treaties or international law in general, 151 it is arguable that under-utilization for other purposes would still be possible. Whether or not a State is entitled to under-utilize its allocation for the purpose of conserving marine biodiversity depends largely on its scientific basis and the application of the precautionary approach. The principle of good faith and the prohibition of abuse of rights, both of which are part of general international law, are also relevant in assessing the legality of such an entitlement. Legality is more likely to exist in scenarios where a management body deviates from the advice by a scientific body, where the advice by the scientific body was not agreed on by consensus or where the management and/or scientific have not, or not correctly, applied the precautionary approach. Provided it is science-based and proceeds from a justifiable application of the precautionary approach, under-utilization of allocations will strengthen a State’s credibility as a responsible fisheries management authority, rather than undermine it. 152 That would be different if under- or non-utilization would be motivated by ethical or cultural considerations, which would bring a State’s allegiance to the utilization objective of cooperative arrangements into question. Finally, it should be recognized that the ability to under-utilize for conservation reasons depends first of all on the applicable decision-making 150 151 152

See, for example, Arts I(4) and II(1) of the NAFO Convention. See, for example, Art. 4 of the CCSBT Convention. For the latter view, see the 2006 Decision by the AAT, note 128 above, at para. 56.

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procedures. In case of consensus decision-making, even a single participant may block anticipatory proposals for higher TACs to compensate for underutilization or proposals that pursue a use-it-or-lose-it approach. In case participants with biodiversity concerns do not have a blocking minority, the remedies are more limited, but not absent. One of these is to challenge the legality of the majority’s behavior in the course of a dispute settlement procedure, where available. 4.4.5. Coastal State Jurisdiction over the (Outer) Continental Shelf

Article 77(1) of the LOS Convention recognizes a coastal State’s sovereign rights over its continental shelf “for the purpose of exploring it and exploiting its natural resources”. These natural resources consist of the non-living resources of the sea-bed and subsoil together with living organisms belonging to sedentary species. 153 It is submitted elsewhere that sedentary species can be regarded as including species such as clams, pearl shells, abalone, corals, sponges and other benthic communities. 154 As regards the rights and obligations of coastal States over their outer continental shelves, there are two issues where reform seems particularly necessary. The first relates to the fact that the LOS Convention currently does not clearly require coastal States to conserve sedentary species. The obligations in relation to ecosystems and habitats under Article 194(5) lack clarity as well and, in any event, do not relate to target species.

153 154

Art. 77(4) of the LOS Convention. Molenaar, note 45 above, at pp. 557-563. See also L.A. Kimball, “Deep-Sea Fisheries of the High Seas: The Management Impasse”, 19 International Journal of Marine and Coastal Law 259-287 (2004), at pp. 275-277, 279-281 and 286; and Hayashi, note 68 above, at p. 293.

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The second concerns the lack of guidance offered by the LOS Convention as to how the justifiability of interference by coastal States with high seas fishing above outer continental shelves should be assessed. Some States take the view that in conformity with the [LOS Convention], the coastal State was fully entitled to adopt any conservation and management measures it deemed necessary to protect its sedentary species on the continental shelf. Those may include the possibility of imposing restrictive measures on fishing activities in the high seas over its continental shelf, including on fishing practices that were deemed to have a negative impact on sedentary species. 155 However, the fact that only “some” States take this view means that others do not or have not determined a position yet. As far as could be ascertained, no coastal States have yet imposed such measures. 156 Also, the cited view does not take account of the relevance of the presence of RFMOs or Arrangements that have spatial competence over these outer continental shelves and their regulation of fisheries impacting on sedentary species of outer continental shelves. Finally, so far no coastal States have concluded the LOS Convention’s procedure involving the Commission on the Limits of the Continental Shelf (CLCS) for establishing the outer limits of their outer continental shelf. The precise spatial scope of their rights is therefore unclear as well. In conclusion, there seems to be a need for clarification of the relationship between the sovereign rights of coastal States over

155

156

See the Report of the Ad Hoc Open-ended Informal Working Group established by the UNGA to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (UN Doc. A/61/65, of 20 March 2006), at p. 7, para. 22. It is worth noting, however, that by 2020 New Zealand intends to have established some marine protected areas beyond its EEZ to protect benthic communities (cf. UN Doc. A/61/154, note 5 above, at p. 23, para. 93). But this may not necessarily be done unilaterally.

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sedentary species on their outer continental shelves, the freedom of high seas fishing, the presence of and regulation by RFMOs or Arrangements and the consequences of not having established final and binding outer limits. While clarification on the second issue could be provided in the course of an international dispute settlement procedure, this would not resolve the first issue. The international community may in any event prefer not to wait for such a procedure and commence negotiations towards a legally binding instrument that incorporates clarification on both issues. As regards the form of such an instrument, an Implementation Agreement to the LOS Convention seems the most likely. The issue of the outer continental shelf may be the only issue addressed by this Implementation Agreement or one as part of a package. In case the international community decides to resolve the gap identified in subsection 4.1 in relation to fish stocks discrete to ABNJ - including sedentary species therefore - it would seem logical to also incorporate clarification on the two issues discussed in this subsection.

4.4.6. Port State Jurisdiction: Optimizing Use, Broadening Rights and Striving towards Mandatory and Global Coverage

By complementing the flag State’s primary responsibility over ships flying its flag, port States can make an important contribution to ensuring compliance with international regulatory efforts. 157 These efforts include

157

See UNGA Resolution 60/30, of 29 November 2005, para. 47 and UNGA Resolution 60/31, of 29 November 2005, paras 36 and 42.

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combating IUU fishing and thereby the conservation of biodiversity in ABNJ. Under general international law, vessels have no right of access to foreign ports and port States have broad powers to prescribe and enforce. The legality or justifiability of extra-territorial port State jurisdiction meaning jurisdiction over behavior occurring beyond the port State’s own maritime zones - depends not only on a sufficient jurisdictional basis but also on the type of enforcement action taken. 158 This ranges from less onerous enforcement measures - such as denial of entry into port or the use of port services - to more onerous enforcement measures - such as imposing monetary penalties or confiscating catch. A port State’s residual jurisdiction - meaning its competence to prescribe more stringent standards than those agreed to within competent international organizations such as IMO - is not affected by adherence to IMO instruments as such. The implications of international trade law on a port State’s residual jurisdiction are nevertheless unclear. It is submitted that current general international law entitles port States to exercise extra-territorial jurisdiction over IUU fishing activities on the high seas. 159 However, state practice indicates that only the less onerous enforcement measures are imposed and thereby suggests that jurisdiction is not unlimited. No support therefore exists in state practice for the view that Article 25(2) of the LOS Convention and Article 23(4) of the Fish Stocks 158

159

For a general discussion see E. J. Molenaar, “Port State Jurisdiction: Towards Mandatory and Comprehensive Use”, in D. Freestone, R. Barnes and D. Ong (eds) The Law of the Sea: Progress and Prospects (Oxford University Press: 2006), pp. 192-209. For an understanding of the components of IUU fishing see paras 3.1-3.4 of the IPOA on IUU Fishing (International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. Adopted by consensus by FAO’s Committee on Fisheries on 2 March 2001 and endorsed by the FAO Council on 23 June 2001; text available at ).

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Agreement confirm unlimited port State jurisdiction and that a jurisdictional basis similar to Article 218 of the LOS Convention - which gives port States the right to institute proceedings over illegal discharges beyond its own maritime zones - would not be necessary for imposing more onerous measures. 160 Until such time as the international legal framework gives port States in the sphere of marine capture fisheries additional enforcement powers similar to Article 218 of the LOS Convention, States are encouraged to make “the fullest possible use of its jurisdiction under international law in furtherance of not just its own rights and interests but also those of the international community”. 161 Accordingly, a ‘responsible port State’ should, balanced by appropriate safeguards, optimize the use of port State jurisdiction, for instance by using criminal or administrative law to lay charges such as furnishing false information, by pursuing Lacey Actapproaches or by taking action against stateless vessels. 162 In addition, it should use the opportunities that integrated in-port enforcement offers for combating IUU fishing, for instance, by subjecting suspected vessels to enforcement for purposes other than conservation and management of marine living resources. The effectiveness of port State jurisdiction as a tool to combat IUU fishing and thereby conserve biodiversity in ABNJ is currently significantly diminished by the fact that the objective of mandatory and global coverage of port State measures still lies far ahead. A shift from optional to mandatory port State jurisdiction seems nevertheless unavoidable. 160 161

162

Cf. Molenaar, note 158 above, at p. 202. Closing the Net: Stopping Illegal Fishing on the High Seas, Final Report of the Ministerially-led Task Force on IUU Fishing on the High Seas (2006; text at ), at p. 78. Cf. Closing the Net, note 161 above, at p. 78 and Molenaar, note 158 above, at p. 204.

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Awareness that the interests of the international community are not only undermined by free riders in their capacity as flag States, but also in their capacity as port States through so-called ‘ports of convenience’, is expected to spread due to current and future concerns, including those on international terrorism. The FAO Port State Model Scheme 163 aims to contribute to the creation of a global network of regional port State jurisdiction for the purpose of marine capture fisheries and offers guidance and opportunities for harmonization in this respect. So far, there have been only a few efforts to implement the FAO Scheme by RFMOs. 164 Most recently, the FSA Review Conference recommended to initiate, as soon as possible, a process within FAO to develop, as appropriate, a legally binding instrument on minimum standards for port State measures, building on the [FAO Port State Model Scheme] and the [IPOA on IUU Fishing 165 ]. 166 This Norwegian proposal was explicitly supported by many delegations, including the EC and New Zealand, with Japan cautiously indicating a willingness to consider it. 167 If such a process will indeed be initiated will

163

164

165 166 167

Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (Annex E to the ‘Report of the Technical Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing. Rome, 31 August–2 September 2004’ (FAO Fisheries Report. No. 759 (Rome, FAO: 2004)), endorsed by COFI at its Twenty-Sixth Session in March 2005 (‘Report of the twenty-sixth session of the Committee on Fisheries. Rome, 7–11 March 2005’ (FAO Fisheries Reports No. R780: 2005), at para. 25). For instance the adoption of SEAFC Conservation Measure 02/05 ‘on Interim Port State Measures’, which uses Annexes B and C of the FAO Port State Model Scheme. See note 159 above. Cf. Doc. A/CONF.210/2006/15, note 8 above, at p. 39, para 43(d). Earth Negotiations Bulletin, Vol. 7, No 59, at pp. 1-2 (available at ).

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probably be decided at the 27th Session of COFI 168 in March 2007. This recommendation of the FSA Review Conference implicitly reflects broad agreement that the FAO Port State Model Scheme - if not substantively than at least as regards its non-legally binding status - and/or the extent and way in which it has so far been implemented, are not adequate to achieve the aforementioned objectives. The need for a global approach for marine capture fisheries seems indeed more pertinent in comparison with the regulation of merchant shipping for the protection and preservation of the marine environment. While barring substandard ships at the regional level reduces the risk to the regional marine environment (but probably increases the risk in other regions), the increasing practice of transshipment of catch at sea means that fish caught in one region can easily be landed anywhere on the globe. This practice also underscores the need to target not just fishing vessels with fish (products) on board, but also other vessels carrying fish (products) as well as fishing vessels that have no fish (products) on board. 169 The words “minimum standards for port State measures” suggest that the negotiation process will have a modest objective, perhaps aimed at little more than incorporating the substance of the FAO Port State Model Scheme and the relevant parts of the IPOA on IUU Fishing in a legally binding instrument. The cited words thereby imply that a more ambitious undertaking aimed at a comprehensive package of rights and obligations of

168 169

See note 13 above. See inter alia the discussion during the 24th Annual CCAMLR Meeting (2005), where Argentina opposed several amendments to CCAMLR Conservation Measure 10-03 (2005) ‘Port inspections of vessels carrying toothfish’, which would inter alia have required inspections of all vessels carrying toothfish (cf. the Report of the 24th Annual CCAMLR Meeting (2005) (Doc. CCAMLR-XXIV), at paras 11.16-11.17, 16.9 and 17.3-17.4.

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port States in relation to marine capture fisheries is not expected to secure the necessary support. The challenge will be to ensure that, compared with the instruments on which it builds, the envisaged instrument has clear added value. While rights of access to port per se may be difficult to accept for coastal States with fleets that now have a competitive advantage due to proximity to high seas fishing grounds, they may be acceptable as part of an overall package. Possible other elements of the package are obligations on inspection, denial of landing and use of port services, safeguards for flag States, assistance to developing States (possibly through a dedicated fund), compulsory dispute settlement and a port State right to institute proceedings for IUU fishing activities on the high seas. The latter right would include a right to confiscate IUU catch and to impose monetary penalties. In order to avoid abuse of this right but without at the same time removing the port State’s incentive to enforce, it could be stipulated that part of the proceeds of the sale of the IUU catch and/or the monetary penalty are to be deposited in a fund. Account could thereby be taken of the experience of CCAMLR, where Contracting Parties that have seized or confiscated toothfish (Dissostichus spp.) - presumably in accordance with current international law - may transfer all or part of the proceeds of the sale to the CDS Fund. 170

170

Cf. para. 18 of CCAMLR Conservation Measures 10-05 (2005) ‘Catch Documentation Scheme [CDS] for Dissostichus spp.’. Annex B contains the procedure for the operation of the CDS Fund. In 2001 the United Kingdom deposited part (AUD$ 284,789.78) of the proceeds of the sale of toothfish caught within the CCAMLR Convention Area without an authorization by one of its own vessels, the Mila, in the CDS (cf. Report of the 20th Annual CCAMLR Meeting (2001) (Doc. CCAMLR-XX), at p. 136).

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4.4.7. Non-flag States and the Genuine Link While the need to combat IUU fishing is widely recognized, it is submitted that clarification of the concept of the genuine link 171 would only be helpful if focused on, or explicitly linked to, clarifying the consequences of the absence of a genuine link between a vessel and its flag State. Or, in other words, on clarifying the rights of non-flag States over such a vessel. Until such reform has been completed, States, whether individually or cooperatively, may be willing to seek, through state practice, clarification of these issues and the basic international flag State obligations on exercising effective jurisdiction and control over their ships and on cooperation in the management and conservation of transboundary and discrete high seas fish stocks. One option would be taking enforcement action in the high seas parts of an RFMO against unregulated fishing activities carried out under the flag of States that are blatantly failing to cooperate with that RFMO. It is submitted that the absence of a genuine link and/or the failure to cooperate is particularly obvious for violations of fisheries regulations in (integrated) MPAs in ABNJ. Such a view may be corroborated - or not - in the course of an international dispute settlement procedure instituted in the aftermath of such enforcement action. The considerable costs of such procedures may already be sufficient reason for States to cooperate, inter alia, by pooling resources.

171

See Art. 91(1) of the LOS Convention and Doc. A/CONF.210/2006/15, note 8 above, at p. 17, para. 81, p. 22, para. 101 and p. 37, para. 32(h). For a recent analysis on the concept see D. Anderson, “Freedoms of the High Seas in the Modern Law of the Sea”, in Freestone et al., note 158 above, pp. 327-346, at pp. 332-340.

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5. Conclusions The current international legal framework relating to the conservation and sustainable use of marine biodiversity in ABNJ consists of a multitude of global, regional and bilateral legally binding and non-legally binding instruments and acts by intergovernmental organizations (IOs). As a whole, the framework is highly sectoralized and decentralized and suffers as a consequence not only from spatial and substantive gaps but also from actual and potential overlaps. The need for reform of this framework should be assessed in light of, inter alia, the threats to marine biodiversity in ABNJ. Once the need for reform has indeed been ascertained, attention shifts to the form and level of reform. This phase includes among other things a cost-benefit analysis of various options, partly in light of the severity of the threat to marine biodiversity and the urgency of reform. The outcome of this phase may well be that reform should not be undertaken. Spatial and substantive sectoral gaps in the current legal framework exist among other things in areas beyond national jurisdiction (ABNJ) that are not covered by regional fisheries management organizations (RFMOs) at all or only by RFMOs with narrow mandates or substandard performance. These gaps are currently being addressed. Many ABNJ are also not covered by regional marine environmental protection instruments and bodies at all or, possibly, merely by instruments and bodies with inadequate mandates and performance. Also lacking are regulatory frameworks with competent IOs for certain human activities - such as marine scientific research - that are carried out in ABNJ. There may well be a need for reform of the international legal framework on these aspects. In view of the decentralized nature of international law and the absence of hierarchy among its forms/manifestations as well as its law-making

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processes, the form and level of proposed reform should minimize competition or overlap with existing legal regimes. This is a particularly important consideration in light of the identified need to move from sectoral governance towards integrated ecosystem-based oceans management and the support for integrated marine protected areas (MPAs) in ABNJ. The article elaborated on the need for reform in relation to some selected substantive issues, namely discrete high seas fish stocks, deep-sea species and fisheries, integrated MPAs in ABNJ and on existing and new rights to conserve marine biodiversity. As regards the last issue, it notes that, at a high level, reform is guided by the universal but flexible goal of sustainable development and thereby pursues an equitable balance between socio-economic interests and the interests of marine biodiversity of present and future generations. Arguably, another necessary balance that such reform should strike is that between rights and obligations of States to conserve marine biodiversity. In view of the current rate of loss of marine biodiversity, reform should not just be limited to the traditional approach of strengthening, deepening and broadening obligations but should be balanced with optimizing use of existing rights and/or granting new rights to ensure that the overarching balance is achieved. Examples of existing rights that could be more optimally used and new rights that could be granted are (a) a general but explicit right for States to marine biodiversity, (b) rights of non-user States in RFMOs, (c) rights of members of RFMOs to under-utilize their allocations of fishing opportunities, (d) rights of coastal States over their (outer) continental shelves, (e) rights of port States over IUU fishing on the high seas and (f) rights of non-flag States in the absence of a genuine link and a blatant failure to cooperate in the management and conservation of transboundary and discrete high seas fish stocks.

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Charismatic Microfauna: Marine Genetic Resources and the Law of the Sea 1 Margaret F. Hayes 2 Abstract The 1977 discovery in the deep ocean of hydrothermal vents teeming with unimagined life forms was one of the most exciting scientific events of the 20th century. The development of a number of pharmaceutical and industrial products and processes from marine genetic resources (MGR) in the ensuing three decades presages a multitude of scientific breakthroughs and new commercial enterprises in the 21st century. The enormous potential of MGR to expand scientific knowledge, to develop patentable products and processes, and to profit from these inventions has attracted a great deal of technical, legal, and political commentary and speculation. This paper addresses legal aspects of MGR in relation to the United Nations Convention on the Law of the Sea (UNCLOS), whether and how scientific research on MGR should be managed, and policy issues relating to the exploitation of MGR, principally in areas beyond national jurisdiction. In particular, it refutes the assertion that MGR fall under the regime established in Part XI of UNCLOS as part of the “common heritage of mankind,” argues that 1

A word about the title of the paper. We here at the State Department thought we had invented the phrase “charismatic microfauna” to describe marine genetic resources, as a play on “charismatic megafauna”—those elephants and pandas and whales that serve as icons or mascots for a number of international organizations. We have since discovered that the “microfauna” term is already out there (almost 500 hits on Google), but I kept the title because it so nicely captures the increasing interest in these deep-sea creatures, and the controversy surrounding their exploitation. 2 Director, Office of Oceans Affairs, U.S. Department of State. The views presented are those of the author and not necessarily those of the U.S. Government. The author wishes to thank Constance Arvis, Kevin Baumert, Susan Biniaz, Melissa Brandt, Virginia Cox, Alexandra Curtis, Barbara Moore, Kathryn Youel Page, J. Ashley Roach, and Elizabeth Tirpak for their useful research and/or comments on the manuscript.

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scientific research on MGR in areas beyond national jurisdiction can and should be handled by the international scientific community, and posits that the interests of mankind will best be served by using areas beyond national jurisdiction as a source —a laboratory—for scientific invention and capacity building benefiting all nations of the world. BACKGROUND

Rather than providing a lengthy overview of the history of deep-sea exploration, the varieties of MGR, and the products and processes that have been developed based on their genetic characteristics, I refer you to a recent report of the United Nations University Institute of Advanced Study: Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects. 3 While I do not agree with all of the legal and policy conclusions in the paper, the report does contain a very thorough description of deep-sea ecosystems; useful information on genetic resources, genetic material, and microorganisms; and a review of bioprospecting activities in the deep seabed and the consequent development of patentable products or processes. In addition to hydrothermal vents found along mid-ocean ridges, other features such as cold seeps, brine pools, cold water corals, and methane hydrate beds are sites of great scientific interest due to the extreme living conditions they provide for life forms that have adapted to total darkness, extreme heat or extreme cold, high pressure, or toxicity. High rates of endemism of suspension feeders dependent on seamount habitats are also of interest. While the UNU-IAS report concentrates on areas beyond national jurisdiction, it is important to note that hydrothermal vents and all of the

3

www.ias.unu.edu/binaries2/DeepSeabed.pdf.

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other types of recently discovered marine ecosystems are also found within exclusive economic zones (EEZs), as well as on continental shelves both within and beyond the 200-mile limit. In those areas, coastal States have management authority over living natural resources. Within its EEZ, a coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing living resources, subject to the relevant provisions of Part V of UNCLOS. On its continental shelf, a coastal State under part VI has comparable rights over “living organisms belonging to the sedentary species,” a complication that will be discussed later in the paper. A coastal State, under Part XIII, may also regulate and authorize marine scientific research in its EEZ and on its continental shelf, and may withhold consent for foreign scientific research projects in the EEZ that are of direct significance for the exploration and exploitation of living natural resources. 4 Another useful background document is the Report of the Secretary General in preparation for a Working Group on Marine Biodiversity that met in February 2006 at the United Nations. 5 Noting the CBD definition of “genetic resources” as genetic material (i.e., functional units of heredity) of plant, animal, microbial, or other origin that has actual or potential value, the report suggests that the term includes plant seeds, animal gametes, cuttings, or individual organisms, as well as DNA extracted from a plant, animal, or microbe, such as a chromosome or a gene.

4

Under Art. 246(6) of UNCLOS, a coastal State may not withhold consent for scientific research projects on its continental shelf beyond 200 nautical miles from its baselines, except for specific areas the coastal State has publicly designated as sites in which exploitation or exploratory operations are occurring or will occur within a reasonable period of time. 5 A/60/63/Add. 1.

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Scientific attention to genetic resources in the marine environment is focused on microorganisms 6 found in unusual ecosystems, with a view to culturing and using gene expression to resolve the “supply problem,” that is, the tremendously high costs of collecting extremophiles. The more remote the location, the deeper the underwater feature, the more expensive it is to collect marine genetic material. Collections in deep water, using remotely operated vehicles or human-occupied submersibles as well as dredges and cores, can cost as much as $50,000 per day—both for transit to the research site and on station. 7 Collecting this genetic material is only the beginning. Perhaps one out of every 5,000 marine samples has bioactivity of interest to scientists. The initial screening of such a sample is followed by additional bioassays that may, but most likely will not, identify compounds that have potential as bioproducts.

For

potential

pharmaceuticals,

years

of

pre-clinical

development, often within an academic setting, precede many more years of analysis and testing before a product can be marketed; the total time is estimated to be 12 to 20 years. It is fair to say that, at the present time, developed States with sophisticated scientific and industrial enterprises are leading efforts to understand and find uses for these fascinating resources of the sea, both within and beyond areas of national jurisdiction.

MARINE GENETIC RESOURCES AND PART XI

Some authors have drawn parallels between the use of marine genetic resources in areas beyond national jurisdiction and the exploitation 6

For a discussion of the definition(s) of this term, see p. 16 of the UNU-IAS report cited at note 3. 7 B. Moore, personal communication. A $1 million budget could fund a cruise from Honolulu to Samoa (eight days each way) plus four days on site.

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of minerals in the deep seabed, in the “Area.” 8 As developing countries in the 1960s saw the potential for developed States to mine polymetallic nodules from the seabed, they were drawn to the concept of the “common heritage of mankind.” The original idea had been that exploitation of the resources of the ocean and seabed beyond the limits of national jurisdiction should benefit mankind as a whole. The UN General Assembly established an Ad Hoc Committee to study the concept, and later created a standing committee to refine ideas for a new international regime. In 1970 the General Assembly adopted resolution 2749 (XXV), which declared, without the force of law, that the seabed and ocean floor (but not the ocean itself) in areas beyond national jurisdiction, as well as the undefined “resources” of that area, were the common heritage of mankind. A simultaneous resolution (2750), recognizing that the problems of ocean space are closely interrelated, mandated preparatory work for the Third UN Conference on the Law of the Sea. As is well known, the Third Conference worked on the basis of consensus at each stage of the negotiation of the 1982 Convention, as a means of accommodating all the disparate and conflicting interests in play. As part of the package deal, coastal States achieved their goal of having rights and obligations specified with relation to their territorial seas, contiguous zones, EEZs, and continental shelves; each of these ocean spaces was defined, with maximum geographic/geologic limits. Another aspect of the deal was incorporation of the concept of the common heritage of mankind in the Preamble and in Part XI, 9 which established the “international machinery” to manage the Area—the deep seabed beyond 8

F. Armas Pfirter, “The Management of Seabed Living Resources” in “the Area” under UNCLOS, presented at the Tenth Session of the ISA 27 May 2004. 9 Article 136, in the second section of Part XI, recites that the Area and its resources are the common heritage of mankind; Article 133(a), the first article in Part XI, contains the limiting definition of “resources.”

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areas of national jurisdiction. The International Seabed Authority (ISA) was empowered to regulate “activities in the Area” and to devise the means of sharing the economic benefits of such activities. In crafting Part XI, however, the negotiators discussed at length the scope of those activities. Some argued for the inclusion of living resources, or at least sedentary living resources in the seabed; others wanted to limit the definition to minerals. By the mid-1970s, the most restrictive view was adopted, so that Article 133(a) defines “resources” as “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed…,” and Article 1(3) defines “activities in the Area” as “all activities of exploration for, and exploitation of, the resources of the Area.” Whether this compromise was driven by fishing nations that wanted to preserve the freedom of fishing on the high seas, and thus were uncomfortable with any reference to living resources in the Part XI definition, or by negotiators’ ignorance of the existence of living resources in the deep seabed, the result is crystal clear: Part XI gives the ISA no direct authority to regulate the exploitation of living resources in the Area. 10 I find it particularly interesting that the negotiation of the 1994 Agreement relating to the implementation of Part XI of UNCLOS occurred well after the discovery of hydrothermal vents and after the development of marine genetic resources into useful products and processes had begun. 11 Yet, as far as I have been able to determine, no one proposed during those

10

The ISA does have the mandate to regulate mining activities in order to protect the marine environment and to prevent damage to the flora and fauna of the Area from those [mining] activities (UNCLOS Article 145). This is not a general grant of power to the ISA to protect marine flora and fauna from other types of activity. 11 D. Farrier, “Access to Marine Bioresources: Hitching the Conservation Cart to the Bioprospecting Horse,” Ocean Development & International Law, 32 (2001) p. 216.

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negotiations to broaden the definition of “resources” in Article 133 to include living natural resources. 12 One author, after arguing that MGR should nonetheless be read into the definition of “resources” in Article 133, approaches the argument from the other direction, by asserting that some MGR are not “high seas resources” because they cannot survive without permanent physical contact with their home environments, hydrothermal vents. If they are not high seas resources, they must somehow be the equivalent of sedentary species of the continental shelf. Since sedentary species of the shelf beyond 200 nm are legally different from living resources of the water column above the extended shelf, the same logic holds true for the Area and the water column above it, she posits. 13 This argument is not persuasive. Giving coastal States management authority over sedentary species of the continental shelf beyond 200 nm was part of the political compromise that shaped UNCLOS. In practice, it has proved to be problematic even for the sorts of living resources contemplated by the negotiators: for example, different species of scallops are sedentary or not, depending on their exact method of locomotion. 14 Attempting to categorize marine genetic resources as sedentary or non-sedentary is even more of a challenge. The criterion of “harvestable stage” is appropriate for fish, but inapt for genetic resources. Marine genetic resources are not necessarily immobile or unable to move except in constant physical contact 12

Personal communication with members of the U.S. delegation. The Introduction to the 1994 Agreement in the DOALOS publication of the text states that environmental issues were removed from the negotiations in 1992, “since it was no longer considered to be a controversial issue in the context of deep seabed mining.” The Law of the Sea, United Nations Publication, Sales No. E.97.V.10 (1997), p. 209. 13 Armas Pfirter, pp. 20-22. 14 E. Buck, “U.N. Convention on the Law of the Sea: Living Resources Provisions,” CRS Report for Congress, RL32185 (7 January 2004) fn 13.

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with the seabed or the subsoil; microbes suspended in the water column in or near a vent could be classified as non-sedentary. 15 Importing these distinctions from Part VI into Part XI, besides being unsupported in the language of the Convention, would introduce enormous confusion where none need exist. While there may be a small gray area, the distinction between living and non-living resources in the Area is a workable one, and has the added advantage of being consistent with the text of UNCLOS. 16 Some commentators assert that Article 143, which states that “[m]arine scientific research in the Area shall be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole…,” is further proof that the exploitation of marine genetic resources falls under Part XI. The argument is that research directed at MGR has the purpose or at the least the potential of someday resulting in commercial products or

15

The negotiating history of Part XI indicates the mobility criterion was intended to differentiate bottom-dwelling fish that could swim from one area to another, from shellfish that could move only through self-locomotion in contact with the bottom. How this criterion would apply to the movement of microorganisms via water currents or host species is unclear. See the thorough discussion in C. Allen, “Protecting the Oceanic Gardens of Eden: International Law Issues in Deep-Sea Vent Resources Conservation and Management,” The Georgetown International Environmental Law Review XIII No. 3 (Spring 2001), pp. 618-628. See also D. Leary, “Bioprospecting and the Genetic Resources of the Hydrothermal Vents on the High Seas: What Is the Existing Legal Position, Where Are We Heading and What Are Our Options?” Macquerie Journal of International and Comparative Environmental Law l (2004) pp. 150-151. Leary argues that any future regime applying only to resources attached to the ocean floor would be inconsistent with an ecosystem approach (p. 158). 16 The same author points to Article 149 as evidence of negotiators’ broad intent to bring objects other than minerals under the common heritage concept (“All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole…”). Article 149, however, establishes no international regime pertaining to such objects, but instead gives preferential rights to the State of origin. The only obligation appears to be upon the State of origin to determine how preservation or disposal of the object will benefit mankind.

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processes. Since individual researchers may not immediately publish their results and may eventually profit from the activity, 17 their research cannot be said to benefit mankind as a whole. 18 The argument goes a little fuzzy at this point: either research involving MGR in the Area is not legitimate scientific research and must be halted, or it is legitimate research that can be redeemed by acknowledging the ISA’s power to regulate both the activity and the eventual profits. This argument ignores the rest of the text of Article 143. First, the cross reference in Article 143(1) to Part XIII, where general principles for the conduct of marine scientific research in all geographic areas are set out, suggests that following those principles fulfills the requirement that research in the Area benefit mankind as a whole. 19 In Article 143(2), the ISA is authorized to carry out and encourage marine scientific research concerning “the Area and its [mineral] resources,” and to disseminate the results of such research and analysis when available, but not to manage other types of research. Article 143(3) directs States to promote international cooperation in scientific research in the Area, but gives them considerable leeway in determining how to carry out this obligation.

17

Surely the goal of universal benefit does not preclude simultaneous, differential benefits to the researcher, whether sharing in commercial profits, obtaining additional research grants, or enhancing professional reputation. 18 It is even posited that Article 241 is inconsistent with the eventual patenting of a product or process inspired by the properties of an MGR. (“Marine scientific research activities shall not constitute the legal basis for any claim to any part of the marine environment or its resources.”) This ignores the fact that intellectual property rights are based on innovative applications derived from years of testing and analysis; they are not a claim to any part of the marine environment. See Allen, p. 646 19 Article 240 repeats the “exclusively for peaceful purposes” language; requires the use of appropriate scientific methods and means; forbids unjustifiable interference with other legitimate uses of the sea; and mandates compliance with all relevant regulations adopted under the Convention, including those for the protection and preservation of the marine environment.

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The argument also ignores the possibility that research eventually resulting in a useful commercial product or process may be said to benefit mankind as a whole—for example, if the research leads to the development of a cure for cancer. In any event, it seems clear enough that scientific research involving MGR in the Area is not just allowed but encouraged under Article 143, in accordance with the general principles of Part XIII. Some will argue that marine scientific research involving genetic resources in the Area is not research at all, because of its commercial potential. Instead they hang on the activity the label “bioprospecting”—a term with slightly negative connotations that evolved during disputes between biodiverse countries and researchers seeking to remove genetic material from their fields and jungles. “Marine scientific research” is not defined in the Convention, but according to Article 246(5)(a), projects that are “of direct significance for the exploration and exploitation of natural resources” are a subset of marine scientific research. Subsequent practice has not presented a credible way to distinguish between what some call “pure” or “academic” research and the exploration for/exploitation of natural resources. 20 Assuming for argument’s sake that such a distinction is required by the Convention, determining the primary purpose of the collection of samples is just as difficult as discerning whether an artist’s creation was motivated by the need for self expression or for financial benefit and fame. Nor is reliance on the eventual results of a research project helpful, as it may be many years before collection of a bioactive specimen bears fruit. 20

“The reality is that commercial bioprospecting and marine scientific research are intimately connected….It has been suggested that bioprospecting is the best hope we have of discovering and documenting biological diversity within a reasonable time frame and at reduced cost to government.” Farrier, p. 228.

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This exact difficulty in distinguishing between scientific research and bioprospecting leads some to the conclusion noted above, that all activities relating to MGR must be considered bioprospecting, that is, exploration and exploitation. Joining this conclusion to the proposed absorption of MGR into the definition of “resources,” the argument goes, means the ISA is bound to start managing these activities as it would manage mining activities. It will be interesting to see how coastal States deal with distinguishing between marine scientific research on MGR and exploitation of genetic resources in their EEZs and on their continental shelves, 21 but that distinction is irrelevant in areas beyond national jurisdiction. The longago decision by UNCLOS negotiators to confine the Part XI regime to mineral resources, together with the freedoms to conduct scientific research and to exploit natural resources in areas beyond national jurisdiction that were preserved in Parts VII 22 and XIII of the Convention, bring us to the obvious conclusion that there is no need to grapple with that conundrum for the Area or the high seas. UNCLOS does not mandate or provide for the regulation of marine scientific research or the exploitation of living resources in areas beyond national jurisdiction. 23 21

Under Article 246, coastal States shall, under normal circumstances, grant consent for marine scientific research projects in the EEZs and on their continental shelves (but see note 4), but they may withhold consent if the research project is “of direct significance for the exploration and exploitation of natural resources….” 22 Part VII requires cooperation among all States to conserve and manage living resources in the high seas. 23 At the Dublin conference on July 14, 2006, Fernanda Millicay cited Art. 311(6) as establishing a “common heritage of mankind” principle that future agreements among UNCLOS States Parties must preserve. Paragraph 6 provides, “States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in Article 136 and that they shall not be party to any agreement in derogation thereof (emphasis added).” By its own terms, Art. 311(6) protects the principle only as set out in Art. 136, applying to the “Area” and its “resources” as defined in the Convention. This language was adopted after

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POLICY ISSUES RELATING TO MARINE GENETIC RESOURCES

While UNCLOS does not dictate or provide for the regulation of scientific research on, or exploitation of, marine genetic resources in areas beyond national jurisdiction, States could decide for reasons of policy to amend the Convention, 24 or to negotiate an implementing agreement consistent with UNCLOS. Those seeking to enlarge the application of the “common heritage of mankind” to MGR are pressing, as a matter of principle, for recognition of all resources—broadly defined—in areas beyond national jurisdiction to be treated the way deep-sea minerals are. 25 That is, they propose that the ISA or some other international body should regulate access to sites where interesting MGR may be found, and should administer a regime to distribute some of the benefits of scientific research or bioprospecting to non-participating parties. Other commentators are concerned about threats to vulnerable ecosystems in areas beyond national

the UNCLOS negotiators could not agree on a proposal by Chile labeling “the provision relating to the common heritage of mankind set out in article 136” as “a peremptory norm of general international law from which no derogation is permitted….” The University of Virginia Commentary concludes that Art. 311(6) “would not affect the validity of any amendment duly adopted in accordance with specific provisions of the Convention relevant to the concrete case.” M. Nordquist, ed., United Nations Convention on the law of the Sea 1982: A Commentary, (Dordrecht, Martinus Nijhoff, 1989), Vol. V, p.243. This conclusion is surely borne out by adoption of the 1994 Agreement relating to Implementation of Part XI, which substantially modified the regime governing exploitation of the mineral resources of the Area. 24 Many UNCLOS parties and prospective parties are understandably reluctant to open the Convention to amendment, since doing so to address one perceived defect could lead to a wholesale review of all the compromises so painfully reached during many years of negotiation. 25 States negotiating the CBD text had the opportunity to incorporate the FAO’s pronouncement that plant genetic resources are the common heritage of mankind. Instead, they adopted preambular language that declared “conservation of biological diversity is a common concern of humankind.” Farrier, pp. 216-217.

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jurisdiction, and believe access to these sites should be regulated for conservation purposes. Potential threats to marine ecosystems with interesting genetic resources have been identified as destructive fishing practices, deep seabed mining, and ecotourism, as well as marine scientific research or bioprospecting. Destructive fishing practices are certainly a threat to some types of vulnerable marine ecosystems, such as coral reefs and seamounts. Irresponsible fishing can damage or destroy the habitats of targeted and bycatch fish as well as of microfauna. The world community is now addressing these destructive practices in a variety of ways: States are controlling fishing within their EEZs and by vessels flying their flag; regional fisheries management organizations are taking steps to protect these sensitive areas, including strengthening their own mandates to take ecosystem approaches to fisheries; new regional organizations are being formed to regulate areas or species not currently covered; and the General Assembly is poised to take additional steps this fall in its annual resolution on fisheries. In some cases, where management measures can be effectively enforced, marine protected areas should be established to protect these unique ecosystems from destructive fishing practices. 26 Directly regulating the use of fishing gear is another obvious approach. As has already been mentioned, the International Seabed Authority is empowered to place conditions on mining in the Area that will protect the marine environment and prevent damage to flora and fauna at mining 26

“Unfortunately, the establishment of MPAs is rarely followed by good management and enforcement….Using levels of poaching as an indirect measurement of management performance, we found that only l88 coral reef MPAs, covering 1.5% of the world’s coral reefs,…are managed in such a way as to prevent such activities.” C. Mora, Coral Reefs and the Global Network of Marine Protected Areas, Science, 312 (23 June 2006), p. 1750.

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sites. 27 One author 28 asks how the ISA should grant exclusive exploration licenses for minerals and make that licensing compatible with research carried out at the same vents. Under the 1994 agreement on Part XI, an application for approval of a plan of work must be accompanied by an assessment of the potential environmental impacts of the proposed activities. That assessment would include anticipated effects of the exploration activities on known or anticipated research involving MGR, and would assist the ISA in preventing conflicts between the two types of activities. 29 Ecotourism at hydrothermal vents is so infrequent (perhaps one site per year in all the oceans of the world), that it does not present a real or substantial threat to vulnerable marine ecosystems in areas beyond national jurisdiction. 30 Marine scientific research in these remote areas of the ocean seems an unlikely threat, given the enormous expense of research voyages, 31 the multiplicity of sites of potential interest to scientists and bioprospectors, 32 the huge potential for disturbance of many of these sites by

27

See note 10. Phirter, p. 29. 29 Allen suggests that the ISA refrain from approving work plans covering vent sites where research on MGR is occurring, at 660. 30 L. Glowka, “Putting Marine Scientific Research on a Sustainable Footing at Hydrothermal Vents,” Marine Policy 27, Issue 4 (July 2003), fn 2. 31 The authors estimate that some 99 percent of all marine research takes place within territorial seas. They conclude that the “negative impact associated with bioprospectors searching international seas is negligible.” L. Christoffersen, Bioprospecting Ethics and Benefits: A Model for Effective Benefit-Sharing, Industrial Biotechnology 1, No. 4 (Winter 2005), p. 258. 32 There are currently six known biogeographic provinces of hydrothermal vent fauna spread around the Pacific, Atlantic, and Indian Oceans. It is likely that additional provinces will be discovered as additional spreading systems are explored in more remote areas of the deep sea. 28

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volcanic/tectonic events, 33 the care researchers take to minimize disturbance to these sites, the small number of samples that are taken at any site, and the development of technology to replicate genetic materials in the laboratory. 34 There is a potential threat, however, that repeated visits to the same site, if Mother Nature does not disturb it, might create a conflict between observational monitoring and collection activities. Is this enough of a problem to necessitate establishment of an international regulatory regime? Several authors have concluded it is not. One reason is that the scientific community has recognized the potential problem of repeated visits to the same site. InterRidge, a nonprofit organization that promotes all aspects of mid-ocean ridge research, has developed a voluntary code of conduct as a framework for balancing conservation of these sites with usability. 35 The code describes responsible

33

The InterRidge statement of commitment to responsible research practices at deep-sea hydrothermal vents notes, “The potential for significant impact of scientific activities on a single vent site or a population of vent animals pales in comparison to the potential for disturbance by volcanic/tectonic events or industrial mining/harvesting activities.” The statement can be found at www.interridge.org. As an example, one of the first hydrothermal vent sites to be discovered – “Rose Garden” – was found in 1979, and revisited in 1985, 1988, and 1990. In 2002 scientists revisited the site, but found no signs of “Rose Garden” nor of previous visits. Instead they found a field of apparently fresh lava and a new community of very young clams, mussels, and tubeworms. See also P. Tyler, “Biologists do not pose a threat to deep-sea vents,” Nature 434, 18 (3 March 2005). 34 Increased sensitivity of the bioassays that test for bioactivity of compounds has led to continuing reductions in the impact of prospecting and harvesting, and synthetic replication is seen as the only way forward. Farrier, p. 219. 35 At www.interridge.org. The recommended research practices are the following: 1) Avoid, in the conduct of scientific research, activities that will have deleterious impacts on the sustainability of populations of hydrothermal vent organisms; 2) Avoid, in the conduct of scientific research, activities that lead to long lasting and significant alteration and/or visual degradation of vent sites; 3) Avoid collections that are not essential to the conduct of scientific research;

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research practices and includes a commitment to international sharing of data, ideas, and samples to avoid unnecessary re-sampling and impact on hydrothermal vents. This code could serve as a model for research in all vulnerable ecosystems beyond national jurisdiction. Another reason for maintaining the status quo is that the compromise embodied in UNCLOS, preserving the freedom to conduct scientific research in areas beyond national jurisdiction, is not one that advocates of that freedom will readily agree to give up. Scientists in developed countries are eager to share their expertise and to build capacity in developing countries so they can more fully participate in exploring the deep sea, but they will not want to subject their research programs to the licensing and management of an international bureaucracy. We should be encouraging exploration of the deep sea and the conduct of research that enables us to understand complex marine ecosystems, not erecting burdensome rules and regulations that would hamper responsible and informed environmental stewardship. 36

4) Avoid, in the conduct of scientific research, transplanting biota or geological material between sites; 5) Familiarize yourself with the status of current and planned research in an area and avoid activities that will compromise experiments or observations of other researchers. Assure that your own research activities and plans are known to the rest of the international research community through InterRidge and other public domain data bases; and 6) Facilitate the fullest possible use of all biological, chemical and geological samples collected through collaborations and cooperation amongst the global community of scientists. 36 Christoffersen and Mathur (p. 258) note the disincentive created by several legal frameworks in South America to the number of bioprospecting and life science research projects funded in those countries. “Nations that develop burdensome bureaucratic bioprospecting legal frameworks do not help to facilitate compliance with and support for the CBD.” By analogy, the creation of burdensome legal frameworks in areas beyond national jurisdiction can be expected to provide the same sort of disincentive for research and bioprospecting projects in those areas.

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Some may respond that they have no wish to interfere with legitimate scientific research, but instead want to regulate an activity with a commercial purpose—bioprospecting. 37 One problem with that, as discussed earlier in the paper, is the extreme difficulty in differentiating between “pure” research and bioprospecting. An effort to manage bioprospecting, since it would at least have to require registration of all genetic material taken from areas beyond national jurisdiction, would inevitably sweep up academic research in its wake. Even more daunting would be the necessity of tracking the collected genetic material through the years of assays and development until a useful product emerged. The international regime governing intellectual property rights does not require disclosure of the place the biological specimen was collected, so a reliable connection between given genetic material and a particular product or process would be difficult to establish. 38 The equitable sharing of any monetary benefits from this activity—a methodology the ISA has not yet figured out for minerals in the Area—is another practical obstacle to a new regime for MGR. Even if these logistical obstacles could be overcome, consider the cost: an international bureaucracy governing access to the vast expanses of the high seas and the deep seabed, tracking the development of genetic materials into useful products, and somehow distributing the profits would be enormously expensive. Theoretically, the costs could be deducted as 37

It is interesting that Art. 4 of the Convention on Biological Diversity applies that treaty’s provisions to processes and activities carried out under each Party’s own jurisdiction and control with respect to areas beyond national jurisdiction, but, as far as I am aware, no State has yet regulated its nationals’ activities in those areas with regard to the collection of genetic resources. Leary, p. 154. 38 The IPR regime does work well in situations where the collector of genetic materials needs approval from a State of origin. It is increasingly common for the institution sponsoring the collection to make arrangements with the State of origin that include some form of benefit sharing.

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administrative overhead from the profits. If only one in every 10,000 samples results in a marketable product, however, profits from that one product will have to cover the overhead from licensing and tracking the other 9,999 samples. With odds like that, where is the incentive for potential investors in research and development? Rather than spending the next couple of decades on divisive negotiations that are unlikely to result in a workable regime accepted by the leaders in deep-sea exploration and research, the world community should turn its attention to increasing the opportunities for capacity building through these activities. Farrier and Tucker, citing a CBD review of case studies, have demonstrated convincingly that States of origin of genetic materials reap greater advantage from participation in research, technology transfer, and professional exchanges than from strictly monetary arrangements. 39 Although there are no “States of origin” in areas beyond national jurisdiction, leaders in marine research are willing, consistent with Articles 242-244, to work with students and professionals in developing countries to create non-monetary benefits. Together with the advancement of scientific knowledge and the invention of useful products and processes, enhanced scientific training and professional advancement in developing countries will promote and serve the welfare of all humankind.

39

Pp. 229-231.

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Marine Protected Areas as Management Measures: Tools or Toys? K. L. Cochrane 1 Abstract In recent years there has been growing interest in and promotion of marine protected areas (MPAs) for both biodiversity conservation and as a tool in fisheries management. This is reflected in, for example, targets set by the World Summit on Sustainable Development Plan of Implementation (2002) and the Vth IUCN World Parks Congress in 2003. The simple logic behind MPAs is straightforward and is supported by evidence from the crucial contribution of protected areas to terrestrial conservation. For marine protected areas, there is also good evidence that they frequently lead to higher densities, biomass, mean size of organisms and diversity of species within their boundaries, but that factors such as species composition, fishing intensity outside the reserve and others do influence this general result. While MPAs have also been found to have some benefits for fisheries performance beyond their boundaries, results have been mixed and the potential role of MPAs in this regard, in comparison to other management tools, will need to be carefully evaluated on a case-by-case basis. The human aspects of MPA performance have also been widely studied. A cause for concern is the high number of MPAs that have been found to be largely unsuccessful or ineffective, particularly but not exclusively in developing countries. Valuable lessons on the social and economic causes of successes and failures are being learned and it is essential that these are considered and applied as countries attempt to meet internationally agreed targets at local, national and international levels. FAO Member States have requested that the Organization develop technical guidelines on the design, implementation and testing of MPAs. Development of those 1

Fisheries and Aquaculture Management Division, FAO. The author’s PowerPoint presentation can be viewed on the accompanying CD.

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guidelines is currently underway and will be building on the best available knowledge on fisheries science and management and the role and requirements of MPAs, with particular emphasis on their potential contribution to fisheries management.

Introduction Closed areas have long been used as a fisheries management tool and evidence exists that in Sicily in the 10th century, red coral was harvested by rotation in 10 separate zones (Caddy and Cochrane 2001). The use of closed areas has persisted since then and the 1982 UN Conference on the Law of the Sea (UN LOS) specifically refers to the use of area regulation as being one of the conservation measures that may be used by coastal States in promoting optimal utilization of the living marine resources in their EEZs (Article 62, paragraph 4(c)). Marine protected areas (MPAs) are one type of area regulation: the most widely accepted definition of an MPA is that proposed by IUCN: Any area of intertidal or subtidal terrain together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment (Kelleher and Kenchington, 1992) MPAs aimed primarily at biodiversity conservation have been around for several decades, at least, whereas MPAs as a fisheries management tool have been slower in attracting global attention. In the case of fisheries, widespread and intense interest in MPAs only seems to have arisen since the UN LOS. Impetus was given to the establishment of marine protected areas for both purposes by Agenda 21 of the 1992 UN Conference on Environment and Development (Earth Summit, 3-14 June 1992 Rio de Janeiro). In Chapter 17.7, coastal states are urged to “undertake measures to

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maintain biological diversity and productivity of marine species and habitats under national jurisdiction. Inter alia, these measures might include: surveys of marine biodiversity, inventories of endangered species and critical coastal and marine habitats; establishment and management of protected areas; and support of scientific research and dissemination of its results.” The 1995 FAO Code of Conduct did not specifically identify marine protected areas as management tools, a fact which caused the participants at the Vth IUCN World Parks Congress (8-17 September 2003, Durban, South Africa) to recommend that IUCN should ‘encourage updating of the Food and Agriculture Organization’s Code of Conduct for Responsible Fisheries to include marine protected areas’. Nevertheless, the Code certainly implies the use of marine protected areas. For example, in Article 6.8 it is stated that “All critical fisheries habitats (e.g.) wetlands, mangroves, reefs, lagoons, nursery and spawning areas, should be protected and rehabilitated... Particular effort should be made to protect such habitats from destruction, degradation, pollution and other significant impacts ... that threaten the health and viability of the fishery resources.” Article 7.6.9 also addresses protected area measures: “States should take appropriate measures to minimize waste, discards, catch by lost or abandoned gear, catch of non-target species, both fish and non-fish species, and negative impacts on associated or dependent species, in particular endangered species. Where appropriate, such measures may include technical measures related to fish size, mesh size or gear, discards, closed seasons and areas and zones reserved for selected fisheries, particularly artisanal fisheries.” Arguably, the biggest boost to the establishment of MPAs in recent decades has been the Plan of Implementation of the World Summit on Sustainable Development (WSSD) (26 August – 4 September 2002, Johannesburg, South Africa). In that document it is stated (paragraph 32):

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In accordance with chapter 17 of Agenda 21, promote the conservation and management of the oceans through actions at all levels, giving due regard to the relevant international instruments to: (a) Maintain the productivity and biodiversity of important and vulnerable marine and coastal areas, including in areas within and beyond national jurisdiction;... (c) Develop and facilitate the use of diverse approaches and tools, including the ecosystem approach, the elimination of destructive fishing practices, the establishment of marine protected areas consistent with international law and based on scientific information, including representative networks by 2012 and time/area closures for the protection of nursery grounds and periods.... This paper attempts to provide an overview of some of the background to this particular goal and to consider, both within the context of the WSSD Plan and beyond, what roles MPAs are likely to be able to play in fisheries management, while also taking into account their potential contribution to biodiversity conservation. Many MPAs have been and will be established to address a mixture of the two goals and many of the relevant ecological and socio-economic principles apply, to a lesser or greater extent, in both cases. Similarly, many of the insights that have been gained on MPAs have been gained from examples that, in practice, are being used in attempts to achieve both goals. Therefore, while it focuses on MPAs for fisheries management, the paper addresses both purposes and does not make a careful and complete distinction between MPAs set up for those two purposes. The primary difference between MPAs for biodiversity conservation and sustainable use lies in the objectives and it will be necessary to consider and apply the principles and lessons learned from earlier examples in a way which maximises the likelihood of achieving the specific objectives in each case. In addition, the paper does not make a rigorous distinction between

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no-take reserves and reserves in which some extractive use is allowed. Both have a role to play and, again, the literature reflects experiences from a mixture of both. In practice, the choice will depend on the objectives for a particular MPA or network of MPAs and the local human and non-human ecological context.

Hopes and Expectations for MPAs The case for greater use of MPAs has been made by many different organizations and individuals (Jones 2006) and it would be impossible to list them all. Hilborn and co-authors (2004) described the momentum as ‘.. a wave of environmental groups, politicians and ecologists pushing for large scale implementation of Marine Protected Areas (MPAs), with many calls for protecting 20-30% of the oceans”. This escalating interest in and advocacy for MPAs, feeding into the relevant WSSD Plan of Implementation recommendation, has been fuelled by a mixture of conceptual reasoning, scientific experience and investigation and, no doubt, a measure of political opportunism in some cases. The simple logic is clear and has been amply demonstrated by the core, and diversity-saving, role that protected areas have played in terrestrial conservation: for resident or near-resident organisms effectively putting them out of bounds of fishing and any other destructive or extractive activity should ensure their survival inside the boundaries. As will be discussed later in this paper, this simple logic has been found to hold where its fundamental assumptions have been valid. Nevertheless, an examination of case studies from around the world suggests that enthusiasm has commonly outweighed science and careful planning in the implementation of MPAs. From a review of available information, Halpern (2003) reported that few reserves appeared to have

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been designed on the basis of an understanding of the effect that they can have on biological factors or with consideration to optimal design. The cries for MPAs have been strong. For example, in 1998, a group of 1 605 scientists, coordinated by the Marine Conservation Biology Institute, USA, issued a statement entitled “Troubled waters: a call for action” which called for an increase in the number and effectiveness of marine protected areas to cover 20% of the EEZs and the high seas by 2020. 2 Their call was reflected in one set of guidelines published shortly thereafter as “We need more fully-protected marine reserves, we need them now, and for starters we should aim for 20% by the year 2020!” (Roberts & Hawkins, 2000, p. 44). There have been similar, but more scientifically circumspect, calls from other groups and, for example, an expert group convened by the National Research Council of the USA to consider the goal of sustaining marine fisheries responded positively but cautiously to the growing wave, agreeing that “Recent calls for protecting 20% of potential fishing areas provide worthwhile reference points for future consideration and emphasize the importance of greatly expanding the areas currently protected” (NRC, 1999, p. 9). Building on the WSSD agreement, the Vth IUCN World Parks Congress, Durban, South Africa, 8-17 September 2003 3 , called for the establishment by 2012 of a global system of “effectively managed, representative networks of marine and coastal protected areas...” that, amongst others characteristics, “Greatly increases the marine and coastal area managed in marine protected areas by 2012; these networks should be extensive and include strictly protected areas that amount to at least 20-30% 2

http://www.mcbi.org/AboutUs/TroubledWaters.pdf. Accessed 31 July 2006.

3

http://www.iucn.org/THEMES/WCPA/wpc2003/pdfs/outputs/wpc/recommendatio ns.pdf Accessed 31 July 2006.

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of each habitat, and contribute to a global target for healthy and productive oceans”. More recently, in March 2006, Greenpeace International published a proposal for protection, through marine reserves, of 40% of all marine habitats on the high seas. In motivating the proposal, the proponents claimed that “Marine reserves are highly protected areas that are off limits to all extractive and destructive uses, including fishing. They are the most powerful tool available for the conservation of ocean wildlife.” (Greenpeace, 2006, p7).

Implementing the WSSD Plan of Implementation The section of the WSSD Plan of Implementation relating to MPAs is open to very broad interpretation. It is clear that in paragraph 32 the signatories were referring to the use of MPAs for both conservation and management, which must be interpreted to mean management of human impacts on the oceans, including but not limited to fisheries. The list of subparagraphs then includes a confused shopping basket consisting of a mixture of final goals (i.e. to maintain productivity and biodiversity); delivery of commitments (e.g. the Jakarta Mandate and the Ramsar Convention); application of tools (MPAs, time and area closures) and use of broad approaches (e.g. the ecosystem approach and integrated marine and coastal area management). The specific call related to MPAs is for the establishment of MPAs (consistent with international laws) and including representative networks. Within that confused and confusing context it would be easy to dismiss this recommendation as simply being a submission to the general and often ill-informed advocacy for MPAs which, as seen above, sometimes appears to promote MPAs as necessary and sufficient ends in themselves, rather than as one tool to contribute to the achievement of the goal of

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sustainable development. However, such an interpretation would be an injustice to the general intent and balance of the WSSD Plan of Implementation as a whole and would be counter-productive. The better approach is to attempt to interpret the sections of the Plan of Implementation relevant to fisheries and marine conservation as an integrated whole and to view the role of MPAs accordingly. With such an approach, the establishment of MPAs should seen as one of the tools to be considered in the overall goal of achieving sustainable development of oceans (Para 30 (b)) which should include sustainable fisheries (Para. 31 header); maintaining or restoring stocks to levels that can produce the maximum sustainable yield (Para 31 (a)); giving due consideration to the rights, duties and interests of coastal States and the special requirements of developing States (Para 31 (e)); support the sustainable development of aquaculture (Para 31 (h)); maintain the productivity and biodiversity of important and vulnerable marine and coastal areas, including in areas within and beyond national jurisdiction (Para. 32 (a)); and protection of the marine environment from land-based activities (Para. 33 (d)). A fundamental conclusion from such an analysis is that MPAs should not be seen as a justifiable end in themselves, but as a tool towards this overall WSSD goal for oceans. Nevertheless, it is useful to consider what is intended by the term MPA compared to e.g. an area closure (Para 32 (c)). This was discussed at a workshop of MPA and fishery experts from around the world held by FAO in June 2006. That group avoided attempting to provide a new and precise definition of an MPA, as the participants thought that, with the existing general level of agreement, this would be time-consuming and counter-productive. However it did agree on five features that would characterise an MPA as a fishery management tool. These were that such MPAs (FAO 2007):

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x

x x

x x

are intended to contribute to achieving conservation and sustainability objectives of fisheries management, while contributing to biodiversity and habitat conservation (with intended or unintended social and economic consequences); are temporally and geographically specified in three dimensions for a portion of the geographic range of the fishery management unit; would afford fishery resources a higher degree of protection within the geographic boundaries of the MPA than the resource is afforded elsewhere within the geographic range of the fishery management unit; are established through legally binding mechanisms and/or other effective means; and are usually expected to have resource conservation and sustainability benefits, other ecological benefits, and/or social benefits, beyond the boundaries of the MPA.

In the view of this author, those characteristics are generally consistent with but complement the IUCN definition, with the one new feature of allowing for three-dimensional specification and limitation, as opposed to the concept in the IUCN definition of the terrain and all the overlying water. The five features also clarify that MPAs are temporally specified and therefore, by implication, could be temporary. They are referring to MPAs as fisheries management tools and draw attention to the need for MPAs to contribute to specific objectives, and as being specified in relation to a particular fishery management unit, or area. National, local and international planners considering the use of MPAs to facilitate achieving the goal of sustainable use of marine ecosystems must consider the costs and benefits, in comparison with other tools, that would result from their effective use, and whether MPAs could complement existing tools. They also need to be aware of the pre-requisites for effective implementation. These are the questions that will be addressed in the FAO Guidelines when they have been completed. This paper presents

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a brief and preliminary introduction to some of the relevant information that is currently being assembled.

Lessons Learned Problems and failures One of the justifications for the use of MPAs in fisheries management is that conventional measures for management of fisheries and biodiversity conservation have failed and this new tool is therefore required (e.g. Agardy, 2003; Roberts and Hawkins, 2000). This argument, however, fails to recognise the complex and varying reasons for failures in fisheries where they have occurred, the success stories in fisheries, or some of the harsh realities that are being learned from attempts to establish MPAs. One of the most favoured targets for implementing MPAs of both types (conservation and sustainable use) and one of the best studied has been the Philippines. As of 2001, over 400 MPAs had been established in the Philippines, driven by government policy, international aid, universities and NGOs. However, at that time there were also reliable estimates that only 20 to 25% of those MPAS had been successful (Pollnac et al. 2001). Painting a similar picture for the Caribbean, a recent study identified 285 designated MPAs in 35 States and territories in the Caribbean (WRI 2004). Of that total, only 6% were considered to be effectively managed and 13% to have partially effective management. Of the remainder, nearly half were considered to have ineffective management and thus offered little protection, while the status of management in the remainder was unknown (WRI 2004). Without specific reference to the Caribbean or the results of the study, lack of long-term financial support and a lack of support from local communities were listed as common causes of MPA failure. WRI (2004) also stated that the latter, lack of local support, was commonly a

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result of inadequate local involvement in planning and the absence of a share in the financial and other benefits from MPAs. The problem is not limited to developing countries and, for example, problems with enforcement have been reported for the Great Barrier Reef Marine Park (Jones 2006). WWF 4 reported that less than 10% of MPAs at a global level were achieving their management goals and objectives, but they did not indicate how this had been estimated, other than to report that nearly all MPAs are open to tourism and recreation and that 90% are open to fishing. The organization stated that some of the reasons for failure were conflicting objectives from a range of different users and inadequate budgets and staff which meant that in most cases the fundamental management functions such as monitoring, control and surveillance (MCS) could not be carried out effectively. These examples suggest that, far from providing a simpler or more reliable management tool, MPAs suffer from the same implementation problems and pitfalls as do other fishery management measures (Hilborn et al. 2004). These problems include high biological (and ecological) uncertainty, conflicts between conservation and sustainability goals and shorter-term social and economic goals, poorly defined objectives and institutional failures, in particular related to access rights and participatory management (Cochrane 2000). The use and advocacy of MPAs, which as discussed below have undoubted potential benefits for fisheries and biodiversity conservation, need to take account of this reality. In addition, it is essential for fisheries and conservation managers to recognise that the establishment of MPAs should not relieve decision-makers and managers

4

http://www.panda.org/about_wwf/what_we_do/marine/problems/inadequate_protec tion/index.cfm. Accessed 31 July 2006.

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from their obligations to manage and protect fishery resources and ecosystems outside MPAs. The close link between the advocacy of various groups and the policy goals being set at various inter-governmental forums is no coincidence and it has to be recognised that the loud voices of advocacy have served to publicise a sometimes neglected tool in the tool-box of fisheries management. In so far as MPAs will serve to supplement and boost existing fisheries management and biodiversity conservations efforts, and the evidence available does indicate this potential, increasing awareness and action must be recognised as a positive achievement. However, if the claims and expectations are over-simplified or over-stated, and many consider that they have been (e.g. Hilborn et al. 2004; Agardy et al. 2003) there is a serious risk that they will become counter-productive. A further area of concern is the advocacy of blanket targets for percentage cover, such as those described in the section on ‘Hopes and Expectations’. Agardy et al. (2003) caution against this approach, stating, “The blanket assignment and advocacy of empirically unsubstantiated rules of thumb in marine protection provides dangerous targets for conservation science and may inflate expectations of end results, risking the abandonment of MPAs by decision makers as a management tool that was tried and failed”. Ill-informed and over-optimistic implementation of MPAs will result in failures through poor design and poor implementation. Those failures will mean a waste of time and resources that could probably have been better used elsewhere and may well mean unjustifiable damage done to individuals’ livelihoods. Repeated experiences of this nature could lead to a backlash of suspicion and resistance from stakeholders, making it harder to gain acceptance for MPA developments in the future, even where appropriate and well-considered. Finally, the great focus being put on

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MPAs as a tool that can solve the problems of conservation of the oceans runs the risk of diverting limited and already over-stretched international, national and local capacity from other priorities and approaches that, in many cases, may have been more effective and appropriate for the problems being addressed. There is a risk that the establishment of MPAs will become a goal in its own right, losing sight of the fact that it is one tool, potentially a useful tool, in a set of many other potentially useful tools for achieving the true end-goal of sustainable, equitable and optimal use of marine ecosystems.

Ecological Benefits within MPAs In an extensive review into the impact of marine reserves in which there was no known harvesting, Halpern (2003) concluded that there was overwhelming evidence that reserves ‘were associated with’ higher densities, biomass, mean size of organisms and diversity of species (Table 1). Summarising, he suggested that, on average, the creation of a reserve leads to double the density, nearly triple the biomass and an increase in the mean size of individuals and biodiversity in the area protected of between 20 and 30%. However, he also warned that those means had a high variance and could not be used for predicting the response in specific cases. Factors that could contribute to this variance include species composition, fishing intensity around the reserve, the mobility of adult fish and the habitat types inside and outside the reserve. Botsford et al. (2007) reported on a number of other meta-analyses that produced similar results. A study by Mosquera et al. (2000, cited in Botsford et al. 2007) considered data from 12 studies that covered 346 fish species. These authors concluded that fish abundance was three times higher on average within reserves compared to outside but with large

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differences in response between the different species included in the study. Much of this difference was considered to be a result of the impact of fishing and only those species that were targeted by fisheries outside the reserves showed significantly higher densities inside the reserves. Botsford et al. reported on another study (Micheli et al. 2004) which also found that species targeted or taken as bycatch by fisheries, including those selected by the aquarium trade, benefited, in terms of increased biomass inside the boundaries, from the establishment of reserves while those that were not exploited did not.

Table 1. Differences in key biological indicators estimated inside and outside reserves or, in some cases, before and after reserve establishment for all species groups combined. The body of the table shows the percentage of cases recorded that fitted the criterion described in the column headings. From Halpern (2003). Biological indicator

% cases of higher inside reserve 63

Density (no./area) 90 Biomass (mass/area) Mean size of 80 organism Total species 59 richness

% cases with no % cases of lower inside significant difference reserve 30 7 10

0

18

2

31

10

MPAs may also be used as a means of ensuring protection of critical habitats (Fogarty 1999). An informative example of the potential benefits of habitat protection can be seen in the North West Shelf region of Australia (Sainsbury et al. 1997). Trawl fishing took place in the region, particularly from 1971. Research surveys indicated a decline in the

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abundance of high valued fish and of epibenthic organisms occurring with the development of the trawl fishery. In an attempt to improve returns from the resource, an investigation, involving the establishment of three contrasting management zones, was launched into the possibility of reversing the decline of the high value species. The results from the two areas most amenable to comparison showed that in the area closed to trawling, the density of fish and the abundance of small benthos increased while the abundance of large benthos remained approximately the same. In the area open to trawling, the abundance of all three groups decreased. Analysis of the results and further investigations led the authors to conclude that habitat had a large impact on the relative species composition of the fish community in the region and that habitat protection, for example closing areas to damaging trawling, would enable yields of the high value species to be obtained in this case. Comparable results have been obtained from Georges Bank in the north west Atlantic where studies concluded that the mobile fishing gear used there damaged benthic megafauna, which can provide important habitat for fish and crustaceans. Protecting areas from such gear was found to lead to recoveries. (Lindholm et al. 2004; Hermsen et al. 2003). The study by Lindholm et al. (2004) found that while there were significant differences between fished and unfished areas for some habitats (shell fragment and sponge microhabitat), there were no significant differences for other habitat types. They concluded that, where there were no significant differences, it may have been because the intensity of fishing in those areas did not exceed the systems’ recovery rates. In another example, no consistent difference in biomass was found between the fauna in a 10 000 km-2 area closed to prawn trawling in the Great Barrier Reef Marine Park in north east Australia and two adjacent areas in which fishing took place. Reporting on the results of the study,

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Burridge et al. (2006) suggested that the lack of significant difference could have been because the intensity of fishing in the open areas was relatively light and unevenly distributed, there was some illegal fishing in the closed area, and the complexity of the region in terms of fauna and habitat diversity may have confounded the study. Overall, the impacts of trawling on the environment are complex and affected by the nature of the fauna, substrate and water depth (Burridge et al. 2006) and the benefits to be obtained from closing areas to trawling are therefore likely to be equally complex. A recent study on the Mesoamerican reef system in Belize and Mexico also demonstrated the importance of habitat to some fish species. In that study, it was found that mangrove habitat has an important bearing on the fish community in adjacent coral reef habitats and that the biomass of some commercially-exploited species on reefs adjacent to mangrove habitat was double that of reefs where there was no connection to mangroves. The authors reporting on the study suggested that management regimes should therefore ensure such connected habitats were protected in combination (Mumby et al. 2004).

Ecological Benefits Beyond MPAs If an MPA or network of MPAs is to have benefits for fisheries, then there must be export of biomass of fished species from within the MPA to areas beyond the reserve where they can be fished. This export can potentially occur either as early reproductive products which will subsequently lead to higher biomasses of exploitable fish outside the MPA, or as ‘spillover’ of adults from the MPA to fishing areas. Interesting information on spillover from large, temperate MPAs was reported by Murawski et al. (2004). They reported on estimates of

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spillover from four MPAs that were created, starting in 1994, on the shelf of New England, USA. The study differentiated between what the authors referred to as ‘true spillover’ and other movements resulting from seasonal or ontogenetic patterns and environmental forcing. ‘True spillover’ is characterised by an increase in biomass or abundance outside the MPA which should decrease with increasing distance from the boundary. Their analysis of 51 combinations of species within particular areas found significant evidence of spillover in only five of those combinations, involving haddock Melanogrammus aeglefinus and different species of flounder. These results led the authors to conclude that: An important conclusion of our work is that the placement of reserves in temperate seas requires considerable forethought regarding the species for which protection is sought, importance of fisheries enhancement versus biodiversity protection, and the benefits of MPAs and other alternative management tools relative to the costs of implementation and their likelihood of success. In a very different environment, the catch per unit of effort (cpue) in the vicinity of a coral reef reserve in Kenya was found to have increased by approximately 50 percent over seven years, mainly as a result of spillover of moderately mobile species (Botsford et al. 2007, citing McClanahan and Kaunda-Arara 1996; and McClanahan and Mangi 2000). Despite this local increase in catch rates, the reduced size of the fishing grounds led to a 30 percent reduction in total catches following the establishment of the park. In Apo Island, Philippines, fishers were excluded from 10 percent of the fishing grounds. The mean cpue increased approximately 10-fold from the time the reserve was established in 1982 up until 2000/2001, the latest year reported (Maypa et al. 2002). This has not led to an increase in total yield from the area, however, which has remained constant at between 19 and 25 t.km-2 for the two decades. Reef fish

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accounted for 15-20 t.km-2 of this total. Effort declined substantially during this period possibly because of the higher catch rates being achieved and the fact that additional income is being earned from tourism in the area. The authors of the paper reporting these findings suggested that the results are consistent with the existence of spillover of biomass from the reserve but insufficient to prove it. Such empirical information is valuable but often only indicative and inconclusive. Attempts are being made to supplement empirical evidence with modelling studies. Simulation allows for rapid testing of different scenarios and for replication, both commonly impossible in practice in empirical studies, but the results of modelling studies are very heavily influenced by assumptions and other uncertainties in the model. In one study, a spatial model based on Icelandic cod was used to examine the expected consequences of effort controls, catch controls and area closures, singly and in combination (Stefansson and Rosenberg 2005). Performance of different management options was measured in terms of avoiding overexploitation and economic yield. The study concluded that combinations of management measures should be used where possible and that closed areas added robustness in the face of uncertainty, provided they were ‘large’ and fishing mortality was effectively prevented in the areas. A complementary modelling study, also using a spatially disaggregated model, examined the impact on performance of adding MPAs (which they defined as excluding fishing) to fisheries in which catch regulation was already taking place (Hilborn et al. 2006). They concluded that the consequences of introduction of an MPA to a fishery depends on the regulations already in place and that there were no catch benefits from an MPA unless the stock was so overexploited that it would become extinct without the use of an MPA.

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There are many other examples of such modelling studies (e.g. Botsford et al. 2004; Rodwell and Roberts 2004). Collection of reliable empirical information is costly and slow, and the actual effects of MPAs on performance measures will frequently be obscured by other human and environmental factors. As a result, modelling studies such as these are going to have to be a key source of information when MPAs are being considered as fisheries management tools but are themselves prone to error as a result of high levels of uncertainty and inevitable simplification of reality, and need to be considered with great caution and scientific circumspection. Overall, even combining the results and conclusions gleaned from both empirical and modelling studies, the ability to forecast the effects of marine closures on yields outside protected areas is likely to be very limited in the foreseeable future. Responsible use of MPAs for this purpose will need to proceed on the basis of using the best available information in a precautionary manner, careful evaluation of the positive and negative aspects of different tools, and an adaptive approach in order to maximise the chances of success and minimise the risks of unexpected problems.

Social and Economic Perceptions and Responses Whether established exclusively for the purpose of conservation of biodiversity, purely as a fishery management tool or for a combination of both, in most cases the establishment of an MPA will have social and economic implications for affected users. It is essential that the likely costs and benefits are identified and taken into account in the decision to use an MPA and in the design process. One potential benefit of MPAs is biodiversity conservation, which in some circumstances may also lead to indirect social and economic benefits such as eco-tourism and improved productivity and other services from an ecosystem. As a fishery

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management tool, a protected area will be intended to regulate fishing activity in a manner that contributes to achieving the biological, economic and social objectives for the particular fishery. It may do this, as examined in preceding sections, for example, by protecting specific vulnerable life stages of a species, by precluding or reducing bycatch of non-target species, protecting habitat important to target species and buffering against uncertainties. On the other hand, the potential costs of establishment can include hardships for local fishers and others depending on fisheries for their livelihoods excluded from or constrained in using the proclaimed area, negative impacts on coastal communities, and loss of customary access and use rights (Helvey 2004). As an aid to evaluating likely costs and benefits, there is currently a lot of valuable information on the response of humans to the establishment and implementation of MPAs and on the social and economic consequences and performance of MPAs (e.g. Christie 2004; Christie et al. 2002; Fiske 1992; Pollnac et al. 2001; Pomeroy et al. 2007), notwithstanding concerns that the literature on MPAs is dominated by biologically-oriented studies (Christie 2004; Fiske 1992). Some core lessons for the design and implementation of MPAs are emerging from the experiences described in this literature that, if applied in practice, could make a substantial contribution to improving the effectiveness of MPAs. There are many well-studied examples of social and economic impacts. In a study of MPAs on Balicasag and Pamilacan Islands in the Philippines, Christie et al. (2002) argued that, notwithstanding their limitations and mixed results, community-based MPAs had been a success story there. These authors referred to the role of the MPAs in maintaining the health and coverage of coral reefs and the abundance of associated fish populations in the protected areas. They also reported that the approval ratings from the community in each case increased between 1986,

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approximately when the MPAs were established, and 1999. The fish yields around the reserves had not been monitored but the authors noted that, based on other comparable studies, it could be expected that they would have increased or stabilised. However, Christie et al. (2002) also highlighted substantial problems that had been experienced.

Most

significantly, the role of the local community in managing the protected area in Balicasag Island was largely taken over by a government tourism authority which established a resort in the area. Dive tourism had increased substantially but only a small proportion of visitors stayed on the island, inhibiting larger revenue increases for the general community. In contrast, the Palmilacan MPA had been carefully protected by the local community and did not encourage diving in the sanctuary. Despite the valuable contribution made by the MPAs in both areas, they had not been able to reverse the trend of declining fish abundance and diversity in the areas bordering the MPAs and, while overall abundance of fish in the sanctuaries had been maintained, the abundance of fishery target species had declined. With those mixed results, Christie and his co-authors argued that management of the MPAs could be improved. Means of improvement included, for example, ensuring sustained support from governmental and non-governmental sectors, in particular the local municipal government, ensuring responsible tourism with local collaboration and benefits, and ensuring effort was limited to appropriate levels. Two key issues emerging from this study were: i) whether the MPAs were being managed fairly, in accordance with the agreements reached through the consultative process, and the consequences if they were not; and ii) whether MPAs used in the absence of complementary management of fishing effort in the surrounding areas will still lead to increases in abundance beyond the MPA (P. Christie, U. of Washington, pers comm.). The current weight of evidence suggests

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maintaining the support of the community and supplementary fisheries management efforts will be essential for realising the benefits of MPAs. A paper considering the role of MPAs in sustainable coastal livelihoods in the Caribbean posed the question as to why, when tourism in the region was booming, was there not a parallel reduction in poverty (CANARI, 2005)? That paper reported that MPAs could either benefit or harm coastal communities but that valid assessments of the impact of MPAs on local inhabitants had not been a part of official planning. Thus, for example, development programmes boosting high-return uses such as tourism and high-income housing frequently had negative impacts on the poor. As in the Philippines, one common consequence of this was conflicts between fishers and the planners and state agencies. Tensions between traditional, local fishers and the tourism and diving industry, predominantly white and of foreign origin, created serious difficulties in the implementation of the Soufriere Marine Management Area in St Lucia. Fishers found themselves in a position where, through giving up access to some reefs, they were paying most of the costs, while the dive industry enjoyed instant returns (Sandersen and Koester 2000). Similar results have also been reported from cases in Africa. In a meeting of fishworker organizations, NGOs, research institutions, universities and policymakers from 13 Indian Ocean coastal countries including Kenya, Tanzania, Mozambique, South Africa and Seychelles, it was reported that experiences had been mixed in terms of benefits to local communities and a number of concerns were raised about the implementation of MPAs (ICSF 2006). These included the view that problems were still being experienced in achieving the right balance between conservation and people’s livelihoods and that there was need to find suitable alternative livelihoods, thereby reducing peoples’ dependence

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on marine and coastal resources. Some, from Kenya, Mozambique and Zanzibar, referred to the same distributional problem that has been experienced in the Philippines. In all three countries, fishers felt that their interests had been ignored and they had lost access to fishing grounds and resources, with preference given to tourism (ICSF 2006). In some cases, entire islands had been leased to private tourist operators and investors. Some stated that when hotels were being developed, strong promises of employment had been made to locals but that access to fishing grounds had been lost and the employment promises never materialised. At the same meeting, it was suggested that use of MPAs needs to be approached as a long-term venture, rather than pursuing a short-term, project-based approach. This refers to the common problem, particularly in developing countries, of sustaining MPAs once they have been established, The overall enforcement of MPAs was considered by the participants at the workshop to be generally poor. It was also suggested, though, that an integrated coastal area management (ICAM) programme in Kenya had increased the profile of fishers, resulted in them gaining access to water and landing centres and receiving training of various types. Reference was also made to the benefits for fishing communities of a legal requirement that there should be access to the sea every 100 metres along the coastline. Process is clearly important in considering, designing and establishing MPAs and participation is a key ingredient. In a comparison of two USA national marine sanctuaries, one in Puerto Rico and the other in American Samoa, Fiske (1992) reported markedly different progress, with one (American Samoa) ending in success and the other (Puerto Rico) in failure. Fiske suggested a number of reasons for the difference, one of which was the profound difference in relative political complexity. In the successful case of Samoa, where the indigenous social structure and values

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were still largely intact, traditional social structure and use practices were incorporated into the plan. In contrast, Puerto Rico was much more complex politically and groups that felt excluded from the process were quick to promote dissent. This comparison perhaps parallels the conclusion by Pollnac et al. (2001) that small population size (which is likely to be positively related to political complexity) is a factor increasing the likelihood of success. In a review prepared to assist FAO in the development of Guidelines, Pomeroy et al. (2007) wrote that MPAs are likely to impact on the four primary dimensions of poverty (wealth, health, political empowerment and education) but that there is variability about the impacts. An important feature of MPAs is that the costs of MPA establishment tend to be concentrated (in space and in people affected) but the benefits are diffuse (Hanna 2004 cited in Pomeroy et al. 2007). In common with limiting access in fisheries, those who benefit from MPAs through access to resources may receive increases in income and food security while those who lose access are likely to lose those benefits. Two more examples of the problems and conflicts that can arise from contested distribution of benefits can be found in the Philippines (Christie 2004). In both cases, Twin Rocks and Bunaken National Park, fishing interests had been excluded from control and an equitable share in benefits by tourism interests which had gained substantial advantage from the establishment of the MPAs. An additional dimension to the problem in both cases was that the tourism beneficiaries, particularly dive operators, tended not to be from the local communities while the fishers were locals. Another example of a conflict between user groups comes from attempts to establish a marine reserve within the Channel Islands National Marine Sanctuary in southern California, USA. In that case, it was a conflict between those proposing the

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reserve, who were strongly influenced by the goal of preserving ecosystem biodiversity, and the fishing community which was concerned about impacts on its livelihood (Helvey 2004). Helvey (2004) proposed that five primary factors hindered progress in the negotiations. These included: the unintentional over-emphasis on the goal of preserving ecosystem biodiversity; basing the policy on habitat quantity using poorly established percentage targets; failure to recognise that the benefits of MPAs for fisheries are very uncertain; failure to use the expertise of fishery science; and poor timing in the presentation of analyses of socio-economic consequences of different options. These examples highlight the concerns and vulnerability of fishers and fishing communities in our rapidly changing world. Reference to them should not be interpreted as meaning that fishers and their interests should always be given priority, but in any fishery and coastal zone management decisions, it will be essential to assess the impact on the fishers, and other dependent stakeholders, and take steps to avoid or mitigate unavoidable negative impacts. This is consistent with the Code of Conduct for Responsible Fisheries which states that management measures should take into account, amongst other factors, ‘the interests of fishers, including those engaged in subsistence, small-scale and artisanal fisheries’. Coastal communities in general and fishers in particular are confronted at present with considerable uncertainty caused by natural variability in the resource base, frequently declining resources as a result of over-exploitation, limited access to alternative livelihoods, competition with a number of other powerful sectors, population growth, conflicts over resources and, mainly but not exclusively in developing countries, poverty (Pomeroy et al. 2007). Pomeroy et al. (2007) pointed out that the social impact of MPAs on poverty has not been well studied. This is an

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unfortunate gap as the eradication of poverty was recognised in the WSSD Plan of Implementation to be one of three essential requirements for sustainable development (the other two are changing unsustainable patterns of production and consumption, and managing the natural resource base). Cochrane (in press) argued that lasting, global reconciliation of natural resource use and conservation will only be possible if, amongst other requirements, poverty is eliminated. Design and implementation of MPAs in areas where poverty is a significant factor must to take this into account. The presence and extent of specific threats to sustainable development and use will vary from case to case. Management for conservation and of fisheries, including where appropriate the design and implementation of MPAs, must take into account the specific threats and opportunities in each case. This will require consideration of the diversity, adaptations and adaptability of all users likely to be affected, the incentives they have and their vulnerability to disruptions (Pomeroy et al. 2007).

Compliance and Enforcement In addition to the ethical need to consider and address undesired negative impacts on stakeholders, particularly the most dependent and vulnerable, there is also a very practical need to ensure that stakeholders do not feel excluded from or aggrieved by the establishment of MPAs. Overreliance on top down approaches is widely recognised to have been one of the primary causes of the frequent failures in conventional fisheries management (e.g. Cochrane 2000) and the same caution applies to MPAs (Christie and White 2007; Pomeroy et al. 2007) . The degree of involvement of fishers and other stakeholders in the design and management of MPAs has a major impact on the extent of their voluntary compliance (Jones 2006; Christie and White 2007; Pomeroy et al. 2007).

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Failures in enforcement and compliance are also an important contributor to the high failure rate in MPAs reported above. Capacity for effective enforcement is typically more limited in developing countries than in developed countries but the problem, and corresponding need for boosting compliance, is by no means limited to them. Effective enforcement is a problem in the Great Barrier Reef Marine Park, Australia, for example, especially for the more remote protected areas (Jones 2006). Jones (2006) pointed out that a target of 20 – 30 percent protection of marine areas, which is within the range frequently advocated by various groups, equals between 72 and 108 million km2. This would unquestionably provide a major challenge for designated enforcement agencies. Christie and White (2007) identified four fundamental governance systems pertinent to MPAs: traditional, bottom-up management, comanagement and centralized management. They reported that bottom-up approaches have a number of important advantages including: they engage resource users leading to a sense of trust and ownership by participants, thereby increasing collaboration; they are more tuned to local conditions as a result of the very good local knowledge of participants; and they should lead to sustainable, long-term management systems. These authors also described some major challenges in using bottom-up approaches. These include the widespread unfamiliarity of resource users with such approaches and the need to create incentives for them to participate; the length of time required to develop a functional and sustainable system and the need for external support until such time as the management institution has the capacity to run on its own; and the difficulties of scaling local, bottom-up approaches to cover larger scales (for example scaling up from local management of nearby coral reefs to an integrated ecosystem approach across the entire coastal shelf). They suggest that co-management is a

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compromise between bottom-up and centralised management and has the potential to be the best approach. A co-management approach combines the advantages of local buy-in and participation with the capacity and authority of the government authority. However, co-management is also susceptible to failure and needs to be able to address satisfactorily power struggles and conflicts.

Towards Guidelines on Best Practices The preceding sections provided some insights into the existing state of knowledge and uncertainty in relation to the use of MPAs in biodiversity conservation and as tools in fisheries management. These experiences and insights need to be analysed and synthesised to identify, as far as possible, the best-practices for design, implementation and testing of MPAs for biodiversity conservation, as tools in fisheries management, or a combination of the two. Again, we find that good progress is being made in this synthesis as well. One formal, scientific attempt, of necessity limited in scope, was undertaken through the type of meta-analysis described in the section above on ecological benefits within MPAs. Pollnac et al. (2001) examined the performance of 45 community-based MPAs in the Visayas region of the Philippines. The authors cautioned that they did not know whether their results would be valid if applied outside the Visayas region, but the results and conclusions are nevertheless of considerable interest in the search for best-practices. The authors measured the success of the MPAs included in their study in terms of five indicators:

x x

measurable increases in the quality and quantity of flora and fauna, including corals; community members’ perception of the impact of MPAs on the resources;

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x

x x

the establishment and maintenance of physical features they considered to be central to the functioning of a community-based MPA such as marker buoys and signposts, a management plan and a management committee; the extent of compliance with the rules of the MPA; and the extent to which the community had been empowered to manage their own resources.

Stepwise multiple regression was used to determine the most important factors associated with success and the following six factors were identified:

x x x x x x

a relatively small population size; a perceived crisis in relation to fish populations; the implementation of successful projects for alternative incomes; a high level of community participation in decisionmaking; ongoing support from the organization responsible for the initial implementation; and inputs from the municipal government.

In a study on the obstacles that can be expected in trying to achieve proposed global targets for no-take zones, Jones (2006) reviewed relevant literature on common pool resources. He concluded that there are seven primary obstacles, described by him as collective action problems, likely to arise. He categorised them as divergent aims, problems of predictability, different knowledges, the role of advocacy, locality, the level of decisionmaking, and enforceability. These are but two examples of many objective attempts to get to the core of what makes for successful MPAs. Notwithstanding the reality that each case will vary in all its dimensions: biological; ecological; social; economic and legal, which prevents application of recipe-book solutions, there is a wealth of valuable experience and knowledge available to provide

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support in the design and implementation, or improvement, of existing, MPAs. In studying and applying this information, care needs to be taken to distinguish objective and scientifically-verified advice and information from that provided for the purposes of advocacy.

Conclusions A number of sets of guidelines on different aspects of MPA design, implementation and management have already been produced by, for example, IUCN, WWF and other organizations. FAO now has the task of adding to this collection with another set. Some may question the need for yet one more publication on this theme but few would deny that the perfect set of guidelines has yet to be written; the need for good guidelines is particularly urgent now as countries rush to try to fulfil their WSSD commitments; and experience with MPAs continues to accrue so that regular, high quality updates of existing material are likely to be valuable. Further, most of the experiences and guides on MPAs to date have focused on biodiversity conservation. Rigorous consideration of the impacts of MPAs on fisheries and their potential for assisting in fisheries management have been relatively neglected. Guidelines on MPAs for fisheries management must address the issue of identifying the most appropriate management tools for a particular case, and whether or not those tools should include MPAs. If MPAs are identified as having a role to play, the next questions are, how and where. The considerations and processes for designing and implementing MPAs as a tool in fisheries management encompass many of the principles applicable to an MPA established purely for biodiversity conservation, but have different emphases in some places and additional considerations. A tentative list of topics to be considered for inclusion in the FAO guidelines is shown in Table 2.

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Overall, it is hoped that FAO, building on the available information, expertise and guidelines, should be able to bring additional and frequently neglected fisheries expertise and perspectives to the task. Helvey (2004) proposed that failures to recognise that the benefits of MPAs for fisheries are very uncertain, and to use fishery science expertise were two of the five factors that prevented successful participatory planning on closures in the Channel Islands National Marine Sanctuary, California. Some MPAs are intentionally established with a sole objective of biodiversity conservation but in other cases the weaknesses in the Channel Island process, broadened to include neglect or omission of fisheries science and fisheries objectives in general, have been a contributory cause to failures and conflicts surrounding MPAs around the world. FAO has the privilege of being able to draw on an excellent, global network of aquatic and fisheries scientists, managers and other experts from governmental, non-governmental and academic organizations. With inputs and support from that network, it is hoped that the Organization will be able to add to the available knowledge resources and thereby contribute to the urgent goal of more appropriate and effective use of MPAs within the context of fisheries. Acknowledgements Jorge Csirke and Jessica Sanders (FAO), Patrick Christie (U. of Washington) and Mike Sissenwine are all thanked for helpful comments on an earlier version of this manuscript.

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Table 2. Some possible topics to be considered in guidelines on the design, implementation and review of MPAs as a tool for fisheries management A. BACKGROUND I. What is an MPA? 1. Definition of an MPA and types of MPA 2. Potential impacts and results of MPA use on stocks and ecosystems a) Likely impacts and results inside reserves b) Likely impacts and results outside reserves 3. MPA networks: biological and ecological considerations II. MPAS within the fisheries management process 1. The nature and goals of fisheries management (under an ecosystem approach) 2. Fisheries management: science-based, consultative and adaptive 3. Properties of MPAs as a management tool and comparison with other tools 4. Factors that can affect the impacts and results of MPAs on stocks and ecosystems 5. MPAs and broader considerations e.g. sectoral planning, ICM. B. DESIGN B.1. The design process III. Setting goals and objectives IV. Baseline assessment, issue identification and prioritisation 1. Recognition of a need and programme preparation 2. Integration with community/stakeholders and assessment of issues V. Plan preparation and adoption B.2 Considerations in Design VI. Legal Regime VII. Governance and management strategies VIII. Biological and ecological considerations 1. Designing the physical features 2. Data and information availability and use, including traditional knowledge 3. Combining the use of MPAs with other management measures 4. Advantages and disadvantages of the use of MPAs compared to other measures

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IX. Social considerations 1. Integration of stakeholders, including coastal communities and traditional practices 2. Addressing societal objectives 3. Equity considerations X. Economic Considerations 1. Costs and benefits 2. Incentives and compensation XI. Institutional Issues and Options (including long-term financial and institutional viability) C. IMPLEMENTATION XII. Implementation process XIII. Conflict resolution XIV. Capacity-building and involvement.

strengthening

community/stakeholder

D. REVIEW AND MONITORING XV. Indicators and information to be collected XVI. Strategy and mechanisms for information collection, storage and analysis. XVII. Periodic management review and adaptation XVIII. Feedback into information management, education and outreach

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References Agardy, T. An environmentalist’s perspective on responsible fisheries: the need for holistic approaches. In M. Sinclair and G. Valdimarsson (eds) Responsible fisheries in the marine ecosystem. Wallingford: FAO and CABI Publishing, 2003, pp 65-85. Agardy, T, P. Bridgewater, M.P. Crosby, J. Day, P.K. Dayton, R. Kenchington, D. Laffoley, P. MacConney, P.A. Murray, J.E. Parks and L. Peau. Dangerous targets? Unresolved issues and ideological clashes around marine protected areas. Aquatic.Conserv: Mar.Freshw.Ecosyst., 13 (2003), 353-367. Botsford, L.W., F. Micheli and A.M. Parma. Biological and ecological considerations in the design, implementation and success of MPAs. In Report of the Workshop on the Role of MPAs in Fisheries Management, Rome, Italy, June 2006. FAO Fisheries Report. Rome: FAO (2007, in press). Botsford, L.W., D.M. Kaplan and A. Hastings. 2004. Sustainability and yield in marine reserve policy. American Fisheries Society Symposium, 42 (2004), 75-86. Burridge, C.Y., C.R. Pitcher, B.J. Hill, T.J. Wassenberg and I.R. Poiner. A comparison of demersal communities in an area closed to trawling with those in adjacent areas open to trawling: a study in the Great Barrier Reef Marine Park, Australia. Fish.Res., 79 (2006), 64-74. Caddy, J.F. and Cochrane, K.L. A review of fisheries management past and present and some future perspectives for the third millenium. Ocean.Coast.Management, 44 (2001), 653-682. Cochrane K.L. What Should We Care About when Attempting to Reconcile Fisheries with Conservation. In Proceedings of the 4th World Fisheries Congress, Vancouver, Canada, May 2004. Bethseda: American Fisheries Society, In press. Cochrane, K.L. Reconciling sustainability, economic efficiency and equity in fisheries: the one that got away? Fish and Fisheries, 1 (2000), 321. CANARI. Marine protected areas and sustainable coastal livelihoods. CANARI Policy Brief, 5 (January 2005) 4. Christie, P. and A.T. White. Best Practices in Governance and Enforcement of Marine Protected Areas: an Overview. In Report of the Workshop on the Role of MPAs in Fisheries Management, Rome, Italy, June 2006. FAO Fisheries Report. Rome: FAO (2007, in press).

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Christie, P. MPAs as biological successes and social failures in Southeast Asia. In Aquatic Protected Areas as Fisheries Management Tools: Design, Use, and Evaluation of These Fully Protected Areas. J. B. Shipley (editor). Bethesda: American Fisheries Society (2004), 155164. Christie, P., A.T. White and E. Deguit. Starting point or solution? Community-based marine protected areas in the Philippines. Journal of Environmental Management 66 (2002), 441-454. FAO. Report of the Workshop on the Role of MPAs in Fisheries Management, Rome, Italy, June 2006. FAO Fisheries Report. Rome: FAO (2007, in press). Fiske, S. J. Sociocultural aspects of establishing marine protected areas. Ocean and Coastal Management 18 (1992), 25–46. Fogarty, M.J. Essential habitat, marine reserves and fishery management. Trends in Ecology and Evolution 14 (1999), 133-134. Greenpeace. Roadmap to Recovery: A global network of marine reserves. Greenpeace (2006), 56pp. http://www.greenpeace.org/raw/content/international/press/reports/ ocean-maps.pdf Accessed 31 July 2006. Halpern, B.S. The impact of marine reserves: do reserves work and does reserve size matter? Ecological Applications 13(1) Supplement (2003), S117-S137. Hanna, S. 2004. The economics of protected areas in marine fisheries management: an overview of issues. In Aquatic Protected Areas as Fisheries Management Tools: Design, Use, and Evaluation of These Fully Protected Areas. J. B. Shipley (editor). Bethesda: American Fisheries Society (2004), 1259-1265. Cited in Pomeroy et al. 2007. Helvey, M. Seeking consensus on designing marine protected areas: keeping the fishing community engaged. Coastal Management, 32 (2004), 173-190. Hermsen, J.M., J.S. Collie, P.C. Valentine. Mobile fishing gear reduces benthic megafaunal production on Georges Bank. Mar.Ecol.Prog.Ser., 260 (2003), 97-108. Hilborn, R., K. Stokes, J-J. Maguire, T. Smith, L.W. Botsford, M. Mangel, J. Orensanz, A. Parma, J. Rice, J. Bell, K.L. Cochrane, S.G. Garcia, S.J. Hall, G.P. Kirkwood, K. Sainsbury, G. Stefansson, and C. Walters. When can marine reserves improve fisheries management? Ocean.Coast. Mgmt., 47 (2004), 197 – 205. Hilborn, R., F. Micheli and G.A. De Leo. Integrating marine protected areas with catch regulation. Can.J.Fish.Aquat.Sci., 63 (2006), 642-649.

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ICSF. Fishing Communities and Sustainable Development in Eastern and Southern Africa: The Role of Small-scale Fisheries. Report of a workshop, 14-17 March 2006, Dar es Salaam, Tanzania. International Collective in Support of Fishworkers. 2006. 71pp. Jones, P.J.S. 2006. Collective action problems posed by no-take zones. Marine Policy, 30 (2006), 143-156. Kelleher, G. and R Kenchington. Guidelines for Establishing Marine Protected Areas. Gland: IUCN (1992). pp80. Lindholm, J., P. Auster and P. Valentine. Role of a large marine protected area for conserving landscape attributes of sand habitats on Georges Bank (NW Atlantic). Mar.Ecol.Prog.Ser., 269 (2004), 61-68. Maypa, A.P., G.R. Russ, A.C. Alcala and H.P. Calumpong. Long-term trends in yield and catch rates of the coral reef fishery at Apo Island, central Philippines. Mar.Freshwater Res., 53 (2002), 207213. McClanahan, T.R. & Kaunda-Auarara, B. Fishery recovery in a coral reef marine park and its effects on the adjacent fishery. Conservation Biology 10 (1996), 1187-1199 (cited in Botsford et al. 2007). McClanahan, T.R. & Mangi, S. Spillover of exploitable fishes from a marine park and its effect on the adjacent fishery. Ecological Applications 10 (2000),1792-1805 (cited in Botsford et al. 2007). Mosquera, I., I. M. Côté, S. Jennings and J. D. Reynolds. Conservation benefits of marine reserves for fish populations. Animal Conservation, 4 (2000.), 321-332. (cited in Botsford et al. 2007) Micheli, F., B.S. Halpern, L.W. Botsford and R.R. Warner. Trajectories and correlates of community change in no-take marine reserves. Ecological Applications, 14 (2004), 1709-1723. Mumby, P.J., A.J. Edwards, J.E. Arlas Gonzàles, K.C. Linedeman, P.G. Blackwell, A.Gall, M.I. Gorczynska, A.R. Harborne, C.L. Pescod, H. Renken, C.C.C. Wabnitz and G. Llewellyn. 2004. Mangroves enhance the biomass of coral reef fish communities in the Caribbean. Nature, 427 (2004), 533-536. NRC. Sustaining Marine Fisheries. Washington, D.C.: National Academy Press (1999), pp. 164. Murawski, S., P. Rago and M. Fogarty. Spillover effects from temperate marine protected areas. In J. Brooke Shipley Ed. Aquatic Protected Areas as Fisheries Management Tools. Bethseda: American Fisheries Society (2004), 301 pp. Pollnac, R. B., B. R.Crawford and M. L.G. Gorospe. Discovering factors that influence the success of community-based marine protected areas in the Visayas, Philippines. Ocean and Coastal Management 44 (2001), 683–710.

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Pomeroy, R.S., M.B. Mascia and R.B. Pollnac. Marine protected areas: the social dimension. In Report of the Workshop on the Role of MPAs in Fisheries Management, Rome, Italy, June 2006. FAO Fisheries Report. Rome: FAO (2007, in press). Roberts, C.M. and J.P. Hawkins. Fully-protected marine reserves: a guide. Washington D.C.: WWF Endangered Seas Campaign (2000) 137pp. Rodwell, L.D. and C.M. Roberts. Fishing and the impact of marine reserves in a variable environment. Can.J.Fish.Aquat.Sci. 61 (2004), 20532068. Sainsbury, K.J., R.A. Campbell, R. Lindholm and A.W. Whitelaw. Experimental management of an Australian multispecies fishery: examining the possibility of trawl-induced habitat modification. In Pikitch, E.L., D.D. Huppert and M.P. Sissenwine, Eds. Global trends: fisheries management. Bethseda: American Fisheries Society Symposium, 20 (1997), 107-112. Sanderson, H.T. and Koester, S. Co-management of tropical coastal zones: the case of Soufriere Marine Management Area, St. Lucia, WI. Coastal Management, 28 (2000), 87-97. Stefannson, G. and A.A. Rosenberg. Combining control measures for more effective management of fisheries under uncertainty: quotas, effort limitation and unprotected areas. Phil.Trans.R.Soc.B, 360 (2005), 133-146. WRI. Reefs at Risk in the Caribbean. Washington: World Resources Institute (2004), 80pp.

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A Legal Regime for the Biodiversity of the Area Fernanda Millicay 1 Abstract The United Nations Convention on the Law of the Sea was negotiated with the purpose of regulating in one single instrument all the aspects of the law of the sea. Nevertheless, when UNCLOS was negotiated, it was assumed that the lack of sunlight in the deep seabed did not allow any form of life, and the interest concentrated on mineral resources, in particular polymetallic nodules. At present, it is known that while the exploitation of minerals seems to be far in the future, the use of biological organisms of the Area could be the most viable and profitable activity in the near future. The organisms, in particular thermophiles and extremophiles, are the object of an increasing international interest due to their high potential for pharmaceutical and industrial developments. Although Part XI of the Convention and the provisions of the 1994 Agreement provide the legal regime applicable to the activities in the Area, a legal difficulty arises: the definition of “resources of the Area” provided in Article 133(a) of the Convention is limited to “mineral resources”. Accordingly, the whole system of exploration and exploitation was designed for mineral resources. This raises the question of whether use of the biological organisms of the Area are subject to the “first come first serve” rule of the high seas, and whether UNCLOS or another set of rules (e.g. the Convention on Biological Diversity) provides an applicable regime. Neither UNCLOS nor the Convention on Biological Diversity provides specific norms on the use of biological organisms of the Area. The question is what legal regime is to be applied for the conservation, research and use of such

1

In 2003, Fernanda Millicay was awarded the 18th Hamilton Shirley Amerasinghe Fellowship on the Law of the Sea to study the legal regime applicable to the biodiversity of the Area. Although she is First Secretary at the Argentine Ministry of Foreign Affairs, the views expressed in the present work are personal, and do not reflect those of the Argentine Government. The author’s PowerPoint presentation can be viewed on the accompanying CD.

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resources. In the absence of a specific legal regime, it is proposed that several principles be taken into account: 1. Neither UNCLOS nor CBD define the legal status—and, consequently, the legal regime—for biological organisms of the Area. Thus, no legal instrument has determined that the legal regime applicable to these resources is that of the high seas. 2. The manner in which the Convention is to be applied in each maritime area is not defined by CBD. By virtue of Article 22.2, the application of CBD to the components of biological diversity, including their use, and to processes and activities is to be determined in accordance with the provisions of UNCLOS relating to the rights of States in the different maritime areas. 3. Negotiators structured UNCLOS on the basis of a “zonal approach”, according to which all the uses— including the exploitation of resources—of a maritime area are subject to the legal regime of that maritime area. 4. The main reason for adopting a specific legal regime for the seabed and ocean floor beyond the limits of national jurisdiction was that the regime of the high seas did not provide substantive norms to regulate the exploration of the Area and the exploitation of its resources (Preamble of UNGA Resolution 2749 (XXV)). 5. The negotiators of UNCLOS were convinced that all the resources of the Area were subjected to the legal regime under negotiation; they did not have the intention to leave a particular use of the Area unregulated. 6. According to article 143 of UNCLOS, not only exploration for and exploitation of the resources of the Area must benefit mankind as a whole, but also marine scientific research must be carried out for the same purpose. Therefore, if marine scientific research—including MSR on biological organisms—in the Area is to be undertaken “for the benefit of mankind”, it is not be reasonable to adopt the “first-come-first-serve” rule of the high seas for the use of the same organisms. Conclusion A mere textual interpretation of Part XI, according to which some of the resources of the Area follow the status

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A Legal Regime for the Biodiversity of the Area

of the Area as common heritage of mankind while some others do not is not reasonable in the light of the criteria according to which UNCLOS was structured. The clear intention of negotiators was “to settle (…) all issues relating to the law of the sea” and to develop, through the Convention, “the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole”. The only logical conclusion resulting from the structure of UNCLOS as well as from its object and purpose and from the intention of negotiators is that all the resources of the Area follow its legal status as common heritage of mankind. A specific regime for biological resources can be negotiated following the principles governing the Area. The international community decided already in the 1960s to subtract the resources of the Area from the freedoms of the high seas. What must be decided now is whether to leave the biodiversity of the area subject to unilateral exploitation by a handful of developed States or to face the challenge of providing specific norms for the conservation and use of these resources for the benefit of mankind. TABLE OF CONTENTS 1. INTRODUCTION 1.1. The new issue 1.2. The legal question 1.3. Introductory remarks 2. THE NEGOTIATION OF THE LEGAL REGIME OF THE AREA 2.1. The negotiation of Part XI of the Convention 2.2. The 1994 Agreement and the quest for universality 3. THE RESOURCES OF THE AREA 3.1. Mineral resources 3.1.i. Polymetallic nodules

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3.1.ii. Cobalt-rich crusts 3.1.iii. Polymetallic sulphides 3.2. Deep seabed biological communities 3.2.i. The uses and impacts 4. THE PROVISIONS OF PART XI OF UNCLOS AND OF THE CONVENTION ON BIOLOGICAL DIVERSITY 4.1. The provisions of UNCLOS 4.2. The provisions of the Convention on Biological Diversity (CBD) 4.3. Recent developments – CBD and UNCLOS 4.3.i. CBD 4.3.ii. UNCLOS 4.3.ii. a) The International Seabed Authority 4.3.ii. b) The General Assembly of the United Nations 5. THE ISSUE OF INTELLECTUAL PROPERTY RIGHTS 6. THE FORMULATION OF A REGIME APPLICABLE TO THE SUSTAINABLE USE AND CONSERVATION OF THE BIODIVERSITY OF THE AREA 6.1. Introduction 6.2. The high seas, the continental shelf and the zonal approach of UNCLOS 6.3. The legal principle of the common heritage of mankind and the Area. Its scope. 6.4. Elements for a future regime 6.4.i. Definitions: “resources of the Area” and “biological organisms of the Area” 6.4.ii. A comprehensive set of rules for marine scientific research and sustainable use of the biological organisms of the Area 6.4.iii. The conservation of the biodiversity of the Area 6.4.iv. A competent international institution 6.4.v. Intellectual property rights 6.5. The form of the international instrument embodying a new regime and the most viable way to negotiate it 7. CONCLUSION

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The strong would be stronger, the rich richer. (…). This is a virtually inevitable consequence of the present situation. Arvid Pardo. Statement before the 1515th meeting of the First Committee of the United Nations General Assembly. 1 November 1967.

1. INTRODUCTION The United Nations Convention on the Law of the Sea1 marked a revolution not only in international law but also in the history of international relations2. It has been said that “[i]n the history of multilateral diplomacy there has been nothing to equal the 1982 Convention in scope, sophistication and universality”3. The Convention is unique in its ambition and in some innovative concepts it introduced. One such concept is that the Area and its resources are the common heritage of mankind. Nevertheless, when the Convention was negotiated between 1973 and 1982, knowledge about the resources of the seabed beyond the limits of national jurisdiction was limited to the mineral resources. When Malta requested the introduction of the issue in the 22nd Session of the General Assembly of the United Nations in 1967, the only resources the international community was aware of were polymetallic nodules. Therefore, the Third United Nations Conference on the Law of the Sea concentrated its work on those resources. In 1977, hydrothermal vents were discovered, but the negotiations at the Conference were so advanced that although the provisions of Part XI of the Convention were designed to apply to all mineral resources, the only reference they make to a specific category of minerals is to polymetallic nodules. Before the General Assembly of the United Nations adopted its Resolutions on the status of the Area, the seabed and ocean floor beyond the limits of national jurisdiction, being the bottom of the high seas, was

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considered to be part of that maritime space. Thus, the exploitation of its resources was subject to the freedom of the high seas, on a “first come first serve” basis. On 1 November 1967, Ambassador Arvid Pardo of Malta pronounced a historic speech before the First Committee of the General Assembly. His speech very clearly shows that at that time, an important part of the international community feared that, due to the lack of a specific legal regime applicable to that area, the seabed and ocean floor beyond the limits of national jurisdiction would become the scenario of the armament’s race. It was also feared that the seabed and ocean floor would be progressively appropriated by States and that the freedom of the high seas would only benefit the few developed States with the necessary technology to carry on mining activities in depths of more than 3,000 meters4. The General Assembly and the negotiators of UNCLOS decided to subtract the seabed and ocean floor beyond the limits of national jurisdiction (“the Area”) from both national appropriation and the freedom of the high seas. A new legal regime was created when the Area and its resources were declared the “common heritage of mankind”. That major principle provided the basis for the overall regime established in Part XI of UNCLOS and in the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 19825. The Convention also created an unprecedented international machinery (the International Seabed Authority) as the trustee of mankind. The 1994 Agreement6 introduced the necessary amendments that made Part XI and the whole Convention universally acceptable. After its establishment in 1996, the International Seabed Authority devoted itself to the development of rules and regulations for prospecting

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A Legal Regime for the Biodiversity of the Area

and exploration of polymetallic nodules. Priority in the work related to this category of resources is provided for in the Convention7. The Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (the “Mining Code”), were adopted in July 2000, during the resumed Sixth Session of the Authority. Consequently, between 2001 and 2002, the Authority entered into the 15-year contracts with the seven pioneer investors registered under resolution II of the Third Conference8. After the adoption of the Mining Code, and -upon the request made by the Russian Federation in 1998- the ISA devoted itself to the consideration of the rules and regulations applicable to activities related to other categories of resources of the area, i.e. hydrothermal polymetallic sulphides and cobalt-rich ferromanganese crusts9 taking into account the considerations of the Legal and Technical Commission (LTC), a subsidiary organ of the Council. The LTC also adopted a set of environmental guidelines10 for contractors.

1.1. The new issue When UNCLOS was negotiated, the international community had the expectation that minerals of the Area could contribute to the wealth of the world and change the global minerals market. Now it is known, in what was called “the deepest of ironies”11 that while the exploitation of minerals seems to be far in the future12, the exploitation of biological organisms seems to be the most profitable activity in the Area in the near future. For decades, including during the negotiation of UNCLOS, the international scientific community was unaware of the existence of living resources in the Area. On the contrary, it was assumed that the lack of sunlight in the deep seabed would not allow any form of life as photosynthesis was not possible.

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Deep-sea

hydrothermal

vents

were

discovered

in

1977.

Hydrothermal vents are found in the mid-ocean ridges and also at convergent plate boundaries where the outer layer subdues under the abutting continental landmass forming submarine trenches. The vents are formed through a process that starts with the inflow of sea water into fractures of the sea-bottom. That cold water reaches the underlying layers of magma, and then—again through fractures of the seabottom—comes back to the seabed as boiling water enriched by the minerals from the rock, which precipitate when in contact with cold water, forming “chimneys” or vents. The result of this process is the production of chemical energy from the inner layers of the earth (or the core of the earth) that is used by certain biological organisms. Instead of photosynthesis, hydrothermal vent ecosystems live of chemosynthesis, a process that uses energy from chemical oxidations to produce organic matter from CO2 and mineral nutrients. Thanks to this process, vents have high concentrations of biomass. The biological communities that inhabit the vents, in particular the chemosynthetic organisms, are at the base of the food chain of a diverse and rich ecosystem. Consumers within the vent community which depend exclusively on these primary producers are endosymbiotic tubeworms, vesicomyd clams, shrimps and mussels. At present, around five hundred species have been discovered. The major part of those species is highly endemic, and therefore cannot be found anywhere else. Therefore, the biological communities vary between vent sites and regions. Some species are common to more than one site while some have—so far—only been found on one site.

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The micro-fauna and bacteria of the deep seabed are called “extremophiles” or “hyperthermophiles”, as they live in conditions of darkness, extremely high temperatures and pressure, which has made them resistant to heat and pressure. Therefore, there is increasing interest from the scientific community, biotechnology and pharmaceutical companies for searching species which produce beneficial substances and genes which could potentially be used for pharmaceutical or industrial processes13. The living resources that inhabit the Area are inextricably linked to the seabed. They could be seen as to represent to the Area what the sedentary species are to the continental shelf. At present, only a small number of States have the necessary technology to have access to and to exploit the biodiversity of the Area14. The exploration related to biological communities in the Area gives rise to the following issues: a)

the proper preservation of such communities from the

impacts of activities in the Area; b)

the rules applicable to marine scientific research; and

c)

the rules applicable to the exploration and exploitation of

such resources.

As regards conservation, it is within the mandate of the Authority to take measures to protect the biological communities associated with hydrothermal vents as well as with other types of minerals from harmful effects which arise from the activities in the Area. Such competence derives from Article 145 of UNCLOS, according to which the Authority shall adopt appropriate rules, regulations and procedures for, inter alia, the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment15. It is in

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accordance with such competence that the Legal and Technical Commission adopted the Recommendations for the guidance of the contractors for the assessment of the possible environmental impacts arising from exploration for polymetallic nodules in the Area16.

1.2. The legal question Part XI of the Convention and the provisions of the 1994 Agreement provide a comprehensive regime for the activities in the Area, as defined Article 1(1)(3). Nevertheless, the Convention presents two legal difficulties. The first one is that the definition of “resources of the Area” provided in Article 133(a) of the Convention is limited to “mineral resources”. Additionally, the whole system of exploration and exploitation was designed for mineral resources. These two difficulties raise a number of questions: - is the exploitation of the biological communities of the Area, due to the lack of specific provisions of Part XI, subject to the “first come first serve” rule of the high seas?; - does it lie completely outside the provisions of UNCLOS and should therefore be subject to a different set of rules (i.e. Convention on Biological Diversity)?; or - are there principles of UNCLOS that can be applicable to the biodiversity in the Area and therefore the question of this apparent lacuna should be solved within the framework of UNCLOS? The International Seabed Authority (ISA) was entrusted with the necessary competence for administering the resources that are the common heritage of mankind. Some are of the opinion that its competence is limited to the express terms of the Convention, that is to say to mineral resources. On the other hand, some have suggested that the mandate of ISA should be expanded so as to cover the biodiversity in the Area.

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It is the aim of this work to contribute to the analysis of the legal rules (mainly UNCLOS and CBD) and principles applicable to the Area and its resources and to help formulate a course of action that the international community could follow in order to establish a legal regime for the sustainable use and conservation of the biodiversity of the Area.

1.3. Preliminary remarks Some clarifications are needed as to how the issue was analyzed. The intention of the present work is to try to identify the basic principles applicable to the biodiversity of the Area. Although many references have been made by several authors and studies to the biodiversity “of the high seas” as encompassing both the water column and the seabed and ocean floor, this work shall not deal with the regime applicable to the water column (high seas). Therefore, besides some references to an ecosystemic approach that could be necessary, the question of the use of biological organisms is limited to the particular scope of this work, which is the biological organisms of the Area—as defined by UNCLOS—taking into account the clear distinction of legal regimes that UNCLOS provides for the high seas and for the Area. When describing the regime established by the Convention and the 1994 Agreement17 this work avoids references to the amendments introduced to Part XI by the latter, as they specifically refer to the regime of exploration and exploitation of mineral resources in the Area. In the same vein, as the present work concentrates on the biological communities of the Area, it includes only a brief description of the mineral resources, in order to reflect the vast richness of the Area and because they constitute the habitat of many of the communities that are the object of this study. It will also put the emphasis in the ecosystems of hydrothermal vents,

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as these biological communities, due to their ability to adapt to extreme environments and their consequent potential for biotechnology, have prominently caught the attention of the scientific community and industry. Nevertheless, the conclusions of the present work are applicable to all biological communities of the Area, which includes the biological communities of seamounts, hydrothermal vents, cold seeps and pockmarks, abyssal plains, trenches and other features of the seabed and ocean floor beyond the limits of national jurisdiction. Biological organisms of the deep seabed cannot, due to their characteristics, be only defined as the ones “attached” (or similar) to the deep seabed. Such a definition could result to be too simplistic taking into account the characteristics of these organisms, and one of the tasks the international community would have to consider is what organisms the expression “of the Area” includes. In this work, such expression is used so as to encompass all the different relations between biological communities and the seabed. Finally, the term “biodiversity” is used as an equivalent of “biological diversity”. That term as well as “biological resources”, “genetic resources” and “sustainable use” have in this study the meaning given to them by the Convention on Biological Diversity18.

2. THE NEGOTIATION OF THE LEGAL REGIME OF THE AREA

2.1. The negotiation of Part XI of the Convention In the 1960s, it was believed that there were millions of tons of manganese nodules in the bottom of the sea, and that they could provide supplies of many industrially relevant metals to last for thousands of years at those days’ rates of consumption19.

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A Legal Regime for the Biodiversity of the Area

As a predecessor of the evolution of the issue at the General Assembly of the United Nations, on 7 March 1966, the Economic and Social Council (ECOSOC) adopted its Resolution 1112 (XL), which requested the Secretary General make a survey of the state of knowledge of the resources—excluding fish—of the sea beyond the continental shelf. On 13 July 1966, President Lyndon B. Johnson of the United States had stated that: Under no circumstances, we believe, must we ever allow the prospect of rich harvest and mineral wealth to create a new form of colonial competition among the maritime nations. We must be careful to avoid a race to grab and to hold the lands under the high seas. We must ensure that the deep sea and the ocean bottoms are, and remain, the legacy of all human beings. 20 Although the idea of “common heritage of mankind” had already appeared in the works of Andrés Bello, who had stated that certain common goods were “indivisible patrimony of mankind”21 and of Lapradelle, who had referred to the legal status of the high seas as “patrimony of mankind”22, the International Law Commission considered, in 1956, that the internationalization

of

the

“submarine

areas”

would

“meet

with

insurmountable practicable difficulties and would not ensure the effective exploitation of natural resources necessary to meet the needs of mankind”23. On 17 August 1967, the Permanent Mission of Malta to the United Nations submitted a memorandum which expressed that time had come to declare the sea-bed and ocean floor the “common heritage of mankind” and to start the process of drafting a treaty embodying a number of principles. The Maltese Memorandum also envisaged the creation of an international agency to act as the trustee of all countries24. The item was included in the Agenda of the following Session of the General Assembly. Due to its security implications—which were very

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clearly expressed in the Memorandum—the item was allocated to the First Committee. At the 1515th and 1516th meetings of the First Committee, in November 1967, the representative of Malta explained its view of the issue. Ambassador Arvid Pardo referred to the notorious advances in technology, which made it foreseeable that the seabed and ocean floor beyond the limits of national jurisdiction25 became progressively

and competitively

appropriated, as well as exploited and used for military purposes by those who possessed the required technology He referred to the presence of manganese nodules in the seabottom, mainly in the Pacific and Indian Oceans and to the impact that production of those minerals from the sea-bottom could have in the national economies of mineral producing countries. He foresaw that technology would allow the exploitation of the minerals of the seabed in the following decade. He called the attention to the fact that international law in force at the time supported the appropriation of the seabed and its resources by those who had the technology to exploit them. The intention was to prevent a race for the seabed which would lead to the exploitation of such vast wealth for the exclusive benefit of less than a handful of nations. As a consequence of those considerations, Malta proposed that an agency assumed jurisdiction as the trustee of all countries, and that the following principles were incorporated into a treaty that would rule the status and use of the seabed and ocean floor beyond national jurisdiction: a) the seabed and ocean floor, underlying the seas beyond the limits of national jurisdiction are not subject to national appropriation; b) the seabed and ocean floor beyond the limits of national jurisdiction shall be reserved exclusively for peaceful purposes; c) scientific research shall be freely permissible and its results available to all;

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d) the resources of the seabed and ocean floor beyond the limits of national jurisdiction shall be exploited primarily in the interests of mankind, with particular regard to the needs of poor countries; and e) the exploration and the exploitation of the seabed and ocean floor shall be conducted in a manner consistent with the principles and purposes of the Charter of the United Nations. In the discussions at the First Committee, delegations expressed general support for establishing a body to consider the overall implications of the issue, including the adoption of an international regime and the creation of the appropriate machinery. A draft resolution was co-sponsored by 43 Members and the establishment of an Ad Hoc Committee of 35 States26 was approved by the First Committee 93 to 0 with 1 abstention. Resolution 2340 (XXII) Examination of the question of the reservation exclusively for peaceful purposes of the sea-bed and the ocean floor, and the subsoil thereof, underlying the high seas beyond the limits or present national jurisdiction, and the use of their resources in the interests of mankind was adopted unanimously by the General Assembly on 18 December 1967. The mandate of the Ad Hoc Committee was to prepare for consideration of the General Assembly a study which should include a survey of the activities of United Nations agencies and other intergovernmental bodies regarding the seabed and ocean floor as well as the existing international agreements concerning that area, an account of scientific, technical and legal aspects of the issue, and an indication of the practical means to promote international co-operation in the exploration, conservation and use of the seabed and ocean floor and of the resources thereof. The Ad Hoc Committee held 3 sessions in 196827 during which it was unable to reach agreement on what recommendations to make to the General Assembly. It informed the General Assembly that the issue of the

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elaboration of a set of principles on the status of the seabed and ocean floor beyond the limits of national jurisdiction required further consideration and study and that at that time it was seen as premature28. On 21 November 1968, the General Assembly, by Resolution 2467 A (XXIII), decided to create a permanent committee, the “Committee on the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction” (the “Seabed Committee”). The Seabed Committee had a membership of 42 States. It held three sessions during 1969. On 15 December 1969, the General Assembly adopted a Resolution on the basis of a draft presented by the Committee which requested the Secretary General to consult with Members on the convenience of convening a new Conference on the law of the sea29. The General Assembly also adopted a “moratorium” on all activities of exploitation of the resources of the area of the seabed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction30. The resolution had been prompted by the fear that States with the requisite technology and finance would carry out operations for the exploitation of the mineral resources of the sea-bed and the ocean floor beyond national jurisdiction before a legal regime was internationally agreed upon. The Moratorium Resolution was adopted by two thirds of the countries voting (62 votes in favor, 28 against, and 28 abstentions). It must be noted that many of the countries which possessed the necessary technology to carry out activities in the Area voted against the Resolution31. In its Report presented to the General Assembly in 1969, the Seabed Committee expressed that agreement seemed to have emerged “on the need for the establishment of a regime as well as on the use of the resources for the benefit of mankind irrespective of the geographical location of States and taking into account the special interests and the needs

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of the developing countries”32. It also stated that whether the regime should apply to the area or only to the resources was a matter still to be settled, and that no agreement had yet been reached on the main features of such regime33. During its 1970 sessions, the Seabed Committee—mainly through its Legal-Subcommittee—devoted its efforts to the formulation of a declaration of principles applicable to the Area. On 17 December 1970, the General Assembly noted that the “the existing legal regime of the high seas does not provide substantive rules for regulating the exploration of the (…) area and the exploitation of its resources”34, and adopted the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction (Resolution 2749 (XXV)). The overwhelming consensus by which this resolution was adopted, strengthened the status of the previous “Moratorium Resolution”. The principles that the General Assembly “solemnly declared” were: - The seabed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (the Area), as well as the resources thereof, are the common heritage of mankind; - The area shall not be subject to appropriation by any means by States or persons, and no State shall claim or exercise sovereignty or sovereign rights over any part thereof; - No State or person shall claim, exercise or acquire rights with respect to the area or its resources incompatible with the international regime to be established and the principles of the Declaration; - All activities regarding the exploration and exploitation of the resources of the area and other related activities shall be governed by the international regime to be established; - The area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination, in accordance with the international regime to be established;

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- States shall act in the area in accordance with the applicable principles and rules of international law, including the Charter of the United Nations and the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States35; - The exploration of the area and the exploitation of its resources shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether landlocked or coastal, and taking into particular consideration the interests and needs of the developing countries; and - States shall promote international co-operation in scientific research exclusively for peaceful purposes.

In Resolution 2749 (XXV), which was adopted by the notorious consensus of 108 votes in favor, none against and 14 abstentions, the General Assembly established the pillars for the future negotiations on the regime applicable to the seabed and ocean floor beyond the limits of national jurisdiction. The principles of the Declaration would, thus, form the basis of an international regime including the appropriate international machinery, which would be established by means of an international treaty of a universal character. Such regime would provide for the orderly and safe development and rational management of the area and its resources, and ensure the equitable sharing by States of the benefits derived therefrom, taking into particular consideration the interests and needs of the developing countries. It must be noted that Resolution 52 adopted by the Third United Nations Conference on Trade and Development (UNCTAD) which met in Santiago, Chile, in 1972, gave additional support to the Declaration of Principles embodied in Resolution 2749 (XXV).

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At its 25th session, the General Assembly also adopted Resolution 2660 (XXV), which enshrined the Treaty on the prohibition of the emplacement of nuclear weapons and other weapons of mass destruction on the Sea-bed and the ocean floor and the subsoil thereof, and Resolution 2750 B (XXV), which, in relation to the inquiries made by the Secretary General in accordance with Resolution 2574 A (XXIV), indicated wide support for the idea of convening a law of the sea conference. Following the opinion of Member States, by Resolution 2750 C (XXV), the General Assembly decided to convene in 1973 a Conference on the Law of the Sea which would consider not only the question of the regime for the area but also “a broad range of related issues”36, including issues relating to the traditional law of the sea and some new issues (the regimes of the high seas, the continental shelf, the territorial sea—including the question of its breadth, an issue not solved by the previous two law of the sea Conferences37—the contiguous zone, fishing and conservation of resources of the high seas, including the preferential rights of the coastal States, the preservation of the marine environment and scientific research). Membership of the Seabed Committee was enlarged to 44 Members38 and its mandate, according to Resolution 2467 (XXIII), was not only reaffirmed but also broadened to include the preparations “for the conference on the law of the sea draft treaty articles embodying the international regime—including an international machinery—for the area (…)”. Therefore, the Seabed Committee became the preparatory body of the Conference. The Committee held seven sessions between 1971 and 197339. It worked on the basis of three sub-Committees. The first sub-committee was in charge of writing draft articles on the international regime for the area and on the structure of the international machinery. The second Sub-

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Committee was devoted to the more traditional law of the sea issues, and the Third Sub-Committee was in charge of drafting articles on the preservation of the marine environment and the prevention of pollution, on marine scientific research and on development and the transfer of technology. During its 1972 summer session, the Seabed Committee formally adopted a list of subjects and issues to be dealt with by the Third Conference40. In this regard, it must be noted that the First United Nations Conference on the Law of the Sea (1958) had counted on the preparatory work done by the International Law Commission, which also included draft texts. The Seabed Committee that met for five years acted as the preparatory body of the Third Conference. Although the preparatory work done during those five years had been admirable, the reality is that the Third Conference started its deliberations without a draft convention41. The convening of a new Conference on the Law of the Sea to deal with a number of issues other than the regime for the seabed and ocean floor beyond the limits of national jurisdiction was due to several reasons. First, although the First Conference42 had agreed on the regime applicable to the Continental Shelf, it had not reached agreement on one major issue, as was the breadth of the territorial sea. The Second Conference (1960) had not been able to agree on the unresolved issues. During the 1960s, many new States acquired independence through the process of decolonization. Those States had not participated in the previous two Conferences. Also, some issues of a global magnitude had to be considered, such as the regime for international straits and the protection and preservation of the marine environment, a concern resulting from the Stockholm Declaration of the United Nations Conference on the Human Environment (1972). Finally, the speech pronounced by Arvid Pardo at the First Committee of the 22nd

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General Assembly provided the final impetus needed to embark on a negotiation of a comprehensive law of the sea treaty. While 90 delegations had been invited to the First Conference, 149 governments were invited to participate in the Third Conference43. The first task of the Conference was to agree on its rules of procedure. At the First Session of the Conference, the question of voting proved to be a difficult one. The resolution of the General Assembly convening the Conference included a “Gentlemen’s agreement” according to which the Conference should proceed on the basis of consensus as far as possible. The underlying purpose was to adopt a widely acceptable convention on the law of the sea within a reasonable period. The adoption of the rules of procedure was an issue that could not be solved in the first part of the First Session of the Conference. The rules of procedure44 were adopted at the 20th meeting, which took place on 27 June 1974, in Caracas. Such rules reaffirmed the “Gentlemen’s agreement”. Ambassador Hamilton Shirley Amerasinghe of Sri Lanka, former chairman of the Seabed Committee, was elected President of the Conference. As to the organization of work, the Conference functioned on the basis of a Plenary and three Main Committees45. Such an organization very much reflected the organization of work under which the Seabed Committee had functioned. The question of the international regime for the sea-bed and ocean floor beyond the limits of national jurisdiction was allocated to the First Committee of the Conference. The Conference had to consider the work of the Seabed Committee, which included draft texts. In relation to the question of the Area, numerous States had made proposals. It also had to consider several Reports prepared by the Secretary General, the four 1958 Geneva Conventions, relevant

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decisions of the International Court of Justice and the Declaration of Principles embodied in Resolution 2749 (XXV)46. A historical development which took place and served as a framework to the negotiations on the law of the sea in general and on the legal regime applicable to the Area in particular was the prevalence of the ideas on a New International Economic Order (NIEO)47. The law of the sea, taking into consideration Ambassador Pardo’s proposal, could, in this way, be the first opportunity to incorporate the principles of the NIEO into positive international law. It should also be taken into consideration that the Declaration of the United Nations Conference on the Human Environment (“Stockholm Declaration”-1972) influenced the awareness of the need to include norms on the protection and preservation of the marine environment. The Declaration recognized and articulated new global values emerging from growing environmental awareness. UNCLOS was to be the first instrument on the law of the sea to incorporate the protection and preservation of the marine environment as an essential part of the overall regime48. The second substantive session of the Conference was the 1975 Geneva session. As it had been agreed there would be no general debate, a few formal meetings were held and the session developed on the basis of informal meetings49. At the end of the session, a Single Negotiating Text50(SNT), was prepared on the basis of single negotiating texts prepared by the Chairman of each Main Committee. The SNT did not present agreed texts, but represented the appreciation of the Chairmen of the three Main Committees of the general tendency of the negotiations so far51. The SNT was informal in character, and was circulated in order to provide a basis for negotiation. This SNT was subject to consideration by the delegations at the New York 1976 session, after which a Revised Single Negotiating Text52

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(RSNT) was issued. The results of the work undertaken at the First Committee were contained in Part I of the RSNT. After three sessions of negotiations, at the 1977 session, the Conference decided that the Chairman of the Conference and the chairmen of the three Main Committees53 would prepare an Informal Composite Negotiating Text54 (ICNT) which brought together in one document all the draft articles contained in Parts I, II, III and IV of the RSNT. The ICNT was, as the RSNT, informal in character and was prepared to provide a basis for negotiation55. Nevertheless, the consolidation that the ICNT offered meant an important progress towards the elaboration of a comprehensive international regime for the law of the sea56. The 1978 session was influenced by a series of events which took place prior to its commencement. The President of the Conference, Ambassador Amerasinghe of Sri Lanka was not accredited to the seventh session by the Sri Lankan new administration. Apart from that, and in addition to the negative reaction that the United States and other developed countries had shown in relation to Part XI of the ICNT, the House of Representatives of the United States passed a bill “to promote the orderly development of hard mineral resources in the deep seabed, pending adoption of an international regime relating thereto”57. As regards Ambassador Amerasinghe’s functions, the Conference adopted a Resolution confirming him as President58. The issue of the enactment of unilateral legislation was proved to be more difficult to solve. The Chairman of the Group of 77 stated that unilateral measures would prejudice negotiations and would have a negative impact thereon. This question was to be raised on other occasions during the following sessions. During 1978, the negotiations took place in seven negotiating groups with the aim of solving the hard-core issues pending, among which

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there were the system of exploration and exploitation of the area, the resource policy – including production limitations, financial arrangements and organs of the Seabed Authority, their composition, powers and functions59. The resumed 8th session, in 1979, concentrated on the Area. By the end of the 8th session, a first revision of the ICNT was issued. During the first part of the ninth session a second revision of the ICNT was circulated. That text was revised during the resumed session, resulting in an “informal text” of a Draft Convention on the Law of the Sea. A note to draft article 309 expressed that “This article is based on the assumption that the Convention is adopted by consensus”60. During the resumed session, delegates concentrated mainly on voting procedures at the Council of the Seabed Authority. 1981 was a special year for the negotiations, again, due to events that influenced the development of the Conference. In December 1980, Ambassador Amerasinghe, who had presided over the Conference since its commencement, died. Ambassador Tommy B. Koh from Sri Lanka was elected President of the Conference at the proposal of the Asian Group. In January 1981, the newly elected administration of the United States took office. Two months later, the United States instructed its delegation at the Conference “to seek to ensure that the negotiations do not end (…) pending a policy review by the United States Government”61. The need for revision by the United States focused on Part XI. Finally, in 1981 and “official” Draft Convention62 was issued. On 30 April 1982, the Convention was adopted by voting (130 votes in favor, 4 against and 18 abstentions). The Convention, open for signature in Montego Bay, Jamaica, was immediately signed by 119 States. Until the period for signature expired (on 9 December 1984) 155 States and 4 entities63 had signed it. Several

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developed countries, including the United States, Italy, the United Kingdom and Germany did not sign the Convention due to dissatisfaction with the regime for the Area contained in Part XI. The Preparatory Commission (PrepCom) was established, in accordance with Resolution I of the Third Conference, to start working before the entry into force of the Convention. The PrepCom functioned from 1983 in Jamaica. The aim was to take all necessary measures to ensure the entry into effective operation of the Authority and the International Tribunal for the Law of the Sea64. This mandate meant that PrepCom would meet to continue to try to find a consensus about Part XI. The PrepCom had an additional mandate, given by Resolution II, related to what was called “pioneer activities”. Resolution II provided that those countries and mining consortia that had before the entry into force of UNCLOS made significant investments in the surveillance of polymetallic nodules would be treated as “pioneer investors” with exclusive rights for carrying out exploration activities in areas allocated to them. Seven pioneer investors registered under the rules adopted by the Conference were given that status65.

2.2. The 1994 Agreement and the quest for universality It was not until 1989 that the problems that Part XI posed to several developed countries were generally admitted66. In July 1990, the Secretary General of the United Nations Javier Pérez de Cuéllar started informal consultations in order to solve the issues which had raised the objection of industrialized countries and prevented the universal acceptance of the Convention. One of the issues noted by the Secretary General was that since the adoption of the Convention, important political and economic changes had taken place at a global level, including the prevalence of a clearly oriented

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market economy. Such changes affected the perception of the development of deep-seabed mining under the Convention. The informal consultations, which were continued by the next Secretary General, Boutros Boutros-Ghali, took place from 1990 to 1994. The consultations identified nine issues of difficulty: the costs to States parties; the Enterprise; decision-making; the Review Conference; the transfer of technology; production limitation; the compensation fund; the financial terms of contracts; and environmental considerations. During 1990 and 1991, there seemed to be general agreement on costs to States parties, the Enterprise, decision-making, the Review Conference and the transfer of technology. As regards production limitation, the compensation fund and the financial terms of contracts, it was agreed to set forth general principles which would be of application when commercial production was imminent. During the consultations held in 1993, there was a feeling of urgency as it was foreseeable that the Convention would receive enough ratifications to enter into force before the end of 199467. On April 1993, the Secretary General prepared an information note that described different procedural approaches to reflect the agreement that could result from the consultations68. The general view during the consultations was that an instrument of a binding nature should be sought but that at the same time the unity of the regime should be preserved. In 1993, a number of States worked on the socalled “boat paper”69 which would facilitate the exchange of opinions. Then, in February 1994, it was officially given the title of “Draft Resolution and Draft Agreement Relating to the Implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea”.

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On 16 November 1993, the Convention on the Law of the Sea received its sixtieth instrument of ratification or accession According to Article 308, it was to enter into force on 16 November 1994. This posed a sense of urgency to the negotiations, but very difficult questions were still pending of resolution. The most difficult issues of the negotiations to make the Convention universally acceptable proved to be decision-making in the Council of the Authority and the Enterprise. The 1994 Agreement is an “implementation agreement” but nevertheless introduces some amendments to Part XI of the Convention. The most important aspects of Part XI that were amended refer to decisionmaking at the Council, the limitation of production, the transfer of technology, financial issues, the Enterprise, the distribution of revenues and the Review Conference. At a resumed forty-eighth session, the General Assembly adopted, through Resolution 48/263, the Implementation Agreement, with the aim of facilitating universal participation in UNCLOS. The Agreement entered into force on 28 July 1996.

3. THE RESOURCES OF THE AREA 3.1. Mineral resources70 3.1.i. Polymetallic nodules Polymetallic nodules are rock concretions formed of concentric layers of iron and manganese hydroxides around a core. The core can be microscopically small. The thickness and regularity of layers depends on the successive stages of growth. As regards their size, most nodules are between 5 and 10 cm diameter. Polymetallic nodules lie on the sea-bottom sediment, usually half buried. The abundance of nodules varies, covering 70% of the sea-bottom in

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some areas. The highest concentration of polymetallic nodules have been found in depths between 4,000 and 6,000 m. Although the chemical composition of nodules vary, those of economic value are formed by the following (nickel, copper and cobalt being the most valuable): Manganese ……..29% Iron …………..… 6% Silicon ………..... 5% Aluminum ……... 3% Nickel ………….. 1.4% Copper …………. 1.3% Oxygen ………….1.5% Hydrogen ……..... 1.5% Sodium ……….... 1.5% Calcium ………... 1.5% Magnesium …….. 0.5% Potassium ……..…0.5% Titanium ………....0.2% Barium …….….….0.2% As regards the formation of polymetallic nodules, several theories have been proposed, but the two more popular are the one that sustains that a hydrogenous process is involved, being the nodules formed by the slow precipitation of the metallic components from seawater; and the one that proposes the existence of a diagenetic process in which the manganese is remobilized in the sediment column and precipitates at the sediment/water interface. Nodules grow approximately one centimeter over several million years. Their formation, therefore, is one of the slowest geological phenomena. According to this, the nodules of the Pacific Ocean are 2 to 3 million years old. The presence of polymetallic nodules has been detected in all oceans and also in lakes. Nevertheless, three areas have been identified as

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areas of high concentration of nodules and of high economic interest. They are: the centre of the north central Pacific Ocean—in the area of the Clarion-Clipperton fracture zones—the Peru Basin in the south-east Pacific Ocean, and the centre of the north Indian Ocean. The depth of the seabed in all three areas is 4,000 to 5,000 meters. Estimations of the total amount of polymetallic nodules show that 500 billion metric tons of these nodules could be lying in the sea floor (Archer, 1981). At present, and in accordance with the contracts for exploration signed with the ISA following the adoption of the Mining Code, six areas of the North Pacific Ocean and one area in the Indian Ocean have been assigned to contractors71. In both places areas have also been reserved for the ISA.

3.1.ii. Cobalt-rich crusts All

the

oceans

present

oxidized

deposits

of

cobalt-rich

ferromanganese crusts. They can be found on the flanks and summits of seamounts, ridges and plateaus, where seafloor currents have swept the ocean floor clear of sediment for millions of years. Unlike polymetallic nodules, which are found at higher depths, cobalt-rich crusts can be found at depths of 400-4,000 metres, although the crusts that are richer in cobalt—the thickest ones—occur at depths of 8002,500 metres. Crusts are an important potential source of cobalt—their most economically important component—but also of other minerals, such as titanium, cerium, nickel, platinum, manganese, phosphorus, thallium, tellurium, zirconium, tungsten, bismuth and molybdenum. It is estimated that the Pacific Ocean presents around 50,000 seamounts, while the Atlantic and the Indian Ocean present fewer seamounts. The Pacific Ocean is where the riches deposits are found. Also,

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based on several conditions, the central equatorial Pacific region is the one which offers the best potential for crust mining, including also areas under the jurisdiction of several coastal States72. The first systematic research on cobalt-rich crusts took place in 1981 in the Central Pacific Ocean. The most detailed studies refer to areas under national jurisdiction. More research is needed in order to undertake activities in relation to these minerals, such as mapping of deposits and topographic and seismic work. The fact that seamounts are the habitat of biological organisms is another reason why seamounts require further study. After the adoption of the Mining Code for polymetallic nodules, in 2001, the ISA devoted itself to the consideration of the rules and regulations applicable to activities related to other categories of resources of the area, which include the hydrothermal polymetallic sulphides and cobalt-rich ferromanganese crusts73. The adoption of such rules had been requested by the Russian Federation in 1998. The Council of the Authority is at present considering the future regulations applicable to these minerals74.

3.1.iii. Polymetallic sulphides The generation of metallic mineral deposits in the seabed is directly linked to tectonic activity. Chimney-like formations of dark rock on atop sulphide mounds, expelling hot water and surrounded by a previously unknown biodiversity were discovered in 1979 on the East Pacific Rise. In tectonically active areas, cold water penetrates into the seafloor through fractures in the crust. In some cases, those fractures are several kilometres deep75. The water heated by magma in the earth’s crust and enriched with metal ions and other chemical substances (with temperatures of up to 400 degrees Celsius), resurfaces through the seafloor forming the hydrothermal vents. The plumes of mineral-laden water, known as

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“smokers”, precipitate when they come in contact with the cold water surrounding the seafloor, and form large “chimneys”. The fluids expelled from the vents can reach around 350 degrees Celsius. They contain high levels of hydrogen sulphide, metals, carbon dioxide and methane76. Sulphides accumulate on the seafloor and just below it, where they form massive deposits. These deposits of sulphides can range from thousands to about one hundred million tones. They present high concentrations of copper, zinc and lead, and of precious metals such as gold and silver, although the proportion of these metals vary according to the different volcanic and tectonic settings. Hydrothermal vents are the best known of seeps77. The hydrothermal vents of this site are associated with the tectonically active deep seabed at a depth of approx. 2,500 meters78. Later on, more vent sites were discovered in the northeast Pacific, the western Pacific, in the Indian Ocean along the Mid-Atlantic Ridge79. Hydrothermal vents can be found on active spreading ridges, on seamounts, in subduction areas, and in fracture areas. Hydrothermal vent sites can be found on national continental shelves—i.e. under national jurisdiction—but they are mainly a phenomenon found in areas beyond national jurisdiction. To date, more than 100 vent sites have been identified in the world80. It is estimated that hundreds of hydrothermal vent sites exist along the Mid-oceanic Ridge81. The “chimneys” can regenerate in weeks to years, but it takes tens of thousands of years to form a deposit with a concentration of commercially interesting metals82. The deposits, therefore, are not renewable. As regards their distribution, most polymetallic sulphide deposits are located in the mid-ocean at the East Pacific Rise, the Southeast Pacific Rise and the Northeast Pacific Rise. Some deposits have been located at the Mid-Atlantic Ridge, and only one in the Indian Ocean. Polymetallic

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sulphide deposits could be attractive to the mining industry, in particular deposits with high grades of base-metal and/or gold. As mentioned in the introduction, these deposits also attract the interest of scientists and the biotechnology industry regarding the biological communities associated to them, which constitute the object of the present work.

3.2. Deep seabed biological communities When the negotiations of the regime for the Area began, it was assumed that the bottom of the sea under the high seas was rich only in mineral resources. The absence of light at the sea bottom led to the conclusion that photosynthesis was not possible. Discoveries that took place from the late 1970s have shown that there are microbes and animals that live in the sea bottom, whose life is based on a different process, called chemosynthesis. In 1977, an expedition led by the Woods Hole Oceanographic Institution discovered dense biological communities inhabiting the hydrothermal vents situated two hundred miles NW from the Galapagos Islands83. From then on, scientific discoveries included important concentrations of biological communities84 on polymetallic nodules, hydrothermal vents, seamounts, gas hydrates, deep sea trenches, submarine canyons, deep sea coral reefs and cold seep and pockmarks85. Although the biodiversity of the deep sea is little known, it has been estimated that the deep sea may be the habitat of 10 million species86. It has been discovered that the sulphide in the vent high-temperature fluid-escape is the primary substance that supports abundant biological populations, which life is based on chemosynthesis. Hydrothermal vents host one of the highest levels of fauna abundance and microbial diversity on earth87. The

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micro-organisms

that

have

adapted

to

the

extreme

environment

(“extremophiles” and “hyperthermophiles”) are the basis of a food chain formed also by other marine organisms. The vent micro-organisms use the chemical energy of the vent to manufacture carbohydrates to nourish themselves88. More than 500 animal species inhabit the hydrothermal vents. Vents are the habitat of macro and micro-organisms. The biodiversity present at each vent system varies, and most of the organisms that inhabit vents are highly dense in population and highly endemic89. These micro-organisms are called “extremophiles” because they live in extreme environments where no other micro-organisms are found. These extreme conditions include high temperature, pH, pressure and salt concentration, or high or low temperature, nutrient concentration, or water availability90. In the case of the vents, these organisms are adapted to their extreme physio-chemical conditions91 and are therefore resistant to temperatures of above 100 degrees Celsius. Some of the vent bacteria have developed symbiotic relationships with other fauna, of which they are the only source of food, such as giant clams, tube worms and mussels92. Extremophiles could contribute to the scientific understanding of the origins of life on Earth. But apart from the strong scientific interest, extremophiles of hydrothermal vents can also have diverse commercial applications through biotechnology93, and there is evidence of high commercial interest94. Most extremophiles belong to the domain of the archaea. With the discovery of the archaea, organisms are now separated in three domains: archaea, bacteria and eucarya95. Access to areas of depths ranging from 4,000 to 6,000 meters is possible by research submersibles only. The rest of the deep ocean floor has

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depths to 11,000 m. Only very few countries have nowadays the submersibles for accessing to such areas96. Genetic material -any material of plant, animal, microbial or other origin containing functional units of heredity- is a part of biodiversity97. Genetic resources are components of biodiversity and basic raw material for the production of food, pharmaceuticals, seeds, cosmetics, etc. Access to such resources and exclusive appropriation by means of intellectual property rights has global economic and social implications.

3.2.i. The uses and impacts The main commercial interest in the seabed biodiversity, in particular that of the hydrothermal vents, is its exploitation through biotechnology98 and the waste, agriculture, pharmaceutical and cosmetics industries99. Applications of thermophiles in general include the use of their enzymes100 -which are highly stable to extremes of temperatures, pH and salt concentration- in detergents, food preservation, and flow enhancement in deep oil wells, paper bleaching101, as well as the microbes themselves as bioreactors with roles in concentrating and refining metallic mineral ores102. Many scientific research institutions are conducting marine scientific research in relation to hydrothermal vents; and there are several examples of this kind of institutions collaborating with the industry103. The enormous potential represented by biodiversity shows the use of biological organisms of the Area is the most immediate and lucrative activity of exploitation of the resources of the Area104. As an example of such potential, it can be mentioned that the first commercial enzyme isolated from an extremophile is Taq polymerase, a molecule that helps amplify trace quantities of DNA105. This molecule, obtained from the Yellowstone National Park, became the basis of a major

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scientific tool called polymerase chain reaction, which is used—among others—for DNA fingerprinting. Roche owns the property rights to this enzyme. The present market for such product has been estimated to be of about

USD

100

million106.

Another

very

important

use

is

in

pharmaceuticals, where therapeutic enzymes extracted from natural products are said to account for approx. half the USD 2.5 billion world market of enzymes107. The enzymes of extremophiles are adaptable for many industrial processes involving high temperature, high pressure or extreme pH. According to one study, at least seven companies dedicated to biotechnology are at present actively involved in the development of products or in collaboration with research institutions aiming at developing products in respect of derivatives of thermophiles or hyperthermophiles of hydrothermal vents108. According to some estimations, the potential market for these industrial uses could be USD 3 billion a year109. These organisms, in particular thermophiles and extremophiles are a matter of increasing international interest110, due to their high potential for industrial (food processing, detergents and degradation of toxic wastes111) and pharmaceutical applications. Although the biodiversity of the deep seabed has hardly been explored112, it must be mentioned that several deep seabed organisms have already been used for commercial applications and therefore patented113. These organisms seem to have a very high potential for biotechnology. The following is a summary of some of the findings up to date: * Archaeoglobus fulgidus was the first sulphur-metabolizing organism to be genome sequenced; it is a bacteria that contributes to deep sub-surface oil well souring by iron sulphide, which corrodes iron and steel in oil and gas processing systems114; * the company New England BioLabs Inc. (United States) has commercialized many products derived from deep seabed organisms, like the Deep VentR® DNA Polymerase (obtained from a bacterium carrying polymerase genes), Pyrococcus sp (a

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hydrothermal vent species found at more than 2,000 meters deep and at temperatures of up to 104 degrees Celsius), and the Therminatora DNA Polymerase (obtained from a geneticallymodified form of the DNA polymerase of Thermococcus Sp) 115; * the company Sederma (France) has developed commercial skin protection products providing higher resistance to UV and heat exposure on the basis of enzymes isolated from the extremophile Thermus thermophilus, from the deep sea116; * Roche has used T. thermophilus and other thermophiles to develop improvements in the amplification of nucleic acids117; * Aquaartis (France) has developed a library of extracts of around 1,000 marine bacteria isolated from marine organisms and sediments. This library, called BactoScreenTM is believed to contain some microorganisms from the seabed environments118; * according to the National Oceanic and Atmospheric Administration of the United States, several compounds derived from deep seabed organisms are under study with the aim of developing anti-cancer products119; * Diversa Corporation has patented a high number of discoveries involved genetic resources from deep seabed organisms, and products have been already commercialized, such as the PyrolaseTM 160 enzyme, used to reduce viscosity, and the ThermalAceTM DNA Polymerase, used in DNA sequencing120; * HyTest Ltd. (Finland) commercializes the Thermus aquaticus DNA polymerase Taq Red, which is used as an enzyme for molecular biology121; and * the company Promega (United States) commercializes the thermostable Tth Polymerasea, which is used as an enzyme for molecular biology122. Many of these inventions have been the objects of patents123, and several other patents have been granted involving genetic resources from the deep seabed, although in the case of many of those patents it is not yet clear if commercial applications could be developed124. As regards the impacts of human activity on the organisms of the deep seabed, once they start, deep seabed mining activities will represent a threat to biodiversity associated with those formations125, as it implies disturbance to living organisms or even the removal of those that are

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attached to mineral deposits. Mining for polymetallic sulphide deposits poses a great potential physical threat to biological communities of the vents, as it may imply physical damage to the vents126. In relation to hydrothermal vent and other deep seabed communities in particular, the most immediate threat may be marine scientific research127, as many marine scientific research activities have sampling of macro and micro-organisms as their primary goal, and sampling could cause adverse impacts to the communities involved128. As explained in the Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation and sustainable use of genetic resources on the deep seabed, effects of biological and geological sampling operations on vent faunal communities have already been documented129. As vent sites become the focus of intensive, long-term investigation, it will become essential to introduce mitigative measures to avoid significant loss of habitat or oversampling populations. It has been suggested that a way to avoid destroying ecosystems through mining would be to limit any potential mining to older polymetallic sulphide deposits that are no longer active130. Destructive fishing practices can have a negative impact on the biological communities of seamounts and other underwater formations131. Bottom trawling, in particular, is a fishing method that implies the dragging of large weighted nets across the ocean floor to catch fish that dwell on or near the bottom. In 2004, a coalition of marine scientists urged the UN to adopt a moratorium on high-seas bottom trawling132.

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4. THE PROVISIONS OF PART XI OF UNCLOS AND OF THE CONVENTION ON BIOLOGICAL DIVERSITY

4.1. The provisions of UNCLOS The intention of the negotiators of UNCLOS was to settle “all issues relating to the law of the sea”133. The sixth paragraph of the Preamble of UNCLOS states that they aimed through the Convention “to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States”. Article 1 of UNCLOS defines the use of terms and scope. Among others, it defines the “Area” and the “activities in the Area”. The Area is defined as “the seabed and ocean floor and the subsoil thereof beyond the limits of national jurisdiction”134, and “activities in the Area” are defined as “all activities for exploration for, and exploitation of, the resources of the Area” 135. Part XI and the 1994 Agreement set forth the legal regime applicable to the Area. Article 136 establishes that “the Area and its resources are the common heritage of mankind”. The elements that have the legal status of common heritage of mankind are, therefore, two: the resources of the Area—with the definition commented below—and the Area itself, that is to say, the seabed and ocean floor and the subsoil thereof beyond the limits of national jurisdiction.

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The legal status of the Area136 derives from or is an elaboration of the principle of the common heritage of mankind (CHM) and follows the terms of Resolution 2749 (XXV). No State can claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor can any State or juridical person appropriate any part thereof. If made, such claim or appropriation shall not be recognized. The rights over the resources of the Area are vested in mankind as a whole, and the International Seabed Authority is the international organization created by the Convention137 with the mandate to oversee the application of the Convention138. The Authority shall act on behalf of mankind139. The mineral resources recovered from the Area can be alienated only in accordance with the regime provided for in the Convention and the Agreement and with the regulations and procedures of the Authority. No State or natural or juridical person can claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with the regime of the Convention and the Agreement. The other important provision which reflects the principle of the common heritage of mankind is that activities in the Area shall be carried out for the benefit of mankind as a whole, irrespective of the location of States, whether costal or land-locked, and taking into particular consideration the needs and interests of developing countries140. The financial and other benefits derived from activities in the Area are to be equitably shared, and the Authority is entrusted to adopt the necessary provisions to accomplish this objective141. Finally, the other pillar of the CHM is that the Area shall be open to use exclusively for peaceful purposes by all States without discrimination142. Article 311 deals with the relation of UNCLOS with other conventions and international agreements. Paragraph 6 of Article 311 provides that

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States Parties agree that there shall be no amendment to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof. This provision has given place to some discussion on whether it establishes a rule of jus cogens (peremptory norm). Although, this issue will be dealt with below, it is clear that Parties to UNCLOS agreed to set a limit to their own possibilities of amending the Convention when establishing that the common heritage of mankind principle, qualified as “basic principle”, was not to be touched in any future amendment of the Convention. The definition of “resources” is provided by Article 133, which states that the term refers to “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”. It must be noted, therefore, that while Resolution 2749 (XXV)— which principles the Convention sought to develop—did not provide a definition of resources, Part XI is only applicable to “mineral” resources143. By the same token, “activities in the Area” are “all activities of exploration for, and exploitation of, the resources of the Area”144. The term “resources” had not been specifically defined in the different proposals for the regime of the Area until the third session (1975)145, when the ISNT/Part I, under Part I: Interpretation, introduced an article 1 which contained the following definition: “”Resources” means resources in situ”146. In 1975, after the Third Session, the United States made an informal proposal for amendments to article 1 of the ISNT/Part I. One of the definitions which amendment was proposed was “resources” to mean “mineral resources in situ”147. Such a definition was also repeated in the informal proposal that the Chairman of the First Committee made in 1976148. At the end of the 1976 session, the definition had been incorporated into Article 1 of the RSNT/Part I. It remained untouched in the ICNT, the ICNT/Rev.1, the ICNT/Rev.2 and the

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ICNT/Rev.3. At the tenth session (1981), the definition included in the draft convention was as follows: “”resources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules”149. Being designed to apply to the seabed and ocean floor—beyond national jurisdiction—the regime of the Area does not in any way affect the legal status of the waters superjacent to the Area or of the air space above those waters150. This is one of the clear manifestations of the “zonal approach” adopted by the Convention, by which each maritime area is ruled by a specific legal regime which applies, geographically, only to that area. In this case, the Convention safeguards the regime which is specific to the water column superjacent to the Area, that of the high seas151. As indicated above, the International Seabed Authority is an international organization created by the Convention. It is one of the three institutions established by UNCLOS152, being the only one of an intergovernmental character. All Parties to the Convention and the Agreement are ipso facto Members of the Authority153. The aim of the Authority is to organize and control activities in the Area with a view to administering its (mineral) resources154. The Convention has given the Authority express powers to carry out its functions and it also has all such incidental powers consistent with the Convention, as are necessary for the exercise of its powers and functions with respect to activities in the Area155. The only provisions of Part XI that could be read as applicable to the biodiversity in the Area are those referred to the protection and preservation of the marine environment and those related to marine scientific research in the Area. Article 145 of the Convention provides that the effective measures shall be taken (by the Authority) to ensure effective

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protection for the marine environment from any harmful effects of the activities in the Area. The Authority, therefore is entitled to adopt appropriate rules, regulations and procedures for, inter alia, the prevention of damage to the flora and fauna of the marine environment. This faculty does not refer to the protection and preservation of the marine environment in general, but its protection and preservation from harmful effects that could arise from the activities in the Area. The contractors are bound by the rules, regulations and procedures adopted in this regard by the ISA156. The ISA has agreed on rules for the protection of the marine environment in the Regulations on prospecting and exploration for polymetallic nodules in the Area (so-called “Mining Code”), which was adopted at the sixth session of the Authority157. Also, the Legal and Technical Commission (subsidiary organ of the Council) adopted in 2002 a set of Recommendations for the guidance of the contractors for the assessment of the possible environmental impacts arising from exploration for polymetallic nodules in the Area158. Not only the exploration and exploitation of the resources of the Area has to benefit mankind as a whole, marine scientific research shall also be carried out with that objective and only for peaceful purposes159. In addition to that, all objects of an archaeological and historical nature which could be found in the Area must be preserved or disposed of for the benefit of mankind as a whole160. As to marine scientific research in the Area, the Authority has the mandate to carry out and encourage such activities and to coordinate and disseminate the results of such research and analysis161, so as to ensure that the objective of the benefit of mankind is accomplished. The Authority can itself carry out marine scientific research concerning the Area and its resources. As regards the role of States, they shall promote international

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cooperation in marine scientific research in the Area, including the participation in international programmes and the strengthening of research capabilities of less technologically developed States through programmes developed by the Authority. Article 256 emphasizes that MSR in the Area is to be carried out in conformity with the rules of Part XI. This provision makes it clear that scientific research in the Area is not subject to the rules of the high seas162. UNCLOS does not provide a definition neither of “marine scientific research” nor of “commercially-oriented activities” relating to the resources of the sea. Nevertheless, in relation to mineral resources of the Area, it distinguishes two types of activities: marine scientific research—research which programmes, objectives and knowledge resulting from is published available for publication and dissemination—and commercially oriented mining activities -the search and the recovery for commercial purposes of the resources (within the meaning of Article 136) of the Area163. The ISA is not only to promote marine scientific research but also to coordinate and disseminate the results of research164. The regime provided for in Part XI establishes specific rules for the conduct of States in the Area and creates an International Seabed Authority, with specific functions and powers derived from the status of the Area as “common heritage of mankind”. The negotiators of UNCLOS ensured that such status would not be changed in any way if in the future the Convention were subject to amendments. The analysis above shows that although the object and purpose of UNCLOS was to encompass all the uses of the oceans, negotiators did not foresee, at the Third Conference, the existence and the potential of biodiversity in the seabed and ocean floor beyond the limits of national jurisdiction. The Convention, therefore, does not provide an answer as to

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what rules should govern access to biodiversity in the Area, as Part XI applies to mineral resources only.

4.2. The provisions of the Convention on Biological Diversity (CBD). The Convention on Biological Diversity165 was concluded in 1992 with three fundamental objectives: a) the conservation of biological diversity, b) the sustainable use of its components, and c) the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding166. The CBD affirmed that “the conservation of biological diversity is a common concern of humankind167, but it rejected any declaration of biological diversity as a whole as “common heritage of mankind”, assuring States their sovereignty over their natural resources. The Preamble refers to the precautionary approach168 by stating that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat. It further notes that “the fundamental requirement for the conservation of biological diversity is the in-situ conservation of ecosystems and natural habitats”169. According to Article 4, the CBD applies, in respect to States Parties, differently in areas within national jurisdiction and in areas beyond national jurisdiction. In the former, the CBD applies to components of biological diversity as well as to processes and activities. In areas beyond the limits of national jurisdiction, it only applies to activities and processes carried out under the jurisdiction or control of States Parties.

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The CBD applies to both terrestrial and marine environments. The manner in which the Convention is to be applied in each maritime area is not defined by CBD. Article 22.2 of CBD provides that, in respect to the marine environment, Parties shall implement the Convention “consistently with the rights and obligations of States under the law of the sea”. Therefore, application of CBD to the components of biological diversity, including their use, and to processes and activities is to be determined in accordance with the provisions of UNCLOS relating to the rights of States in the different maritime areas. Accordingly, as the CBD applies to components of biological diversity as well as to processes and activities “within national jurisdiction of States”, it applies, besides the territory of States, in their internal waters, territorial seas, exclusive economic zones and continental shelves. As regards areas beyond national jurisdiction—the high seas and the Area— Parties to CBD are required to apply the CBD to activities and processes undertaken by their nationals only170. It must be noted that although applicable to terrestrial and marine environments, the provisions of CBD are very much land-oriented171. Its rules applicable to components of biodiversity in areas beyond national jurisdiction are limited to the duty of Parties to cooperate IN the conservation and sustainable use. Only in 1995 the CBD took action regarding the marine environment. The second Conference of the Parties (COP) adopted Decision II/10, known as the “Jakarta Mandate” on Marine and Coastal Biological Diversity, which included a multi-year programme of work on the issue. Nevertheless, the biological resources of the seabed and ocean floor beyond national jurisdiction have not been the focus of the work of CBD until recently.

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The COP has, according to Article 23, the power to consider and adopt amendments to the Convention, protocols or additional annexes or undertake any additional action required for the accomplishment of the purposes of the Convention. It could undertake measures which involve cooperation, but the meaning of paragraph 2 of Article 22.2 is that the status of maritime areas and their resources should be determined in accordance with the rules of UNCLOS. The COP, thus, does not have the power to determine the legal status of maritime areas and the rules on access to resources derived from that status.

4.3. Recent developments – CBD and UNCLOS 4.3.i. CBD Paragraph 12 of decision II/10 of the 1995 COP of CBD, the Parties requested the Executive Secretary of the Convention to undertake, in consultation with the United Nations Division for Ocean Affairs and the Law of the Sea “study of the relationship between the Convention of Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation and sustainable use of genetic resources on the deep seabed, with a view to enabling the Subsidiary Body on Scientific, Technical and Technological Advice to address at future meetings, as appropriate, the scientific, technical, and technological issues relating to bio-prospecting172 of genetic resources on the deep seabed173”. The Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation and sustainable use of genetic resources on the deep seabed (decision II/10 of the Conference of the Parties to the Convention on Biological Diversity) was finally issued in February 2003174. It was presented to the eighth meeting of the SBSTTA in Montreal in 2003.

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The study confirmed that while UNCLOS provides a regime applicable to marine scientific research, there seems to be a lacunae in international law with regard to commercially oriented activities175. It also reached the conclusion that in respect to benefit-sharing, the provisions of CBD are far from being adequate. The three options available would be, according to the study: a) maintaining the status quo. Such an approach would, in the view of the study, have the consequence that deep seabed genetic resources would be constantly under threat of over-exploitation, and there would be no guarantee that the benefits arising out of their exploitation will be shared on a fair and equitable basis amongst all States; it stated that “free-for-all” would not only be contrary to the regulatory intent of the United Nations Convention on the Law of the Sea as a whole, it would also run counter to the specific regime of the Area, which was designed to carefully regulate and protect seabed resources designated as the common heritage of mankind176; b) the extension of the regime of Part XI of UNCLOS to biodiversity. Such an approach would fulfill the intention of the negotiators of UNCLOS, as biological resources would have been included in the regime of Part XI had the negotiators known about their existence; it also implies that the non-appropriation, peaceful use and benefit-sharing principles would serve as a basis to define the questions of exploitation and benefit sharing; also, bringing genetic resources within such a regime would allow an integrated management of the Area, enabling the International Seabed Authority to manage both the biological and the mineral resources in a comprehensive coherent manner177; and c) use of the framework under the CBD. This would provide a number of tools to ensure the conservation and sustainable use of resources not envisaged in UNCLOS but, at the same time, would entail the creation of an international body178. According to the study, the last two options are not mutually exclusive and could be integrated. It also underlined the issue of intellectual property rights.

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As it included “suggested recommendations on the subject for the consideration of the Subsidiary Body”179, the study raised contradictory positions by Parties in relation to the competence of SBSTTA or/and CBD to deal with the issue180. Apart from requesting the executive Secretary to compile and synthesize, in cooperation with relevant international organizations, information on the status and trends of deep seabed genetic resources and on methods to identify, assess and monitor genetic resources in the deep seabed beyond national jurisdiction, the SBSTTA recommended the COP to invite the UN General Assembly to call upon relevant organizations to review issues relating to the conservation and sustainable use of genetic resources of the deep seabed beyond national jurisdiction and to make appropriate recommendations to the UNGA regarding appropriate actions181. In 2004, the 7th COP of CBD adopted Decision VII/5 “Marine and coastal biological diversity”, which called upon the UN General Assembly and other relevant international and regional organizations, within their mandate, to urgently take the necessary short-term, medium-term and longterm measures to eliminate or avoid destructive practices, consistent with international law, on scientific basis, including the application of precaution to the marine biological diversity associated with marine areas beyond the limits of national jurisdiction. The COP also made specific reference to the conservation and sustainable use of deep seabed genetic resources beyond national jurisdiction as regards the issues arising from the Study, and took the following steps: - it requested the Executive Secretary, in collaboration with international organizations (including the ISA) to compile information on the methods for the identification, assessment and monitoring of genetic resources of the seabed and ocean floor and subsoil thereof, in areas beyond the limits of national jurisdiction, compile and synthesize information on their status and trends

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including identification of threats to such genetic resources and the technical options for their protection; - it welcomed UNGA Resolution 58/240 and invited Parties to raise their concerns on the issue of conservation and sustainable use of genetic resources of the deep seabed beyond limits of national jurisdiction to the following GA, and further invited the GA to coordinate work on the issue; and - invited Parties and other States to identify activities and processes under their jurisdiction or control which may have significant adverse impact on deep seabed ecosystems and species beyond the limits of national jurisdiction.

4.3.ii. UNCLOS 4.3.ii. a) The International Seabed Authority The ISA appears to be determined to be confined to its mandate arising from the text of UNCLOS. Its Secretary General has clearly stated at the 9th Session of the Authority that the purpose of the organization “is not to deal with it [biodiversity] in a comprehensive way; our purpose is to deal with it in a manner which would be of interest to the authority [in regard to the regulation of deep-sea mining]” and that the ISA is “not looking to licence bioprospectors or to deal with the patent rights of bioprospectors”182. The ISA has progressed with work on draft regulations for prospecting and exploitation for polymetallic sulphides and cobalt-rich ferromanganese crusts in the Area183. The work undertaken by the ISA, in particular by its LTC, takes into due consideration the question of the impact of mining activities in the biodiversity of the Area. As regards marine scientific research, the ISA has stated that biodiversity is one of the primary areas of research of the Authority, but recognized that the ISA should give more detailed consideration as to how

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best to coordinate and disseminate the results of marine scientific research, as required by the Convention184. In May 2004, in the framework of the Tenth Anniversary of its establishment, the ISA held a two-day panel discussion by experts on its future directions and prospects185. Experts referred to the biodiversity in the Area and to the potential threats, which include intensive scientific study, bio-prospecting, mineral resource exploitation and high seas fisheries. One of the experts suggested that the Parties to UNCLOS should urgently consider the mandate of ISA with a view to include the control of resources other than minerals186. The Legal and Technical Commission of ISA commended one of its Members with the task of studying the issue of the management of biodiversity in the Area. The study was presented in May 2004. As regards the legal regime, it concludes that it would be advisable to draft “provisions aimed at preserving the basic concept of the common heritage of mankind of the Area and its resources through the fair and equitable utilization of its genetic resources”187.

4.3.ii.b) The General Assembly of the United Nations In parallel to the developments at CBD, the Secretary-General of the UN included a reference to the issue in his Report to the 50th session of the UNGA. When addressing the Meeting of States Parties to UNCLOS (SPLOS), the Secretary-General referred to the study requested by the second COP of CBD to the Executive Secretary stating that “it is important that States Parties be aware of these developments, in a timely way” and urging States Parties to coordinate their activities particularly with respect to the conduct of reviews of the relationship between UNCLOS and CBD

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and the need of taking measures, including “the possible development of new or additional rules”188. The Report of the Secretary General to the General Assembly at its st

51 Session included a paragraph on the issue, which stated that “[t]he topic touches not only on the protection and preservation of the marine environment, including that of the international seabed area, but also on such matters as the operation of the consent regime for marine scientific research, (…), the duties of conservation and management of the living resources of the high seas and the sustainable development of living marine resources generally”, and added that “[t]he specific issue of access points to the need for the rational and orderly development of activities relating to the utilization of genetic resources derived from the deep seabed area beyond the limits of national jurisdiction”189. The Resolution on Oceans and the Law of the Sea adopted by the UNGA at its 57th Session, included a paragraph that encouraged “relevant international organizations, […], to consider urgently ways to integrate and improve on a scientific basis the management of risks to marine biodiversity of seamounts and certain other underwater features within the framework of the Convention”190. The paragraph was not clear neither in whether it referred to the biodiversity of the Area or to biodiversity of the deep seabed irrespective of the maritime area they inhabit, nor in whether it also addressed the living organisms of the water column. At its 58th session, the UNGA referred particularly to biodiversity in areas beyond national jurisdiction (not limited to the Area)191, inviting relevant bodies to investigate how to better address -on the basis of science and precaution- the threats and risks to vulnerable and threatened marine ecosystems and biodiversity in areas beyond national jurisdiction, how existing treaties and other relevant instruments can be used in this process

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consistent with international law, in particular with the Convention, and with the principles of an integrated ecosystem-based approach to management, and to explore a range of potential approaches and tools for their protection and management. The GA also requested the SecretaryGeneral to cooperate and liaise with those bodies and to submit an addendum to his annual report to the General Assembly at its fifty-ninth session, describing the threats and risks to such marine ecosystems and biodiversity in areas beyond national jurisdiction as well as details on any conservation and management measures in place at the global, regional, sub-regional or national levels addressing these issues192. The GA also decided to include the issue “new sustainable uses of the oceans, including the conservation and management of the biological diversity of the seabed in areas beyond national jurisdiction” for discussion at the fifth meeting of the informal consultative process established by General Assembly Resolution 54/33 (UNICPO)193. At the fifth UNICPO, several experts made presentations on the biodiversity beyond national jurisdiction. On the legal framework, numerous delegations stated that the biodiversity in the Area fall within the concept of the common heritage of mankind, while several others emphasized that such concept covers only mineral resources194. The Addendum to the Report of the Secretary General to the 59th session of the General Assembly contains an overall analysis of the ecosystems, threats and applicable legal instruments. It refers not only to the Area, but also to the high seas195. Several interventions made at the 59th General Assembly, made specific reference to the need to address the issue of biodiversity of the deep seabed beyond national jurisdiction, while some others also stated that the fact that the Area has the legal status of common heritage of mankind

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should ensure that all mankind benefits from its resources, including biodiversity196. The UNGA decided to establish an Ad-Hoc Open-ended Informal Working Group to study issued relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction with the following mandate: - to survey the past and present activities of the UN and other relevant international organizations with regard to the conservation and sustainable use of marine biological diversity beyond the limits of national jurisdiction; - to examine the scientific, technical, economic, legal, environmental, socio-economic and other aspects of these issues; - to identify key issues and questions where more detailed background studies would facilitate consideration by States of these issues; and - to indicate possible options and approaches to promote international cooperation and coordination for the conservation of biodiversity beyond the limits of national jurisdiction197.

5. THE ISSUE OF INTELLECTUAL PROPERTY RIGHTS Several works have highlighted that besides the limited knowledge about biodiversity of the seabed and ocean floor beyond national jurisdiction, living organisms of the deep seabed offer a great potential for developments in the biotechnology sector. At present, more than 15,000 products based on marine microbes, algae and invertebrates have been already developed198. Although the majority of the organisms obtained from the deep seabed have been taken, up to now, from areas within national jurisdiction—which are more accessible—there have already been projects which used biological organisms from areas beyond national jurisdiction.

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Since these resources can be mainly used by industry, in particular pharmaceutical companies, the issue of intellectual property rights (IPRs) is one of the most challenging aspects if a future regime for the biodiversity of the Area is to be developed. Although UNCLOS recognizes the issue of IPRs, as they can have implications on marine scientific research199 the issue is regulated by specific norms of international law. Besides these norms, a regime for biological resources in the Area which did not include provisions on IPRs would be incomplete. The first international instrument that aimed at disciplining industrial property rights is the Paris Convention for the Protection of Industrial Property (1883), which was successively revised in 1900, 1911, 1925, 1934, 1958, 1967 and 1979. The Convention defines the scope of “industrial property”, which has as its object patents, utility models, industrial designs, trade marks, service marks, trade names, and indications of source or appellations of origin200. By virtue of the Convention, State Parties constituted the “Paris Union” for the protection of industrial property. Its main purpose is the granting of national treatment among the Members of the Union. Nevertheless, the Paris Convention does not provide patentability requirements, leaving them to national legislations. This is due to the fact that patent law is structured in such a way that patentability requirements are established by national laws, and the rights derived from a patent extend only to the territory of the State granting it. The second milestone in international law for the protection of intellectual property is the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs Agreement), negotiated during the Uruguay Round of the World Trade Organization (WTO). The TRIPs

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Agreement develops and adjusts the provisions of the Paris Convention in order to adapt them to scientific and technological advancement201. The TRIPS Agreement is a part of the corpus of the WTO. It establishes the criteria according to which WTO Members should design and adopt their patent laws202. The protection given by a patent means that the patent-holder has the exclusive right to exploit an unobvious, new and useful invention for a limited period of time, within the territory of a State203, in exchange of the disclosure of the invention to the public204. Patents are necessary for the emergence of new inventions. According to Article 27 of the TRIPS Agreement, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Article 28 of the same Agreement defines which are the rights granted by a patent. The patentable subject matter is constituted by any product or process which complies with the requirements of Article 27. When the patentable subject matter is a product, the patent-owner will have exclusive rights to prevent third parties not having the owner’s consent from the acts of making, using, offering for sale, selling or importing that product for sale. When the patentable subject matter is a process, the patent owner shall have exclusive rights to prevent third parties not having his consent from the acts of using the process and of using, offering for sale, selling or importing for selling at least the product obtained directly by that process. In sum, the existence of a patent impedes the making, use or commercialization of any product containing the patented invention. Article 30 of the TRIPS Agreement establishes that States can provide limited exceptions to the rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of

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the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking into account the legitimate interests of third parties. The Agreement also provides, in Article 31, that the internal laws of States can allow for other uses of the subject matter of a patent without the authorization of the patent owner. Such uses are subjected to a series of requirements contained in paragraphs (a) to (l) of the same Article. According to Article 27.3.b), States can exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. In patent law, an “invention” is different from a “discovery”. A discovery (although scientific) is the mere verification of the existence of a substance or organism. An invention entails a human inventive step: the development of a product through the application of the substance or the organism or parts of it, or the development of a process for the development of a product based on the substance or the organism or parts of it. Nevertheless, the technological advances have given rise to State practices where such distinction is blurred. This means that, provided they “involve an inventive step”, are “new” and “capable of industrial application”, plants and animals can be patented. A patent for isolated and modified genetic material does not equate to having property rights over the genetic material, but it does confer the patent owner the exclusive right to impede that third parties make, use and commercialize the modified gene. It must be noted that when a third party obtains a license over the use or commercialization of a patentable subject matter, it must pay royalties to the patent owner. This is agreed in the form of a contract.

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Following the rule set forth in Article 27, substances existing in nature –including their genetic material- would not be patentable205. But as the definition of “invention” is subject to internal law, there are notorious differences about whether a living organism in its natural form can be considered an “invention” or not. Several developed countries provide for the patentability of biological organisms in their natural form206. Additionally, some national laws conceive “new” not as “of not previous existence” but as a product that, although existent in nature, was not previously known – this, in fact, is a discovery. By mid-2000, the United States Patent Office207 had granted more than 6,000 patents for isolated genes from living organisms208. On the other hand, the laws of most developing countries, provide that living organisms existent in nature are not patentable209. This disparity was also evidenced in the discussions at the WTO on biodiversity and intellectual property. Some countries have expressed their concern about the incompatibility that could arise between the TRIPS Agreement and CBD if countries are flexible in the interpretation of when an invention is new, involves an inventive step and is capable of industrial application and grant an excessively wide patent protection. In particular, they have shown concern on the patentability of living organisms in their natural form210. Neither the TRIPS Agreement nor the other international instruments on intellectual property require States the patentability of living organisms existing in nature. Although Article 27.3(b) provides that States may exclude from patentability plants and animals “other than microorganisms”, it is understood that the obligation to patent micro-organisms is nevertheless subject to the general rule of patentability stated in Article 27.1 (“patents shall be available for any inventions, whether products or

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processes, in all fields of technology, “provided that they are new, involve an inventive step and are capable of industrial application”). Therefore, the obligation to provide for the patenting of microorganisms (Article 27.2.(b) of the TRIPS Agreement) can be interpreted as applicable only to the genetically modified microorganisms, not to microorganisms in their natural form211. This is the logical conclusion which arises from the distinction between “invention” and “discovery”, as the purpose of the TRIPS Agreement is the protection of inventive steps. In this sense, it is clear under Article 27 that patents can be obtained for “any inventions”. Although TRIPS does not define such term, the same Article requires three conditions for an invention to be patentable: to be new, to involve an inventive step and to be capable of industrial application. Those three conditions are cumulative, it cannot be in good faith interpreted that any new product or process susceptible of industrial application could be patented although it does not entail any inventive step. Article 28 of the TRIPS Agreement adds clarity to this question, as it uses the term “make” when referring to one of the acts that the patent owner has the exclusive right to impede. The term “make” (in Spanish “fabricación”) implies that we are dealing with inventions that were “made” and not with organisms existing in nature. The biological resources in the Area can provide: the living organism existing in nature; a product made on the basis of the living organism; and eventually a process. The negotiation of a legal regime applicable to biological resources in the Area should provide rules not only for conservation and sustainable use of the resources, but also for intellectual property rights, as these resources can be “used” through patents. Notwithstanding the fact that they are rules which lie outside the law of the sea, any regime that did not

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include rules on IPRs would be incomplete, as it would not regulate the main source of income derived from such resources.

6. THE FORMULATION OF A REGIME APPLICABLE TO THE SUSTAINABLE

USE

AND

CONSERVATION

OF

THE

BIODIVERSITY OF THE AREA

6.1. Introduction Having analyzed the provisions of different legal instruments, in particular UNCLOS and CBD, it is clear that none of them provide specific rules applicable to the biodiversity in the Area. The pending legal issue is therefore whether they provide basic legal principles which would be of application in case the international community decides to undertake the negotiation of a specific regime. CBD establishes the general duty of States to cooperate in the conservation of biodiversity beyond national jurisdiction. It also provides other principles which could be used in a future specific regime. Nevertheless, is it undeniable that CBD is structured for its application to national environments. It does not provide clear guidelines for access to biodiversity in maritime areas outside national jurisdiction. Many of the principles of CBD could—and should—form part of a future legal regime. Such principles should be transposed to any new regime States may decide to negotiate. Nevertheless, it would be an almost impossible task to structure a legal regime on the basis of the principles of CBD alone. On the other hand, UNCLOS was deliberately designed to encompass all the uses of ocean space in a unique set of rules. Not only this intention is clear in the Preamble of the Convention, but it was also

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reiterated by Members of the UN in the Resolution on Oceans and the Law of the Sea adopted each year212. The purpose of this section is to elucidate if, unlike CBD, UNCLOS provides principles which could serve as a basis for the negotiation of a specific regime for the biological organisms of the Area. A careful analysis of its provisions could show that UNCLOS provides more answers than expected.

6.2. The high seas, the continental shelf and the zonal approach of UNCLOS At present, States and scholars that have undertaken the analysis of the issue have advanced some views on what would be the appropriate regime or approach to the biological organisms of the Area. It has been suggested that, taking into consideration that the legal regime for exploration and exploitation established in Part XI applies only to mineral resources, the freedom of the high seas would be, prima facie, the regime applicable to the biodiversity of the Area213. That would mean unilateral exploration and exploitation. As stated above, neither UNCLOS nor CBD define the legal status—and consequently the legal regime—of biological organisms of the Area. This also means that no legal instrument has defined that the high seas regime is applicable to such resources. Therefore, free access and exploitation of biological organisms of the Area is not explicitly granted by any international norm. It is nevertheless convenient to examine the legal regime of the high seas, to elucidate if the lack of express provisions in Part XI to one specific use of the Area has the necessary consequence of subjecting such use to the freedoms of the high seas. This is an important question, as some have

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suggested as a possibility the maintenance of the status quo, which would entail, in fact, in absence of any regulation, the unilateral use of the biodiversity of the Area on a “first come – first serve” basis. Therefore, in order to analyze whether to undertake the negotiation of a specific regime or not, we must examine whether the regime of the high seas is the appropriate set of rules for a new use of the Area. In such analysis, we will duly take into account the fact that UNCLOS adopted a “zonal approach”214 thus subjecting ocean resources to the maritime area in which they are located. UNCLOS adopted a criterion according to which all uses—including the exploitation of resources—of a maritime area are be subject to the legal regime of that maritime area. The fact that a particular rule characteristic to one maritime area was transposed to the legal regime of another maritime area does not contradict the approach. When that was the case, as the inclusion of the freedom of navigation of the high seas in the regime of the EEZ, such rule was made part of the regime in question through an express provision. The exploration and exploitation of the resources of the sea is the aspect in which the zonal approach is clear, as these activities are regulated by UNCLOS not on the basis of the nature of the resources or of their ecosystemic interaction but on the basis on the criterion of geographical appurtenance. Part VII of UNCLOS establishes the regime of the high seas. The 1958 Convention on the High Seas defined that maritime area as “all parts of the sea not included in the territorial sea or in the internal waters of a state”215. UNCLOS adopted a similar definition, although adding the necessary reference to other maritime areas that are also regulated by UNCLOS. So, Article 86 establishes that the provisions of Part VII are to be applied “to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in

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the archipelagic waters of an archipelagic State”. It should be pointed out that the term “parts of the sea” should be read to mean “waters”, as the high seas is defined in negative terms in relation to all other maritime areas composed by the water column. This explains the lack of reference to the continental shelf and the Area. Article 87 established the status of the high seas following the terms of the 1958 Convention on the High Seas and customary international law. All States, whether coastal or land-locked, enjoy the freedoms of the high seas. Those freedoms comprise, inter alia: -

-

the freedom of navigation; the freedom of overflight; the freedom to lay cables and pipelines, subject to Part VI; the freedom to construct artificial islands and other installations; permitted under international law, subject to Part VI; the freedom of fishing, subject to the conditions laid down in section 2 of Part VII; and the freedom of scientific research, subject to Parts VI and XIII.

It must be highlighted that UNCLOS made some additions to the freedoms of the high seas recognized by the 1958 Convention and customary international law: the freedom to construct artificial islands and other installations, the freedom to lay cables and pipelines, and the freedom of scientific research. The Convention makes reference to those freedoms in Article 87 due to the fact that the water column overlays the seabed. Nevertheless, it does not step aside from the zonal approach, and those uses of the sea are subject to the specific legal regime governing the maritime area in which they take place. In the case of artificial islands and other installations and cables and pipelines, UNCLOS subjects such activities to the provisions of Part VI (Continental Shelf). As regards scientific research,

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it is ruled by Part XIII if it takes place in the water column and by Part VI if it is undertaken in the seabed that forms part of the continental shelf. Article 87 of UNCLOS reflects the basic rule of the freedom of fishing of the 1958 Convention and customary international law216. Can such rule be applied to the take of biological organisms other than fishing? Some are of the opinion that although Part VII of the Convention uses the wide term “living resources” it is nevertheless used in the context of fishing, and that the take of microorganisms of the deep seabed cannot be assimilated to fishing, regardless of the technique or equipment used217. Nevertheless, it could be argued that Article 87 of UNCLOS enumerates the freedoms of the high seas in a form that does not exclude others uses. The expression “inter alia” in Article 87, together with the fact that the term “biological diversity” was not yet in use at the time of the negotiation of the Convention, could be cited in favor of the inclusion of the exploration and exploitation of the biological organisms in the Area in the regime of the high seas. That notwithstanding, other aspects of the high seas regime must be taken into consideration. As commented supra, Article 87 of UNCLOS makes three references to the continental shelf regime in relation to activities that take place on the continental shelf. The legal regime enshrined in Part VII does not regulate any of the uses of the continental shelf or the Area, as they are subjected to the regime of the maritime area in which they take place. In the same vein, the freedom of fishing in the high seas is limited to the fish resources of the water column. Some of the sedentary species of the continental shelf underlying the high seas are “fish”. Together with the fish of the water column, they can sometimes be part of the same ecosystem. Nevertheless, this did not make the negotiators of UNCLOS step aside from the zonal approach. They drew up specific and

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separate legal regimes for the living resources of the water column, on the one hand, and for the sedentary species of the seabed and ocean floor (continental shelf), on the other. The sedentary species218 of the continental shelf were included in the legal regime of such maritime area as early as 1953, when the International Law Commission (ILC) came to the conclusion that …the products of sedentary fisheries, in particular to the extent that they were natural resources permanently attached to the bed of the sea, should not be outside the scope of the regime adopted and that this aim could be achieved by using the term “natural resources219. In so doing, the ILC adopted the criterion that, notwithstanding the fact of being living resources, sedentary species beyond the territorial sea should not be subjected to the regime of the high seas. Therefore, living resources were subjected to separate legal regimes, depending on whether they are in constant contact with the seabed and ocean floor or inhabit the water column220. Following the zonal approach also evidenced in Part VI of the Convention it would not be reasonable to consider that the living resources of the Area could be subjected to the regime of the water column, i.e. the high seas. A Member of the Legal and Technical Commission of the ISA has highlighted that the organisms that inhabit the Area show a greater dependency on the seabed and ocean floor than those living in the continental shelf221. Another example of the zonal approach adopted by UNCLOS is Article 135, which provides that neither the provisions of Part XI nor the rights granted or exercised in accordance with that Part shall affect the legal status of superjacent waters. This provision is comparable to paragraph 1 of Article 78, according to which “[t]he rights of the coastal State over the

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continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters”222. Therefore, read together with Article 87, Article 135 of UNCLOS does nothing but confirm the zonal approach by establishing a clear distinction between the regimes of the high seas and the Area. Also Part XI of UNCLOS is clear in such approach. Article 134 very clearly provides that Part XI applies to “the Area”223. This shows that the legal regime created for the Area is applicable to the resources of that maritime space on the basis of geographical appurtenance, that is to say that the resources follow the legal nature of the maritime area in which they are located, as an expression of the maxim accessorium seguitur principale. It is also useful to have in mind the way in which UNCLOS dealt with marine scientific research in the Area and in the high seas. According to Articles 87 and 257, marine scientific research is one of the freedoms of the high seas, while, as provided for in Article 143 and 256, marine scientific research in the Area must be carried out “for the benefit of mankind as a whole”. The Seabed Authority shall promote and encourage the conduct of marine scientific research in the Area and shall co-ordinate and disseminate the result of such research. These provisions pose a relevant logical question. If marine scientific research—including MSR on biological organisms—in the Area is to be undertaken “for the benefit of mankind”, would it be reasonable to adopt the “first-come-first-serve” rule of the high seas for the exploration and exploitation of the same organisms?. Taking into consideration the zonal approach adopted by UNCLOS, the only viable conclusion is that, being organisms located in the Area, biological organisms of the Area cannot be subjected to the legal regime of a different maritime area, e.g. the high seas.

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The above conclusions would entail the application of the principles governing the Area to the biodiversity resources of the Area.

6.3. The legal principle of the common heritage of mankind and the Area. Its scope. Space law was the precursor as regards the principle224 of the common heritage of mankind225. The General Assembly Resolutions on outer space and the moon and other celestial bodies adopted in the 1960s enunciate the fundamental elements of the principle of the common heritage of mankind226. But although contributing to the emergence of the principle, space law did not expressly refer to a “common heritage of mankind” principle until the adoption of the Agreement governing the activities of States on the Moon and other Celestial Bodies in 1979227. Therefore, the Declaration of Principles embodied in UNGA Resolution 2749 (XXV) was the first international instrument to incorporate the common heritage of mankind as a principle from which other elements or concrete principles derive. This principle must guide the interpretation of Part XI of the Convention. The Area and its resources are the common heritage of mankind, but the definition of the term “resources” is limited to mineral resources. Nevertheless, having concluded that—being resources “in situ”228 in the Area—it would be unreasonable to subject the biological organisms of the Area to the regime of the high seas, it is necessary to examine the meaning and scope of the “common heritage of mankind” to determine whether States could–or should—apply it to the biological organisms of the Area. The term “common heritage of mankind” (CHM) is not defined in the Convention. What is its meaning?. The Declaration of Principles contained in Resolution 2749 (XXV) establishes that “the Area and its

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resources are the common heritage of mankind”. During the negotiations of UNCLOS, that text appeared as article 3 of the INSNT/Part 1. No subsequent changes were made to that basic principle during the Third Conference, which showed the lack of opposition229 to what became the content of Article 136. The term CHM230 was new to international law when it was introduced in the context of the law of the sea and space law, raising interesting discussions about its specific content. Some were of the idea that it was a concept devoid of precision or legal content231, while others made reference to “common patrimony” or to “res communis humanitatis”232. Many held the opinion that it was an enlargement of the traditional principle of res communis, which reflected the high principles of justice and equity233 or that it entailed the concept of “trust”, not at all unknown to international law234. Similar views expressed that the concept of “common heritage of mankind” implied the concept of “trust” to manage the resources for the benefit of mankind as a whole235 and that of a “trustee”, to regulate and manage the area and its resources on behalf of the international community236. Beyond these discussions, the meaning of this term for the purposes of the Convention is to be derived from other provisions of UNCLOS which contain specific elements of the principle237. From the first discussion on the term at the Legal Sub-Committee of the Seabed Committee, during its 1969 meetings, the notion of “common heritage of mankind” was conceived to provide the basis for specific elements concerning the area; accordingly all the rules and principles for activities in the sea-bed should be based on that notion238. Some of the specific principles, now contained in particular clauses of UNCLOS are: common property of the Area and its resources and non appropriation by States or persons239; the notion of trust and

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trustees240; indivisibility of the heritage241; the regulation of the use of that heritage by the international community242; the exploration and exploitation of the Area and its resources for the benefit of mankind (including the equitable distribution of benefits), in particular, developing countries243; and the principle of peaceful use244. The CHM emerged as a principle for the management of a whole maritime area and its resources that went very well beyond what was the rule up to that time, i.e. the freedoms of the high seas. The condition of the Area as CHM means that the resources should be subject to a common administration and are not to be left to the discretion of individual States245. It also conveys the idea that those resources must be administered in a sustainable manner for the benefit of all mankind, including future generations246, with an emphasis on the needs of developing countries. Finally, it implies some type of “machinery” in the form of an international institution to ensure that those resources are exploited for the benefit of mankind247. Such institution acts “on behalf of” mankind as a whole248. In sum, the essential elements of the CHM are, therefore, the common property, i.e. that the area and its resources in situ could never become private property or subjected to the sovereignty of any State, common benefit, and common management249. The beneficiary of the heritage, mankind, seems to have a dual significance: an inter-spatial one, as it comprises all present human beings; and an inter-temporal notion, as it also comprises the future generations250. Now, what is the acceptance of the common heritage of mankind principle among Parties and non-Parties to UNCLOS? 149 States are Parties to the Convention. 21 States are signatories to it. Some of those 170 States made a declaration at the moment of signature or ratification specifically supporting the principle, while none made a declaration opposing to it.

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The Declaration of Principles was unanimously adopted by the General Assembly. From the very beginning, there was consensus at the Third Conference that the regime should be elaborated on the basis of the Declaration of Principles. The intention was to save the Area and its resources “from competitive exploitation restricted necessarily to those with financial resources and the technological power to exploit them”251. The concept of the CHM was endorsed by all the developing and also by the developed countries. The United States252, in particular, supported the principle since the early stages of the negotiation. In 1970, it submitted a draft Convention that included the CHM principle. The declaration made by President Nixon made clear that “the International Seabed Area would be the common heritage of mankind and no State could exercise sovereignty or sovereign rights over this area or its resources”253. It then can be said that “[i]n the light of (…) the precise terms of paragraphs 4 and 14 of the Declaration and of the consensus of States expressed in the General Assembly and confirmed in the Law of the Sea Conference, it may be concluded that the international community does not regard any longer—if it ever regarded—the exploitation of the resources of the sea-bed as one of the freedoms of the sea to be exercised validly by individual States or private companies”254. The difficulties that some provisions of Part XI posed for developed countries did not relate to, and never affected, the significance of the principle of the common heritage of mankind255. The 1994 Agreement introduced several amendments to the Convention, but the principle contained in Article 136 as well as Article 311.6. was left untouched. In light of this, part of the literature is of the opinion that the common heritage of mankind principle forms part of the corpus of international customary law, which developed from the adoption of the

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Declaration of Principles256, since all the interested States, including the United States, acted during that period in support of the principle257. In this regard, such evolution seems to have taken place through the overall support to the main General Assembly Resolutions regarding the principle of the common heritage of mankind258, including the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations259 and through the acceptance of UNCLOS. Others have advanced the idea that the vote of the great majority of States both at the General Assembly and at the Third Conference make the principle binding erga omnes260. We must add that the common heritage of mankind principle is unmodifiable. Paragraph 6 of Article 311 enunciates the fundamental character of the principle261 when providing that States shall not, either by agreement of some or all the Parties to UNCLOS, amend the “basic” principle relating to the common heritage of mankind set forth in Article 136 and that there shall be no derogation thereof. This means that the legal status of the Area and its resources cannot be modified by agreement of some or all the Parties to UNCLOS. This provision was included in the draft Convention following a proposal made by the delegation of Chile, which stated that the basic principle of the common heritage of mankind was jus cogens. The proposal made by Chile read: “The States Parties to the present Convention accept and recognize on behalf of the international community as a whole that the provision relating to the common heritage of mankind set out in article 136 is a peremptory norm of general international law from which no derogation is permitted and which, consequently, can be modified only by a subsequent norm of general international law having the same character”. This proposal

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was difficult to accept by some delegations, and was re-submitted in 1980. At that time, there was strong general support for the proposal that the principle was in essence not exceptionable262, but there still was some difficulty with the wording. The compromise formula is the present text of paragraph 6 of Article 311263. Notwithstanding the fact that the proposal presented some difficulties in its original text, the essence of it was preserved in the text of paragraph 6 of Article 311, showing the fundamental nature that the common heritage of mankind principle has in the structure of the Convention. Now, what is the scope of such a principle? Could it be applied also to non-mineral resources? Article 136 states that “[t]he Area and its resources are the common heritage of mankind”. “Resources” means “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”. It is very clear that the Area itself if CHM. As regards its resources, the definition is clearly limited to mineral resources264, including—but not limited to—polymetallic nodules. Was the intention of the negotiators to give the Area the status of CHM and exclude some of its resources from that status? The text of Article 136 seems to require no interpretation, as it is clear that the definition of resources contained in Article 133 (a) comprises only mineral resources. Nevertheless, it is debatable whether it is legally logical that the Area itself has the condition of common heritage of mankind and some of its resources are excluded from that condition, or whether that was the real intention of the negotiators of UNCLOS. We have already made reference to the zonal approach adopted by UNCLOS. Such approach is very clear in the whole convention, but very

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particularly in Part XI. Having that approach in mind, a merely textual interpretation of Part XI, according to which the Area is the common heritage of mankind and some of its resources follow that legal nature while others do not, does not appear to be necessarily reasonable. With the aim to elucidate the scope of the common heritage of mankind principle, we must recourse to the purpose and object of UNCLOS, in general, and in relation to the Area, in particular. The general purpose of the Convention is “to settle […] all265 issues relating to the law of the sea”266. Turning to the Area, the specific purpose of the Convention is “to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the sea-bed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States”267. At this point, we must recall some important issues regarding treaty interpretation. The method that arises from Article 31 of the Vienna Convention of the Law of Treaties is not merely textual, but contextual, as it takes into account the object and purpose of the treaty as well as the preamble, the annexes, and other instruments relating to the treaty made by the parties268. All these form part of a single interpretative operation269 in which the interpreter seeks to elucidate the intention of the Parties, that is to say, their intention as expressed in the text in the light of the circumstances of the conclusion of the treaty270. The preparatory work271 of the Convention could, therefore, throw some light over the scope of the common heritage of mankind principle.

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The biological organisms of the seabed and ocean floor beyond national jurisdiction never appeared in the preparatory work of the Convention. Therefore, it reflects that the negotiators were aware only of the existence of mineral resources, in particular, polymetallic nodules272. The fact that the international community was unaware of the existence of biological organisms in the Area when the Convention was negotiated explains why the definition of “resources” was limited to minerals. As biological organisms were unknown at that time, it cannot reasonably be argued that the negotiators had the intention to exclude them from the legal nature of the Area. Contrary to that, the purpose of UNCLOS was to settle “all” issues related to the law of the sea273. We must also take into account that, as regards the purpose of the Convention to develop the principles embodied in Resolution 2749 (XXV), that the Declaration of Principles contained no definition of the “resources” of the Area. We can, therefore, reasonably conclude that the negotiators of UNCLOS were convinced that they were setting rules for all the issues of the law of the sea and that had no intention to exclude a certain category of resources from the legal status given to the Area. On the other hand, given the nature of the common heritage of mankind principle, would it be reasonable to conclude that some of the resources of the Area shall not follow the legal status of the Area only because they were unknown when the Convention was negotiated? This, and the fact that marine scientific research in the Area must be carried out for the benefit of humankind, leads us to the conclusion that a merely textual interpretation would not offer a reasonable solution for a definition of the status of biological organisms of the Area following the parameters of the Convention.

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Having arrived to the preceding conclusions, could it also be concluded that biodiversity is included in the regime set forth in Part XI? The answer must be negative. The definition of “resources” to which Part XI applies is clearly limited to minerals. In addition to that, the regime of Part XI is a regime for mineral resources only. Nevertheless, it its clear that if, and when, States decide to negotiate a legal regime for biological organisms they will have to have in mind the contradiction that would arise if some of the resources of the seabed and ocean floor beyond national jurisdiction follow the legal nature of the Area while others are subjected to the regime of a wholly different maritime space.

6.4. Elements for a future regime The legal regime set forth in Part XI is only applicable to mineral resources. Besides, due to the clear differences in the nature of mineral and biological organisms, it would not be possible even to transpose the elements of such regime. It would therefore be necessary to draw up a whole new regime taking into account the characteristics of biological organisms of the area and the ways in which exploration and exploitation of such resources take place. The regime should be drawn up on the basis of the common heritage of mankind principle. Only following such principle, the purpose of the Convention of developing the principles embodied in Resolution 2749 (XXV) would be accomplished. The common heritage of mankind principle implies that States and persons have no right of appropriation over the Area and its resources, that the resources are to be managed according to an equitable regime; it also entails the equitable sharing of benefits and the transmission of such

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heritage to future generations. The application of the common heritage of mankind principle would entail the direct application of Resolution 2749 (XXV) and of the provisions of the Convention which incorporate such principles274 to the biodiversity of the Area. As a result, - no State or person would be able to claim, exercise or acquire rights with respect to biological organisms of the Area, and those organisms would not be subject to appropriation by States or persons; - all rights over the biological organisms of the Area would be vested in mankind as a whole. Those resources would be inalienable. Once recovered from the Area, nevertheless, the biological organisms could be alienated in accordance with the legal regime to be negotiated; - States would have the responsibility to ensure that activities relating to biological organisms of the Area (which would be included in the definition of “activities in the Area”), whether carried out by States, State enterprises or persons which possess the nationality of States or are effectively controlled by them or their nationals, are carried out in conformity with the regime to be negotiated; - activities relating to biological organisms of the Area would be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing countries; - the legal regime to be negotiated would provide for the equitable sharing of financial and other economic benefits derived from the activities relating to biological organisms of the Area; - the biological organisms of the Area would be open to use exclusively for peaceful purposes275 by all States, whether coastal or land-locked, without discrimination276; - measures would be adopted in accordance with the regime to be negotiated for the acquisition of technology and scientific knowledge related to activities relating to biological organisms of

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the Area and to promote and encourage the transfer to developing States of such technology and scientific knowledge; - the activities relating to biological organisms of the Area would be conducted with reasonable regard for other activities carried out in the Area; - the effective participation of developing States in the activities relating to biological organisms of the Area would be promoted, taking into account their special interests and needs; - the activities relating to biological organisms of the Area would be carried out in such a manner as to foster healthy development of the world economy and balanced growth of international trade, and to promote international co-operation for the over-all development of all countries, especially development States, and with a view to ensuring, among others: the development of the resources of the Area, the orderly, safe, rational and sustainable management of the resources of the Area, and the development of the common heritage for the benefit of mankind as a whole. A new regime (which form will be discussed in 6.5. below) should regulate access to biological organisms of the Area and its exploitation. Activities related to biological organisms in the Area should take place only in accordance with the legal regime to be negotiated. The regime would have to take into consideration the specific characteristic of the resources involved, and incorporate certain basic elements, that would be developed by the negotiating States into specific clauses. The regime would have to define “biological organisms in situ in the Area”. It would have to provide, too, a mechanism for cooperation and coordination with the CBD regarding the conservation of biological organisms of the Area. In addition, a new regime for access and exploitation of biological organisms could contain the elements described below.

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6.4.i. Definitions: “resources of the Area” and “biological organisms of the Area” A new regime negotiated to be applicable to biodiversity in the Area would be legally linked to Part XI of UNCLOS (see item 6.5. below), as Part XI applies to the Area277 and embodies the Principles Governing that maritime space278. Article 133 of UNCLOS provides: “For the purposes of this Part: (a) "resources" means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules; (b) resources, when recovered from the Area, are referred to as "minerals". The text of this provision, therefore, would need to be adjusted to the new category of resources. This would entail the modification of the definition embodied in paragraph (a), in order to incorporate the biological organisms of the Area into the definition of “resources”, as wells as a modification of paragraph (b), to limit its scope to mineral resources, which would cease to be the only category of resources included in the definition given by paragraph (a). In order to include the biological organisms of the Area in the definition of Article 133 (a), States negotiating a future regime would have to define what is to be understood by “biological organisms of the Area” (or other term), mainly, what would be the characteristics that define an organism as a resource of the water column (the high seas) or of the seabed and ocean floor. The definition of sedentary species contained in Part VI (Continental Shelf) may not be applicable to most of the organisms that inhabit the seabed and ocean floor beyond national jurisdiction, particularly micro-organisms.

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The best definition would be one that allowed the future regime to be applied to all the biological communities of the Area in relation to their exploitation but also to their conservation and sustainable use. It would have to duly take into account the characteristic of those biological communities, their habitat and their ecosystem, in order to provide an adequate and not restrictive approach.

6.4.ii. A comprehensive set of rules for marine scientific research and sustainable use of the biological organisms of the Area An important question which arises in relation to what is to be understood by “activities relating to biological organisms” is the one raised by marine scientific research. It must be clarified that marine scientific research relating to biological organisms of the Area falls within the legal regime established by Part XI and Part XIII. Some have, therefore, highlighted that there appears to be a legal lacuna in relation to commercially-oriented activities, such as bioprospecting279. UNCLOS does not provide a definition of either marine scientific research or of commercially-oriented activities”. “Bioprospecting” is a term that is presently used but which definition is not contained in UNCLOS either. States should, when negotiating a regime, take into consideration what is provided for in Article 251 of UNCLOS, according to which States shall seek to promote through competent international organizations the establishment of general criteria and guidelines to assist [them] in ascertaining the nature and implications of marine scientific research. This would be particularly important when negotiating the provisions on sustainable use that, in the case of biological organisms of the

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A Legal Regime for the Biodiversity of the Area

Area, it is very difficult to establish a difference between marine scientific research and commercially oriented activities280. The

Study

embodied

in

Document

UNEP/CBD/SBSTTA/8/INF/3/Rev.1 states that, in the absence of a formal definition, marine scientific research “could be defined as an activity that involves collection and analysis of information, data or samples aimed at increasing mankind’s knowledge of the environment, and is not undertaken with the intent of economic gain” and that “marine scientific research is characterized by openness, dissemination of data, exchange of samples, as well as publication and dissemination of research results as provided for in Part XIII”281. The only definition of “prospecting” existing in the law of the sea is contained in the Regulations on Prospecting and Exploration for Polymetallic Nodules282 adopted in 2001 by the International Seabed Authority (the “Mining Code”). The Mining Code defines prospecting as the search for deposits of polymetallic nodules in the international seabed Area, including estimation of the composition, sizes and distributions of polymetallic nodule deposits and their economic values, without any exclusive rights283. This definition applies only to mineral resources, in particular, to polymetallic nodules. Nevertheless, it could be transposed to other areas, like that of biological organisms. It is understood that “prospecting”, does not constitute marine scientific research and is considered that although it involves and investigative activity it is undertaken, inter alia, for the estimation of the economic value of a resource, prior to its future commercial exploitation284. Following such criterion, “bioprospecting” has been considered to be “the exploration of biodiversity for commercially valuable genetic and

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biochemical resources” or “the process of gathering information from the biosphere on the molecular composition of genetic resources for the development of new commercial products”285. It has been underlined that, due to the potential commercial value of collected samples and data, the results of bioprospecting activities may not be made freely available to the public. It must be taken into account that such activities may involve confidentiality and proprietary rights”286. Marine scientific research in the Area is ruled by Article 143 of the Convention. It shall be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole, and according to Part XIII. The International Seabed Authority may carry out marine scientific research concerning the Area and its resources and may enter into contracts for that purpose. The Authority shall promote and encourage the conduct of marine scientific research in the Area, and shall coordinate and disseminate the results of such research and analysis when available. The Authority, therefore, has a clear function attributed to it by the Convention as regards marine scientific research in the Area. Could it be considered that biodiversity is included in the provisions of Article 143? The answer must be affirmative, as notwithstanding the fact that the definition of “resources” of Article 133 (a) is limited to mineral resources, marine scientific research relating to biological organisms in the Area is, undoubtedly, “marine scientific research in the Area” in the terms of Article 143.1. The only issue not specifically addressed by the Convention is the exploitation of biodiversity in the Area. Nevertheless, we must point out one important characteristic of the investigative activities related to the biodiversity of the Area, constituted by the fact that the distinction between marine scientific research and investigative activities with a commercial purpose (or “bioprospecting”) is

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A Legal Regime for the Biodiversity of the Area

increasingly blurred. It is frequent that, although undertaken without any commercial “purpose”, scientific institutions pass the results of marine scientific research on to the biotechnological industry287, in order to obtain funding288. Many research institutions also engage with private companies in the development of new commercial products289. This

blurred

differentiation

between

scientific

research—

characterized by openness and transparency, with the ulterior dissemination of objectives, processes and outcomes therefrom—and investigative activities with the purpose of economic gain should be taken duly into consideration when drawing up a legal regime for access and exploitation of biological organisms of the Area. In fact, it is evident that the exploitation of such resources can take place not only through “bioprospecting” but also through marine scientific research. As scientific institutions pass the results of research to private companies

interested

in

the

development

of

new

industrial

or

pharmaceutical products, an activity which should be characterized by openness of the results could—although itself being undertaken without a commercial purpose—end up originating intellectual property rights over new products. This means not only that the availability of the results of marine scientific research will be limited by intellectual property rights290 but also—and directly relevant for this work—that an activity which starts as marine scientific research can very well lead to the economic exploitation of the biological organisms of the Area. In fact, up to date, marine scientific research is the main avenue for access to the biological organisms of the Area291. Consequently, the new regime should comprise both activities: marine scientific research and the exploitation of biological organisms of the Area, so as to ensure:

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a) that the benefits arising from any commercial development based on the biological organisms of the Area are shared with mankind as a whole, including the benefits arising from products or processes developed on the basis of resources obtained through scientific research, and b) that the results of marine scientific research are coordinated and disseminated by the Authority.

In drawing up such a regime, States should take into account that the outcome of the activity instead of its purpose should be the differentiating factor between marine scientific research and the exploitation of biological organisms of the Area. This would mean drawing up a comprehensive regime which regulates all the activities related to biological organisms of the Area, including marine scientific research as one activity that can lead to the commercial exploitation of the resources of the Area.

6.4.v. The conservation of the biodiversity of the Area Neither CBD nor UNCLOS establish a specific set of rules for the conservation of the biodiversity of the Area292. UNCLOS sets forth a general framework for the conservation of the marine environment (which includes biodiversity) in Part XII293, and CBD establishes only the general duty of States to cooperate in relation to biodiversity beyond national jurisdiction. Part XI of the Convention contains an important rule, Article 145, which gives the International Seabed Authority the faculty and the duty to adopt rules, regulations and procedures for the protection and preservation of the marine environment from harmful effects which may arise from the activities in the Area. This is the most specific rule applicable to biodiversity in the Area. Nevertheless, if the loss of biological diversity of the Area is to be prevented, together with rules for exploration and exploitation, the future

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A Legal Regime for the Biodiversity of the Area

regime should include specific rules for conservation. Those rules should expand the faculty of the Authority that arises from Article 145, in order to address the threats to biodiversity in the Area, including pollution of the seas, seabed mining, marine scientific research, bio-prospection and the take for exploitation of biological organisms. In this regard, States may want to consider whether an ecosystem approach (which would lead to the application of the conservation rules to biodiversity which is, technically, in the high seas) should be adopted. They should also consider the introduction of a mechanism for consultation between the ISA and the CBD as regards conservation. A future regime should benefit from the technical expertise of CBD on these matters, although the competent body for the adoption of rules and regulations should be the Authority.

6.4.iv. A competent international institution An element which is possible to transpose from the existing regime (Part XI) is the concept of authorization by an international institution (this question will be discussed below). Activities relating to the biological organisms of the Area should be open to all States without discrimination, but an international institution, which would act as the trustee of mankind as a whole, would have powers and functions in relation to all activities relating to biological organisms in the Area. Reasonably, such an institution would authorize, supervise and coordinate those activities and other uses of the Area. The new regime could create a whole new institution for the regulation of all the activities relating to biological organisms of the Area. Nevertheless, several factors would suggest the convenience of expanding the mandate of the Seabed Authority294:

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- the creation of a brand new international institution would result in activities in the Area being subject to two different institutions, while subjecting all the uses of the Area to the ISA would guarantee the necessary coordination in the various uses of the Area, in particular, taking into consideration that the habitat of biological organisms is inextricably linked to mineral resources of the Area, and - the International Seabed Authority’s functioning was the object of long and difficult preparatory work which took years; from a practical point of view, States should use the already existing and fully functioning international structure instead of creating a new piece of bureaucracy. An issue States would have to consider is whether it would be necessary to adapt the structure of the Seabed Authority to address the conservation and sustainable use of biodiversity in the Area, taking into account that the composition of its organs, in particular the Council, was determined having polymetallic nodules in mind. Attributing functions to the ISA in relation to biological organisms has been favored by some295, and could perfectly be done through an international instrument that established the legal regime for such organisms (see 6.5. below). As a condition to have access to the resources, the regime could require the agreement of the researcher to hand over the results of the research to the international organization competent for supervising the activities in the Area and to accept to be bound the regime for intellectual property rights, in case a commercial product was developed on the basis of the biological organisms of the Area.

6.4.v. Intellectual property rights The very nature of biological organisms of the deep seabed determines that the most effective way in which such resources can be

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A Legal Regime for the Biodiversity of the Area

exploited is through intellectual property rights. Unlike mineral resources, biological organisms are not necessarily taken in large quantities to isolate their compounds for sale. The main interest in these organisms is originated in their industrial and pharmaceutical applications. When an invention developed, it is protected by a patent. We have mentioned above the number of patents already obtained for inventions based on micro-organisms from the seabed and the significant potential for discovery of new organisms of the Area and for the development of industrial and pharmaceutical uses of those organisms. Any regime for the sustainable use of the biodiversity of the Area should incorporate the issue of intellectual property rights. Although this issue could also be considered in the wider context of the question of access to medicines derived from biological organisms of the Area in the ambit of the World Trade Organization Declaration on the TRIPS Agreement and Public Health296, we will concentrate on the question of the benefits derived from the exploitation of patents for such inventions (royalties). The inclusion of this kind of provisions would be the only reasonable way to provide for the equitable sharing of benefits of the resources that belong to mankind as a whole. Having examined the provisions of the TRIPS Agreement, a regime could be developed by the negotiators based on the provisions of that Agreement and fully consistent with them. Conceptually, patents grant the patent holder the right to impede that third parties exploit the patented product or process, and consumers do not have the choice of purchasing the patented product from other than the patent holder. The use of the patented product or process by third parties is allowed by the patent holder in exchange for the payment of royalties. When a patent is granted for a really innovative product, the result of a

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patent could be the creation of a monopolistic position. Therefore, the provisions on intellectual property rights of the future regime should be well balanced, so as to foster scientific research—due to the permanent need of new inventions—but at the same time to optimize social welfare, as mankind should not be left aside of the benefits arising from patents for inventions based on resources that are the common heritage297. One of the main issues of the future regime would have to address is establishing a clear distinction between “discovery” and “invention”. As explained supra, Arts. 27--28 of the TRIPS Agreement are to be interpreted in the sense that the obligation to provide for the patenting of microorganisms (Article 27.2.(b) of the TRIPS Agreement) is applicable only to the genetically modified microorganisms, not to microorganisms in their natural form. This would lead to the non-patentability of the living organisms—in their natural form—obtained from the Area. This is the only course of action coherent with the fact that it is humankind who “owns” such resources—as well as their genetic components—and that patents for a living organism existing in nature can very well restrict the use by humankind of such organism for scientific research. When, according to article 27 of the TRIPS Agreement, a product or process based on a living organism obtained from the Area was new, involved an inventive step and was capable of industrial application, then such an invention would be fully patentable. Patenting would proceed, in accordance with the TRIPS Agreement, through national procedures. Nevertheless, instead of national laws—which could not coincide (and often do not coincide)—there would be an international regime which would be incorporated into internal law as provided in national law and applied by national authorities.

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A Legal Regime for the Biodiversity of the Area

The international regime could provide a royalty system. In this regard, the regime would take into account the fact that marine scientific research in the Area could very well derive in the patenting of an invention. Therefore, to be authorized by the Authority to undertake any activity in the Area, including marine scientific research, the interested person or institution should sign a contract298 agreeing to the sharing of benefits derived from any patent for an invention based on an organism of the Area with the Authority. The provisions on the sharing of royalties with the Authority should take duly into consideration that any company that invests not only in investigative activities in the deep seabed but also in the development of products through biotechnology has to recover its costs and have a certain margin of profit. Without that profit, there would be no incentive for undertaking such activities and developing products that contribute to global health and development. One of the most difficult issues of the property rights provisions would be how to determine the origin of a biological resource on the basis of which an invention has been developed299. Disclosure of origin in patent applications is essential to ensure compliance with prior authorization by the Authority and to ensure fair and equitable benefit sharing through compliance of the obligation to share royalties. To this aim, not only should the contractor be subject to the obligation to declare the origin of the biological component of its invention, but the regime could also presume juris tantum that the place of origin is the Area for any marine biological organism in which an invention is based, unless the patent applicant unequivocally demonstrates otherwise. Only through such presumption would it be possible to enforce the obligation of sharing the benefits originated in a patent, as the contractor could carry out marine scientific

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research in other maritime areas and declare that a living organism originated in the Area comes from other parts of the ocean. When applying for a patent, the applicant should be required by its national authorities to provide verifiable information on the origin of the biological resource on which the product or process is based, proof of authorization by the Authority, and proof of having signed a contract with the Authority for the sharing of benefits. The breach of the obligation to share benefits with the Authority could allow the application of a remedy provided in the TRIPS Agreement: a compulsory license. A breach of the obligation to share benefits can originate not only in the non-compliance with the contract with the Authority but also by means of the deliberate submission of inaccurate information on the origin of the organism (i.e. declaring to the patent authorities that an organism on which a new product or process is based comes from another maritime area when it actually comes from the Area). A compulsory license is a State authorization to third parties to exploit a patent without the consent of the patent owner, working as exceptional measures taken under specific and extraordinary circumstances300. The purpose of compulsory licenses, provided for in Article 31 of the TRIPS Agreement, is to re-establish the equilibrium between private rights and the public interest301. The TRIPS Agreement does not determine the grounds upon which compulsory licenses may be granted302. Therefore, States could consider the introduction of compulsory licenses in the future instrument establishing the legal regime for biological organisms in the Area as a means to ensure the sharing of benefits arising from the exploitation of biodiversity of the Area. A future regime could provide, in this sense, that in case the contractor does not comply with the obligation assumed under contract with the Authority to share a percentage of the royalties obtained

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A Legal Regime for the Biodiversity of the Area

from a patent for an invention based on the resources of the Area, any of (or all) the States parties can grant a compulsory license. Such a regime would be carefully drawn up on the basis of Arts. 30-31 of the TRIPS Agreement. Could this sort of provisions be included in a regime applicable to the biological organisms of the Area?. States not only could but also should include this kind of provisions as they relate to the sharing of benefit originated in those resources. In addition to that, the regime would not intend to amend the TRIPS Agreement, as these provisions—although introducing some clarifications—would be consistent with it. Any regime with the elements described supra should reflect a careful balance between the need to ensure that contractors do not breach their obligations towards mankind—represented by the Authority—and the need to foster the progress of mankind through investigative activities and the development of new products and medicines. In this sense, the sharing of benefits (the percentage to be shared with the Authority) will be a central issue, as provisions that are equitable enough –“equitable” not only from the point of view of the international community but also from the perspective of a company that invests in investigative activities and in the development of new products- would contribute to preventing the adoption of a regime that imposed insurmountable burdens and fostered noncompliance.

6.5. The form of the international instrument embodying a new regime and the most viable way to negotiate it

A regime for the conservation and sustainable use of the biological organisms of the Area would entail the modification of the definition of “resources” embodied in Article 133 of UNCLOS and the adoption of a

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whole new regime based on the principles governing the Area. If States decide to negotiate such new regime, it should be enshrined in an international instrument of a mandatory character. Articles 312, 313 and 314 of UNCLOS provide formal procedures for the amendment of the Convention. Arts. 312-313 establish the convening of a conference and a simplified procedure for “specific amendments to this Convention, other than those relating to activities in the Area”. Nevertheless, experience shows that States could undertake a more viable course of action in order to agree on the legal regime for biological organisms of the Area. The 1994 Agreement not only clarified some provisions of UNCLOS, it also introduced amendments to it. Notwithstanding the fact that it introduced amendments to the Convention, the 1994 Agreement was negotiated as a separate instrument, but closely related to UNCLOS, as its purpose and object was the “implementation” of Part XI. Of course, it can also be argued that States opted for an instrument additional to the Convention instead of following the formal procedures established in the Convention because, according to its provisions, the Convention could be amended only after 10 years of its entry into force, and in July 1994 it had not even entered into force303. But beyond that discussion, it is undeniable that States Parties to UNCLOS have already followed a path that, for solving the issues of a specific Part of the Convention proved to be efficient and viable. A new agreement would have as its purpose and object the effective application of the common heritage of mankind principle to the biological organisms of the Area. Therefore, the negotiation of an implementation agreement would offer the advantage of concentrating the negotiating efforts on this issue.

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A Legal Regime for the Biodiversity of the Area

All Parties to UNCLOS and States and entities entitled to become Parties should be entitled to participate in the negotiation. So, what would be the appropriate forum for such a negotiation? The Meeting of States Parties to UNCLOS304 would be, in principle, the appropriate forum for considering issues relating to the implementation of the Convention. After all, all Parties—and observers— are represented at this Meeting. Nevertheless, although a fundamental principle enshrined in the Convention would serve as a basis, the issue involves the negotiation of a whole new regime. For that reason, a forum that ensures the maximum representation is essential. A negotiation in the context of the General Assembly, in this respect, would allow that States Parties as well as non Parties be represented.

7. CONCLUSION

The international community decided, as early as the 1960s, to subtract the seabed and ocean floor beyond the limits of national jurisdiction and their resources from the “first come – first serve” regime of the high seas. When the legal regime applicable to the Area was negotiated, the international community was unaware of the existence and potential of biodiversity in the Area, and the interest at the time concentrated on mineral resources, in particular, to polymetallic nodules. At present, it is known that the exploitation of biological organisms of the Area could be the most profitable and viable activity in the near future. The main economic interest in the biodiversity of the Area arises from the high potential of deep seabed organisms for exploitation through biotechnology, including the development of new industrial and pharmaceutical processes and products.

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The challenge that the biodiversity of the Area poses to the international community is the question of what regime should be applicable to the use of such resources. On the one hand, the definition of “resources” of the Area provided by UNCLOS is limited to mineral resources. The whole regime of Part XI of the Convention is designed, therefore, for those resources only. On the other hand, CBD, as regards biodiversity beyond national jurisdiction, does not provide for specific norms, but only for the duty for States Parties to apply the Convention to processes and activities and the general duty to cooperate in its conservation. In the absence of a specific set of rules, the present situation is one of a de facto unilateral exploitation on a “first come-first serve” basis. Many scientific institutions not only carry out scientific research in relation to those organisms, they are also collaborating with industry, which aims to develop new commercial products. Many inventions based on deep seabed organisms have already been patented under the laws of some countries. The international community, that once decided to subtract a whole area of the sea and its resources from the competition of States and exploitation by a handful of developed nations, must now decide whether to leave the biodiversity of the Area subject to unilateral exploitation by a group of countries or face the challenge of undertaking the negotiation of specific norms applicable to its exploitation and conservation. The mere fact that a Working Group was established by the General Assembly to consider the issue shows that there is consciousness about the need for a legal regime. Neither UNCLOS nor CBD provide specific rules, but they enshrine principles that could—and should—constitute the basis of a regime applicable to the biological organisms of the Area.

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A Legal Regime for the Biodiversity of the Area

In particular, UNCLOS defines the legal status not only of the resources of the Area, but also that of the Area itself. The common heritage of mankind principle is reflected in some particular principles that together give form to the status of the Area, and are the basis of the whole regime set forth by UNCLOS: use exclusively for peaceful purposes, nonappropriation, sharing of the benefits arising from the Area and its resources with mankind as a whole—in particular, developing countries—and an international institution to act as the trustee of mankind. Not only the exploitation of the Area and its resources must benefit mankind as a whole, but also marine scientific research in the Area must be carried out for the same purpose. UNCLOS adopted a zonal approach. The criterion according to which all uses—including the exploitation of resources—of a maritime area should be subject to the legal regime of that maritime area is inherent in the structure of the Convention. It is evidenced in all its Parts. The exploration and exploitation of the resources of the sea is regulated not on the basis of the nature of the resources or of their ecosystemic interaction but also on the basis on the criterion of geographical appurtenance. An interpretation of UNCLOS done in good faith would lead to the following conclusions: a) when negotiating UNCLOS, in particular when introducing the definition of “resources”, the belief of negotiators was that all the resources of the Area were subject to the legal regime they were drawing up; they did not have the intention to leave a particular use of the Area unregulated; b) a merely textual interpretation of Part XI, according to which the Area has the legal status of the common heritage of mankind and some of its resources follow that status while some others do not, is not reasonable in the light of the criterion according to which UNCLOS was structured; and

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c) it is not reasonable to conclude that while marine scientific research must be carried out for the benefit of mankind as a whole, the exploitation of biological organisms of the Area can be subject to unilateral exploitation on the basis of the “first come first serve” rule; The corollary of the above conclusions would lead to the more general conclusion that the principles governing the Area should be applicable to the biological organisms of the Area. In addition to the reasons which arise from the legal structure of the Convention, the inclusion of the biological organisms of the Area in the legal regime of Part XI is advisable also from a practical viewpoint. The ISA is an already existing intergovernmental organization, and it is fully functioning. Taking into account the long negotiations which resulted in its establishment,

the

use

of

this

structure—with

the

necessary

305

adjustments —would be more efficient than embarking on the negotiation of and the setting of a whole new institution, with a mandate that most surely would overlap with that of the ISA. Nevertheless, it is undeniable that the legal regime of Part XI is applicable only to mineral resources. The proposition of this work is that a new regime should be negotiated on the basis of the principles governing the Area. Taking into consideration the characteristics of the resources and their uses, such regime, enshrined in a multilateral instrument of a mandatory nature, should include the following elements: a) an amendment of the definition of “resources” of Article 133(a) in UNCLOS to include the biological organisms of the Area, and the introduction of a definition of “biological organisms of the Area” (or similar term), establishing the particular characteristics that would define the geographical appurtenance of these organisms in relation to the Area;

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A Legal Regime for the Biodiversity of the Area

b) a comprehensive regime for exploration and exploitation but that also includes marine scientific research, as this is the main avenue for access to the biological organisms of the Area; c) entrusting the International Seabed Authority with the additional necessary competences to act as the trustee of mankind in relation to the new regime for biological organisms, coordinating marine scientific research, and providing for the conservation of biodiversity; and d) provisions on intellectual property rights—which need not modify provisions of the TRIPS Agreement—as the patenting of inventions would be the most direct way to exploit inventions based on the organisms of the Area. These provisions should establish the non patentability of the living organisms in their natural form, the duty to share benefits arising from patents for products or processes based on living organisms of the Area, and could also establish a system of compulsory licences for breaches of the regime. An amendment of the Convention, as provided for in Article 314, would certainly not be the most viable course of action to agree on the new legal regime. Experience shows that it would be more viable to negotiate an agreement for the implementation of the principles governing the Area in relation to the biological organisms of the Area. The participation in the negotiations should be as universal as possible. Therefore, a negotiation under the auspices of the GA—rather than SPLOS—would be appropriate.

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Fernanda Millicay NOTES 1. Hereinafter “UNCLOS” or “the Convention”. 2. A. Pardo, ‘An opportunity lost’, in: Oxman, Caron, Buderi (eds). Law of the Sea. U.S. policy dilemma (San Francisco: ICS Press, 1983), p. 14. 3. P. Allot, ‘Mare Nostrum: a new international law of the sea’, 86 American Journal of International Law, 1992, 764. 4. See GAOR Twenty-second Session. First Committee, 1515th and 1516th meetings (1967). 5. Hereinafter “the 1994 Agreement” or “the Implementation Agreement”. 6. The 1994 Agreement raised some discussions on the possibility to amend the Convention prior to its entry into force. See R. Platzöder, ‘Substantive changes in a multilateral treaty before its entry into force: the case of the 1982 United Nations Convention on the Law of the Sea’, 4 European Journal of International Law, 1993, 390. 7. UNCLOS. Article 162.2 (o) (ii). 8. The Government of India, L’Institut Français de Recherche pour l’Exploitation de la Mer (IFREMER)/l’Association Française pour l’Etude et la Recherche de Nodules (AFERNOD) (France), Deep Ocean Resources Development Co., Ltd. (DORD) (Japan), YUZHMORGEOLOGIYA (Russian Federation), the China Ocean Mineral Resources Research and Development Association (COMRA) (People's Republic of China), the Interoceanmetal Joint Organization (IOM) (Republic of Bulgaria, Republic of Cuba, Czech Republic, Republic of Poland, Russian Federation and Slovak Republic), the Government of the Republic of Korea. For additional details see note 65 infra. 9. See Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea. Document ISA/8/A/5, para. 34. 10. Recommendations for the guidance of the contractors for the assessment of the possible environmental impacts arising from exploration for polymetallic nodules in the Area (ISA/7/LTC/1/Rev.1 – 10 July 2001). 11. L. Glowka, ‘The deepest of ironies: genetic resources, marine scientific research, and the Area’, 12 Ocean Yearbook, 1996, 154. 12. See Report of the Secretary-General of the International Seabed Authority under article 166 (ISA/10/A/3 – March 31 2004), para. 104 and S. Oda, ‘Some reflections on recent developments in the law of the sea’, 27 Yale Journal of International Law, 2002, 217. 13. E. Mann-Borgese, ‘Common heritage: From non-living to living resources and beyond’, in: Ando, Macwhinney, Wolfum (eds.), Liber amicorum Judge Shigeru Oda,Volume 2 (The Hague, London, New York: Kluwer Law International, 2002). 14. L. Glowka, Op. cit. note 11 supra, p. 155. 15. Article 145 (b). 16. ISA/7/LTC/1/Rev.1, 10 July 2002. 17. Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, adopted on 28 July 1994.

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A Legal Regime for the Biodiversity of the Area 18. ““Biological diversity” means “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems”; “biological resources” includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity”; “genetic resources” means genetic material of actual or potential value”; “sustainable use” means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations”. CBD, Article 2. 19. See J. Mero, ‘Mineral deposits in the Sea’, 1 Natural Resources Law, 1968, 130. 20. Cited by H. Amerasinghe, ‘The Third United Nations Conference on the Law of the Sea’, in: Nordquist, (Ed. in chief). United Nations Convention on the Law of the Sea 1982, A commentary, Volume I (Dordrecht, Boston, Lancaster: Martinus Nijhoff Publishers, 1985). 21. Cited by C. Armas Barea, ‘Patrimonio común de la humanidad: naturaleza jurídica, contenido normativo y prospectiva’, 10 Anuario IHLADI, 1993, 13. 22. A.G.de Lapradelle, ‘Le droit de l’Etat sur la mer territoriale’, V Revue Générale de Droit International Public, 1898, 264. 23. Report of the International Law Commission covering the work of its eighth session (1956), Section III The continental shelf. 24. 22 GAOR. Document A/6695. 25. Arvid Pardo’s intervention made reference to the seabed and ocean floor “beyond the limits of present national jurisdiction”. Note 4 supra, para. 3. 26. Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Ceylon, Chile, Czechoslovakia, Ecuador, El Salvador, France, Iceland, India, Italy, Japan, Kenya, Liberia, Libya, Malta, Norway, Pakistan, Peru, Poland, Romania, Senegal, Somalia, Thailand, Soviet Union, United Arab Republic, United Kingdom, Tanzania, United States and Yugoslavia. 27. First Session: New York, 18-27; Second session: New York, 17 June-9 July; Third session: Rio de Janeiro, 19-30 August. The Ad-Hoc Committee established two working groups: a Legal working group and a Technical working group. 28. Report of the Ad-Hoc Committee to study the peaceful uses of the seabed and the ocean floor beyond the limits of national jurisdiction. Document A/7230, para. 89. 29. GA Resolution 2574 A (XXIV). 30. GA Resolution 2575 D (XXIV). 31. See GA voting records. 32. Report of the Committee on the Peaceful uses of the Sea-Bed and the ocean floor beyond the limits of national jurisdiction. 24 GAOR Doc. A/7622 (Supp. No. 22), para. 93. 33. Idem note 32 supra. 34. GA Resolution 2749 (XXV), third preambular paragraph. 35. GA Resolution 2625 (XXV) of 24 October 1970.

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Fernanda Millicay 36. Resolution 2750 C (XXV), operative paragraph 2. 37. First United Nations Conference on the Law of the Sea 1058, Second United Nations Conference on the Law of the Sea 1960. 38. As a result of its enlargement, the Seabed Committee was composed as follows: Afghanistan, Algeria, Argentina, Australia, Austria, Belgium, Bolivia, Brazil, Bulgaria, Byelorussian Soviet Socialist Republic, Cameroon, Canada, Ceylon, Chile, Colombia, Congo (Democratic Republic of), Cyprus, Czechoslovakia, Denmark, Ecuador, El Salvador, Ethiopia, France, Gabon, Ghana, Greece, Guatemala, Guinea, Guyana, Hungary, Iceland, India, Indonesia, Iran, Iraq, Italy, Ivory Coast, Jamaica, Japan, Kenya, Kuwait, Lebanon, Liberia, Libyan Arab Republic, Madagascar, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco, Nepal, Netherlands, New Zealand, Nigeria, Norway, Pakistan, Panama, People’s Republic of the Congo, Peru, Philippines, Poland, Romania, Senegal, Sierra Leone, Singapore, Somalia, Spain, Sudan, Sweden, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, United Arab Republic, United Kingdom, United Republic of Tanzania, United States of America, Uruguay, Venezuela, Yemen and Yugoslavia. 39. The Seabed Committee met three times in 1971, twice in 1972 and twice in 1973. 40. Doc. A/8271. 27 GAOR, Supp. 21. This list enumerates the following issues: - the breadth of the territorial sea; - straits used for international navigation; - the continental shelf – its limits and the nature, need and scope of the sovereign rights of coastal States over the continental shelf as well as the duties of the coastal State in that regard; - the concept of an exclusive economic zone beyond the territorial sea, including the question of an exclusive fishing zone and preferential rights of coastal States; - the question of preferential and other non-exclusive jurisdiction of the coastal State over the resources beyond the territorial sea; - the freedom of the high seas; - the problems of special interest groups such as land-locked and shelflocked States, their access to the sea and to a legitimate share in the resources of the sea-bed and the ocean floor and the subsoil thereof, beyond the limits of national jurisdiction which the General Assembly had by resolution 2749-adopted at its Twenty-Fifth Session in 1970-declared to be the common heritage of mankind; - preservation of the marine environment including the prevention of marine pollution; - scientific research and the development and transfer of technology; and - the peaceful use of ocean space. 41. See M. Nordquist, (Ed. in chief). United Nations Convention on the Law of the Sea 1982, A commentary, Volume I (Drodrecht, Boston, Lancaster, Martinus Nijhoff Publishers, 1985). 42. First United Nations Conference on the Law of the Sea (1958). The outcome of the First Conference had been the adoption of four instruments: the Convention on

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A Legal Regime for the Biodiversity of the Area the Territorial Sea and the Contiguous Zone, the Convention on the Continental Shelf, the Convention on the High Seas, and the Convention on fishing and conservation of the living resources of the high seas. 43. C. Stavropoulos, ‘Procedural problems of the Third Conference on the Law of the Sea’, in: M. Nordquist, (Ed. in chief). United Nations Convention on the Law of the Sea 1982, A commentary, Volume I (Drodrecht, Boston, Lancaster: Martinus Nijhoff Publishers, 1985). 44. A/CONF.62/30/Rev.1. 45. A/CONF.62/29. The allocation of items was as follows: Items to be considered directly by the plenary: Item 22 Peaceful uses of the ocean space; zones of peace and security Item 25. Enhancing the universal participation of States in multilateral conventions relating to the law of the sea All Main Committees. Items to be dealt with by each Committee in do far as they are relevant to their mandates. Item 15. Regional arrangements Item 20. Responsibility and liability for damage resulting from the use of the marine environment Item 21. Settlement of disputes Item 22. Peaceful uses of the ocean space; zones of peace and security First Committee: Item 1. International regime for the sea-bed and ocean floor beyond national jurisdiction 1.1 Nature and characteristics 1.2 International machinery : structure, functions, powers 1.3 Economic implications 1.4 Equitable sharing of benefits bearing in mind the special interests and needs of developing countries whether coastal or land-locked 1.5 Definition and limits of the area 1.6 Use exclusively for peaceful purposes Item 23. Archaeological and historical treasures on the sea-bed and ocean floor beyond the limits of national jurisdiction Second Committee: Item 2. Territorial Sea Item 3. Contiguous Zone Item 4. Straits used for international navigation Item 5. Continental Shelf Item 6. Exclusive economic zone beyond the territorial sea Item 7. Coastal State preferential rights or other non-exclusive jurisdiction over resources beyond the territorial sea Item 8. High seas Item 9. Land-locked countries Item 10. Rights and interests of shelf-locked States and States with narrow shelves or short coastlines Item 11. Rights and interests of States with broad shelves Item 16. Archipelagos

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Fernanda Millicay Item 17.Enclosed and semi-enclosed areas Item 18. Artificial islands and installations Item 19. Regime of islands Item 24. Transmission from the high seas Third Committee: Item 12. Preservation of the marine environment Item 13. Scientific research Item 14. Development and transfer of technology. The chairman of the First Committee was Paul Bamela Engo of Cameroon, the chairman of the Second Committee was Andrés Aguilar from Venezuela, while Alexander Yankov of Bulgaria was the chairman of the Third Committee. 46. See J. R. Stevenson, B. H. Oxman, ‘The preparations for the Law of the Sea Conference’, 68 American Journal of International Law, 1974, 1. 47. The proposal for a new international economic order was put forth by the members of the Non Aligned Movement at the Algiers Summit of 1973. At the summit, they addressed the issue of deterioration in the economic conditions in the developing countries and stressed the need to enhance economic cooperation, and called for a revision of the global economic regime and the creation of a NIEO that would be more advantageous to the developing countries of the South. At the UN, it gave rise to UNGA Resolutions 3201 (S-VI) and 3202 (S-VI) which embodied, respectively, the Declaration and the Programme of Action on the New International Economic Order, and to the Charter of Economic Rights and Duties of States (UNGA Resolution 3281 (XXIX)). For further reading on the NIEO see A. Rozental, ‘The Charter of Economic Rights and Duties of States and the New International Economic Order’, 16 Virginia Journal of International Law, 309 (1975-1976); C. Ferguson, ‘The New International Economic Order’, University of Illinois Law Forum, 1980, 693; G.W.Haight, ‘The New International Economic Order and the Charter of Economic Rights and Duties of States’, 9 International Lawyer, 1975, 591; T. WÄLDE, ‘A requiem for the “New international economic order” – The rise and fall of paradigms in international economic law’, in: N. AlNauimi, R. Meese (eds) International legal issues arising under the United Nations decade of international law (The Hague: Kluwer Law International, 1995). For further reading on the NIEO and the Law of the Sea negotiations see E. Mannborgese, ‘The New International Economic Order and the Law of the Sea’, 14 San Diego Law Review, 1976-1977, 58; J.N. Moore, ‘Law of the Sea and the New International Economic Order’, 3 Pub. L. Forum, 1983-1984, 13; J. Gamble (Jr.) ‘The Third United Nations Conference on the Law of the Sea and the New International Economic Order’, 6 Loyola of Los Angeles International and Comparative Law Review, 1983, 65; R. Friedheim, ‘UNCLOS and the New International Economic Order; A.Vratusa, ‘Convention on the Law of the Sea in the light of the struggle for the New International Economic Order’, in: B.Vukas (ed.), Essays on the New Law of the Sea (Zagreb: University of Zagreb, 1985). 48. See M. Nordquist, (Ed. in chief). United Nations Convention on the Law of the Sea 1982, A commentary, Volume IV (Drodrecht, Boston, Lancaster: Martinus Nijhoff Publishers, 1991), p. 3.

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A Legal Regime for the Biodiversity of the Area 49. See J. R. Stevenson, B.H. Oxman, ‘The Third United Nations Conference on the Law of the Sea: the 1975 Geneva Session’, 69 American Journal of International Law, 1975, 763. 50. A/CONF.62/WP.8/ Parts I to III. 51. See R. P. Anand, Law of the Sea. Caracas and beyond, (The Hague, Boston: Martinus Nijhoff Publishers, 1980). 52. A/CONF.62/WP.8/Rev.1, Parts I to III. 53. The group was known as “the Collegium”. 54. A/CONF.62/WP.10 55. See Informal Composite Negotiating Text. Explanatory memorandum by the President. A/CONF.62/WP.10 Add.1. 56. See B. Zuleta, ‘Introduction to the United Nations Convention on the Law of the Sea’, in: M. Nordquist, (Ed. in chief). United Nations Convention on the Law of the Sea 1982, A commentary, Volume I (Drodrecht, Boston, Lancaster: Martinus Nijhoff Publishers, 1985. 57. HR 3350, 95th Cong. 2d. sess. (1978) July 26, 1978. 58. The Resolution was adopted by 75 votes in favour, 18 against with 13 abstentions. 59. See B.H. Oxman, ‘The Third United Nations Conference on the Law of the Sea: The Seventh Session (1978)’. 73 American Journal of International Law, 1979, 1. 60. Draft Convention on the Law of the Sea A/CONF.62/WP 10/Rev.3/Add.1. 61. See B.H. Oxman, ‘The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981)’, 76 American Journal of International Law, 1982, 1. 62. A/CONF.62/L.78. 63. For the provisions on signature by “entities” see Article 305 of UNCLOS. 64. Resolution I of the Third United Nations Conference on the Law of the Sea. 65. The Government of India, registered on 17 August 1987 (LOS/PCN/94 and LOS/PCN/94/Corr.1); L’Institut Français de Recherche pour l’Exploitation de la Mer (IFREMER)/l’Association Française pour l’Etude et la Recherche de Nodules (AFERNOD) (France), registered on 17 December 1987 (LOS/PCN/97); Deep Ocean Resources Development Co., Ltd. (DORD) (Japan), registered on 17 December 1987 (LOS/PCN/98); YUZHMORGEOLOGIYA (Russian Federation), registered on 17 December 1987 (LOS/PCN/99), the China Ocean Mineral Resources Research and Development Association (COMRA) (People's Republic of China), registered on 5 March 1991 (LOS/PCN/117 ); the Interoceanmetal Joint Organization (IOM) (Republic of Bulgaria, Republic of Cuba, Czech Republic, Republic of Poland, Russian Federation and Slovak Republic), registered on 21 August 1991 (LOS/PCN/122 ) ; the Government of the Republic of Korea, registered on 2 August 1994 (LOS/PCN/L.115/Rev.1 and Corr.1). See also Resolution II of the Third United Nations Conference on the Law of the Sea. 66. See R, Platzöder, Op. cit. note 6 supra. 67. See B.H. Oxman, ‘The 1994 Agreement and the Convention’, 88 American Journal of International Law, 1994, 687. 68. The possible approaches described in the Note were the following: (i) A contractual instrument such as a protocol amending the Convention;

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Fernanda Millicay (ii) An interpretative agreement consisting of understandings on the interpretation and application of the Convention; (iii) An interpretative agreement on the establishment of an initial Authority and an initial Enterprise during an interim regime accompanied by a procedural arrangement for the convening of a conference to establish the definitive regime for the commercial production of deep seabed minerals when such production became feasible; (iv) An agreement additional to the Convention providing for the transition between the initial phase and the definitive regime, in particular, the Authority would be mandated to develop solutions for issues still outstanding on the entry into force of the Convention. 69. The “boat paper” was so-called after a drawing of a boat on its cover page. 70. The information on the mineral resources of the Area was obtained from International Seabed Authority, United Nations Division for Ocean Affairs and the Law of the Sea, ‘Marine Mineral Resources. Scientific Advances and Economic Perspectives’ (2004) and International Seabed Authority Technical brochures on Polymetallic nodules, Polymetallic sulphides and Cobalt-rich crusts. 71. Contractors which have been assigned areas in the Pacific Ocean are COMRA (China), IFREMER/AFERNOD (France), DORD (Japan), YUZHMORGEOLOGIA (Russian Federation), INTEROCEANMETAL (Bulgaria, Cuba, Czech Republic, Poland, Russian Federation and Slovakia) and the Government of Korea. The Government of India was allocated an area in the Indian Ocean. 72. United States (Hawaii and Marshall Islands) and Micronesia. 73. See Report of the Secretary-General of the International Seabed Authority under Article 166, paragraph 4, of the United Nations Convention on the Law of the Sea. Document ISA/8/A/5, para. 34 and pages 43-44 infra. 74. At its 11th Session, the ISA decided to defer the consideration of the future regulations for cobalt-rich crusts and polymetallic sulphides. SB/11/16. 75. L. Glowka, Op. cit. note 11 supra, p. 157. 76. IUCN, WWF, ‘The status of natural resources of the high seas’, p. 15. 77. L. Glowka, ‘Bioprospecting, alien invasive species, and hydrothermal vents: three emerging legal issues in the conservation and sustainable use of biodiversity’, 13 Tulane Environmental Law Journal, 1999-2000, 329. 78. L. Glowka, Op. cit. note 11 supra, p. 156. 79. C. Allen, ‘Protecting the oceanic gardens of Eden: international law issues in deep-sea vent resource conservation and management’, 13 Georgetown International Environmental Law Review, 2001, 563. 80. P. Ré, ‘Deep-sea hydrothermal vents.’Oases of the abyss’’, in: J.P.Beurier, a. Kiss, S. Mahmoudi, New Technologies and law of the marine environment (The Hague, London, Boston: Kluwer Law International, 2000). 81. L. Glowka, ‘Putting marine scientific research on a sustainable footing at hydrothermal vents’, 27 Marine Policy, 2003, 303. See also IUCN,WWF, ‘The status of natural resources of the high seas’(Gland, Cambridge, 2001). 82. P. Rona, ‘Resources of the Sea Floor’, 31 Science, 2003, 673. 83. C. Allen, C. Op. cit. note 79 supra.

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A Legal Regime for the Biodiversity of the Area 84. The definition provided by the Convention on Biological Diversity is as follows: ““Biological diversity" means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems” (Article 2). 85. Report of the Secretary General on Oceans and the Law of the Sea 2004 (A/59/624 - March 2004) and Addendum (A/59/62/Add.1 - 18 August 2004). 86. L. Glowka, Op. cit. note 11 supra. 87. D. Leary, ‘Bioprospecting and the genetic resources of hydrothermal vents on the high seas: what is the existing legal position, where are we heading and what are our options?’, 1 Macquarie Journal of International and Comparative Environmental Law, 2004, 137. 88. P. Rona, Presentation to UNICPO 2004 (www.un.org/depts/los). 89. 80% to 90% of these species are endemic to hydrothermal vents and new to science. Leary, D. note 87 supra, p. 140. 90. S. Maloney, ‘Extremophiles. Bioprospecting for antimicrobials’, www.mediscover.net/extremophiles.cfm. 91. UNEP/CBD/SBSTTA/8/INF/3/Rev.1, p. 34, para. 3. 92. L. Glowka, Op. cit. note 11 supra, p. 159. 93. Term used to refer to “the technologies devoted to the practical use of living organisms and their genetic products” I. Mgbeoji, ‘(Under)mining the seabed? Between the International Seabed Authority Mining Code and sustainable bioprospecting of hydrothermal vent ecosystems in the Seabed Area: taking precaution seriously’, 18 Ocean Yearbook, 2004, 413. 94. D. Leary, Op. cit. note 87 supra. 95. See R. Colwell, ‘Fulfilling the promise of biotechnology, 20 Biotechnology Advances, 2002, 215. 96. L. Glowka, Op. cit. note 11 supra. 97.Convention on Biological Diversity. Article 2. 98. L. Glowka, Op. cit. note 11 supra. 99. UNU/IAS Report, ‘The international regime for bioprospecting. Existing policies and emerging issues for Antarctica’, 2003. 100. Enzymes are complex proteins. Industrial enzymes are used in a variety of industries as cost-effective and environmentally sensitive substitutes for chemical processing. UNEP/CBD/SBSTTA/2/15, para. 51. 101. S. Maloney, Op. cit. note 90 supra. 102. P. Rona, P. Op. Cit. note 82 supra. 103. D. Leary, Op. cit. note 87 supra; Businessweek 1 April 1996 ‘Extreme enzymes. Science is commercializing nature’s diehard proteins’. 104. Glowka, L. Op. cit. note 11 supra. 105. Businessweek cited in note 103 supra. 106. Mgbeoji, I. (Under) mining the Seabed?, p. 423. 107. Businessweek cited in 103 supra. 108. D. Leary, Op. cit. note 87 supra. 109. M. Gorina-Ysern, ‘Legal issues raised by the profitable biotechnology development through marine scientific research’, ASIL Insights, November 2003.

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Fernanda Millicay 110. Southampton Oceanography Centre, C. de Fontaubert, ‘The status of natural resources of the high-seas’ (Cambridge, Gland: WWF, IUCN, 2001). 111. Idem note 110 supra, p. 17. 112. See L. Glowka, ‘Genetic resources, marine scientific research and the international seabed area’, 8 Review of European Community and International Environmental Law, 1999, 56. 113. See S. Arico, C. Salpin, ‘Bioprospecting of genetic resources of the deep seabed: scientific, legal and policy aspects’ (Yokohama, UNU-IAS, 2005), pp. 1920. 114. De Fontaubert, C. Op. cit. note 110 supra, p. 17. 115. Op. cit. note 113 supra, p. 20. 116. Op. cit. note 113 supra, p. 20 117. Idem note 116 supra. 118. Idem note 116 supra. 119. Idem note 116 supra. 120. Idem note 116 supra. 121. Op. cit. note 110 supra, p. 21. 122. Idem note 121 supra. 123. Op. cit. note 110 supra, p. 20-21. 124. Op. cit. note 110 supra, p. 21. 125. See Report of the Secretary General. Oceans and the Law of the Sea. Addendum (Document A/59/62/Add.1), paras. 227--231. 126. L. Glowka, Op. cit. note 81 supra. 127. Idem note 125 supra, paras. 232--233. 128. L. Gowka, ‘Testing the waters: establishing the legal basis to conserve and sustainably use hydrothermal vents and their biological communities’, 8 InterRidge News, 1999, 45. 129. UNEP/CBD/SBSTTA/8/INF/3/Rev.1, paras. 4--5 . 130. P. Rona, Presentation to UNICPO 2004. 131. See S. Maxwell, ‘Medicines from the deep. The Importance of Protecting the High Seas from Bottom Trawling’. 132. See ‘Deep-sea trawling's 'great harm'’, BBC News, 6 October 2004. 133. UNCLOS, Preamble, first paragraph. 134. UNCLOS, Article 1.1(1). 135. UNCLOS, Article 1.1(3). 136. UNCLOS, Article 137. 137. UNCLOS, Article 156. 138. UNCLOS, Article 157. 139. UNCLOS, Article 137.2 and Article 153.1. 140. UNCLOS, Article 140. 141. UNCLOS, Article 140. 142. UNCLOS, Article 141. 143. The definition of “resources” embodied in Article 133(a) is given “for the purposes” of Part XI. 144. UNCLOS, Article 1.1(3).

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A Legal Regime for the Biodiversity of the Area 145. See S. Nandan, et al, United Nations Convention on the Law of the Sea 1982. A commentary, Volume VI (The Hague, London, New York: Martinus Nijhoff Publishers, 2002), pp. 71--72. 146. Document A/CONF.62/WP.8/Part I. 147. See Op. cit. note 145 supra, p. 73. 148. A/CONF/62/WP.8/Rev.1. 149. See Op. cit. note 145 supra, p. 75. 150. UNCLOS, Article 135. 151. The regime of the high seas is set forth is Part VII of UNCLOS. 152. The other two institutions are the International Tribunal for the Law of the Sea (Part XV and Annex VI) Commission on the Limits of the Continental Shelf (Annex II). 153. UNCLOS, Article 156.2. Of 148 Parties to the Convention, 22 States are still not Parties to the Agreement. These States had ratified UNCLOS before the adoption of the Agreement. See www.un.org/depts/los. 154. UNCLOS, Article 157.1. 155. UNCLOS, Article 157.2. 156. UNCLOS, Annex III, Article 21. 157. ISA/6/A/18. See in particular Clause 12.7 c) and Part V “Protection and preservation of the marine environment”. 158. ISA/7/LTC/1/Rev.1, 10 July 2002. 159. UNCLOS, Article 143. 160. UNCLOS, Article 149. 161. UNCLOS, Article 143. 162. Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea( ISA/8/A/5), para. 39. 163. See ‘Mining Code’, Article 1. 164. UNCLOS, Article 143.2. 165. Hereinafter “CBD” or “the Convention”. 166. CBD, Article 1. 167. CBD, Preamble, third paragraph. 168. The precautionary approach is defined by the Rio Declaration on Environment and Development of the The United Nations Conference on Environment and Development as follows: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (Principle 15). 169. CBD, Preamble, ninth and tenth paragraphs. 170. This rule, embodied in Article 4 (b) of CBD, can be seen as the equivalent of what in the ambit of the law of the sea is the jurisdiction of the flag State. 171. Op. cit. note 13 supra, p. 1328. 172. Bio-prospecting has been defined as “the process of gathering information from the biosphere on the molecular composition of genetic resources for the development of new commercial products”. UNEP/CBD/SBSTTA/2/15, para. 31.

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Fernanda Millicay 173. COP Decision II/10, para. 2. UNEP/CBD/COP2/19. 174. UNEP/CBD/SBSTTA/8/INF/3/Rev.1. 175. Idem note 174 supra, paras. 45, 103 and 111. 176. Idem note 174 supra, para. 114. In a footnote, it is also stated that maintaining the status quo also means implementing the regime for marine scientific research in the Area and the requirement that marine scientific research in the Area is carried out for the benefit of mankind as a whole 177. Idem note 174 supra, paras. 115-118. 178. Idem note 174 supra, paras. 124-126. 179. Idem note 174 supra, Note by the Executive Secretary. 180. See Earth Negotiations Bulletin. Summary of the Eighth Session of the SBSTTA 10-14 March 2003. 181. SBSTTA, Recommendation VIII/3 (March 2003). 182. ISA, Press Release SB/9/13 of 7 August 2003, page 2. 183. ‘Report of the Secretary General of the International Seabed Authority under Article 166, paragraph 4, of the United Nations Convention on the Law of the Sea’ (ISBA/8/A/5) and ‘Report of the Secretary General of the International Seabed Authority under Article 166, paragraph 4, of the United Nations Convention on the Law of the Sea 2004’ (ISBA/10/A/3). 184. See Statement of the observer of the ISA at the 57th session of the UNGA (A/57/PV.74). 185. See SB/10/7. 186. See T. Scovazzi, ‘Some considerations on future directions for the International Seabed Authority’, Paper presented at the Special Session of the Assembly to mark the Tenth Anniversary of the Establishment of the International Seabed Authority. Kingston, Jamaica, 25-26 May 2004. 187. F. Armas Pfirter, ‘The management of seabed living resources in “the Area” under UNCLOS’. Study presented to ISA on May 27, 2004. 188. SPLOS/6 paras. 43-46. 189. A/51/645, para. 231. 190. A/RES/57/141, para. 56. 191. In the Addendum to its annual Report, the SG clarified that the legal concept of “beyond national jurisdiction” includes: the water column beyond the EEZ, or beyond the territorial sea where no EEZ has been declared, termed “the high seas” and the seabed beyond the continental shelf, designated “the Area” (A/59/62/Add.1., para. 165). 192. A/RES/58/240, para. 52. 193. GA Resolution 58/240, para. 68. 194. For the Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its fifth meeting see document A/59/122. See also Earth Negotiations Bulletin, Vol. 24, Nos. 7, 10 and 12. 195. A/59/62/Add.1. 196. A/59/PV.54, A/59/PV.55, A/59/PV.56. 197. A/RES/59/24, para. 73.

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A Legal Regime for the Biodiversity of the Area 198. S. Maxwell, ‘Medicines from the deep. The importance of protecting the high seas from bottom trawling’, Natural Resources Defense Council. Issue paper: March 2005. 199. Article 267 of UNCLOS “Protection of legitimate interests” provides that “States, in promoting cooperation pursuant to article 266, shall have due regard for all legitimate interests including, inter alia, the rights and duties of holders, suppliers and recipients of marine technology. 200. Paris Convention for the Protection of Industrial Property, Article 1(2). 201. A. Ayuso. Paper presented in the International Seminar “The resources of the seabed and subsoil”. Buenos Aires, 15/17 May 2006. 202. TRIPS Agreement, Article 1. 203. Although States shall protect inventions according to the provisions of TIPS, they may, but shall not be obliged to, implement in their law more extensive protection than is required by TRIPS, provided that such protection does not contravene the provisions of the Agreement. They shall also be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice (TRIPS, Article 1.1.). 204. F. González Perini, ‘Patents vs. Trade? The issue of patent rights exhaustion’, 30 Legal Issues of Economic Integration, 2003, 133. 205. See C. Correa, Intellectual property rights, the WTO and developing countries. The TRIPS Agreement and Policy Options, (Penang, Third World Network, 2000), pp. 67-68. 206. See C. Correa, ‘Sovereign and property rights over plant genetic resources’, Background Study Paper No. 2, FAO Commission on Plant Genetic Resources, First Extraordinary Session (Rome, 7-11 November 1994), and S. Safrin, ‘Hyperownership in a time of biotechnological promise: the international conflict to control the building blocks of life’, 98 American Journal of International Law, 2004, 641. 207. US Patent and Trademark Office. 208. S. Safin, Op. cit. note 206 supra. 209. Cullet, P. Property rights regimes over biological resources, p. 3. 210. IP/C/W/368, pp. 5--6. 211. Op. cit. note 205 supra. 212. Each year the UNGA emphasizes “the universal and unified character of the Convention” and reaffirms “that the Convention sets out the legal framework within which all activities in the oceans and seas must be carried out and is of strategic importance as the basis for national, regional and global action in the marine sector, and that its integrity needs to be maintained, as recognized also by the United Nations Conference on Environment and Development in chapter 17 of Agenda 21” (UNGA Resolution 56/12 of 13 December 2001). 213. See Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea (ISA/8/A/5 - 7 June 2002), para. 51 and Op. cit. note 145 supra, p. 76. 214. See Y. Tanaka, ‘Zonal and integrated management approaches to ocean governance: reflections on a dual approach in international law of the sea’, 19 International Journal of Marine and Coastal Law, 2004, 483, and D. Anton, ‘Law

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Fernanda Millicay for the Sea’s Biological Diversity’, 36 Columbia Journal of Transnational Law, 1998, 341. 215. Article 1. 216. See S. Oda, ‘Fisheries under the United Nations Convention on the Law of the Sea’, 77 American Journal of International Law, 1983, 739. 217. Op. cit. note 11 supra. 218. Sedentary species are defined by UNCLOS as “organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil” (Article 77.4). 219. Report of the International Law Commission 1953, para. 70. 220. See F. Armas Pfirter, F., ‘The management of seabed living resources in “the Area” under UNCLOS’, Study presented to the Tenth Session of the Legal and Technical Commission of the Seabed Authority (Kingston, May 2004). 221. Idem Note 220 supra. 222. See Op. cit. note 145 supra. 223. UNCLOS, Article 134. 224. A legal principle is a staring point for legal reasoning. See C. Christol, C. ‘The common heritage of mankind provision in the 1979 Agreement governing the activities of States on the Moon and other Celestial Bodies’, 14 International Lawyer, 1980, 429. 225. For further reading on the evolution of the principle of the CHM in space law see J. Fawcett, ‘The concepts of outer space and the deep seabed in International Law: some comparisons’, Notre Dame International & Comparative Law Journal, 1984, 71; N. Vajic, ‘The Law of outer space and the law of the sea: a joint contribution to the emergence of the common heritage of mankind concept, in B. Vukas, (ed) Essays on the New Law of the Sea (Zagreb: University of Zagreb, 1985); B. Cheng, ‘United Nations Resolutions on Outer Space: “instant” international customary law?’, 5 Indian Journal of International Law, 1965, 23. 226. See UNGA Resolutions 1348 (XXIII), 1472 (XIV), 1721 (XVI), 1802 (XVII), 1962 (XVIII), 2130 (XX), 2221 (XXI), 2453 (XXIII), 2779 (XXVI) and 2915 (XXVII). See also The Convention on international liability for damage caused by Space Objects (1971) and the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (1967). 227. Article 11 of the Treaty states that “[t]he moon and its natural resources are the common heritage of mankind”. 228. The expression “in situ” contained in Article 133(a) of UNCLOS (“"resources" means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”) is used to reflect the criterion of geographical appurtenance. Such expression in the present paragraph cannot be read as to imply that biodiversity is included in the definition of Article 133(a), as it is used here only to emphasize the geographical appurtenance of the biodiversity “of” the Area. 229. See S. Sucharitkul, ‘The intertemporal character of international law regarding the ocean’, in: N. Ando, E. Macwhinney, R. Wolfrum, Liber amicorum Judge

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A Legal Regime for the Biodiversity of the Area Shigeru Oda, Volume 2 (The Hague, London, New York: Kluwer Law International, 2002) and S. Nandan et al Op. cit. note 145 supra, p. 99. 230. The term CHM is translated into Spanish as “patrimonio común de la humanidad” and into French as “patrimoine commun de l’humanité”. 231. See R.P. Anand, ‘Common heritage of mankind: mutilation of an ideal’, 37 Indian Journal of International Law, 1997, 1. 232. See S. Gorove, ‘The concept of “common heritage of mankind”: a political, moral or legal innovation?’, 9 San Diego Law Review, 1971-1972, 390 and A. Kiss, ‘The common heritage of mankind, utopia or reality?’, in: H. Caminos (ed) Law of the Sea, (Sydney: Ashgate, 2001). 233. Op. cit. note 223 supra. 234. A. Kiss, ‘La notion de patrimoine commun de l´humanité’, 175 Recueil des Cours de l’Academie de Droit International, 1982, 99. 235. See Report of the Committee on the Peaceful uses of the Sea-Bed and the Ocean Floor beyond the limits of national jurisdiction. 24 GAOR (1969), Supplement No. 22 (A/7622). 236. See Report of the Committee on the Peaceful uses of the Sea-Bed and the Ocean Floor beyond the limits of national jurisdiction. 24 GAOR (1969), Supplement No. 22 (A/7622), para. 21. The discussions at the Committee on the Peaceful Uses of Outer Space (COPUOS) reflect similar concepts. 237. Op. cit. note 145 supra, p. 99. 238. See Report of the Committee on the Peaceful Uses of the Seabed and Ocean Floor beyond the limits of national jurisdiction (1969). 239. Article 137 paras. 1--3. 240. Article 137 para. 2 and Article 153 para. 1. 241. Article 136. 242. Article 157 para. 1. 243. Article 140 paras. 1 and 2, and Article 150.j). 244. Article 141. 245. B. Cheng, cited by B. Larschan et al. ‘The common heritage of mankind principle in international law’, 21 Columbia Journal of Transnational Law, 19821983, 305. 246. C. Joyner, ‘Legal implications of the concept of the common heritage of mankind’, 35 International and Comparative Law Quarterly, 1986, 190. 247. S. Gorove, Op. cit. note 232 supra. 248. UNCLOS, Article 137.2. 249. MC.W. Pinto, ‘“Common heritage of mankind”: from metaphor to myth, and the consequences of constructive ambiguity’, in: J. Makarczyk (ed), Theory of international law at the threshold of the 21st Century. Essays in honour of Krzysztof Skubiszewski (The Hague: Kluwer Law International, 1996). 250. R.J. Dupuy, ‘La notion de “patrimoine commun de l’humanité”appliquée aux fonds marins’, in : D. Carreau et al., Droit et Libertés à la fin du XXe siècle, Études ofertes à Claude-Albert Colliard (Paris: Editions A Pedone, 1984). 251. See Statement by the Chairman of the Seabed Committee, UN Doc. AC/C, 1/PV. 1673 (31 October 1969), pp. 18-20. 252. See Briggs, G. Deep seabed mining and unilateral legislation, p. 237-245.

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Fernanda Millicay 253. ‘Summary of the provisions of the Draft proposed by the United Status for a ‘UN Convention on the International Seabed Area’’, 65 American Journal of International Law, 1971, 180. 254. E. Jiménez de Aréchaga, ‘International law in the past third of a century’, Recueil des Cours de l’Académie de Droit International, 1978 I, 1. 255. K. Baslar, The concept of the common heritage of mankind in international law (The Hague, Boston, London: Martinus Nijhoff Publishers, 1998), p. 209. 256. N. Vajic, Op. cit. note 225 supra. 257. J. Van Dyke, et al.,‘“Common heritage” v. “Freedom of the high seas”: which governs the seabed?’, 19 San Diego Law Review, 1981-1982, 493. 258. See C. Joyner, ‘UN General Assembly resolutions and international law rethinking the contemporary dynamics of norm-creation’, 11 California Western International Law Journal, 1981, 445. 259. UN General Assembly Resolution 2625 (XXV), 24 October 1970. 260. Op. cit note 233 supra. 261. S.P. Jagota, ‘The seabed outside the limits of national jurisdiction’, in: M. Bedjaoui (Gen.ed.) International Law: achievements and prospects, (Dordrecht, Boston, London, Paris: Martinus Nijhoff Publishers– UNESCO, 1991). 262. M. Nordquist et al., United Nations Convention on the Law of the Sea. A commentary, Volume V (Dordrecht, Boston, London: Martinus Nijhoff Publishers, 1989), p. 241. 263. See A/CONF.62/L.53 (1980). 264. UNCLOS, Article 133 (a). 265. Emphasis added. 266. UNCLOS, Preamble. 267. Idem note 266 supra. 268. See M. Ris, ‘Treaty interpretation and ICJ recourse to travaux préparatoires: towards a proponed amendment of articles 31 and 32 of the Viena Convention on the Law of Treaties’, 14 Boston College International & Comparative Law Review, 1991, 111. 269. See G. Schwarzenberger, ‘Myths and realities of treaty interpretation. Articles 27-29 of the Vienna Convention on the Law of Treaties’, 9 Virginia Journal of International Law, 1968-1969, 1. 270. See A.D.Mc Nair, The Law of Treaties (Oxford, Oxford University Press, 1961), p. 365 and Schwarzenberger, Op. cit. note 269 supra. 271. Preparatory work includes “materials” which document the negotiations and other circumstances that culminated in the formal conclusion of a treaty”. See M. Ris, Op. cit. note 268 supra. 272. See Third United Nations Conference on the Law of the Sea Official Records and also J.P. Lévy, ‘L’ordre international et le development des fonds marins’, LXXV Revue Générale de Droit International Public, 1971, 356; P. Saffo, ‘The common heritage of mankind: has the General Assembly created a law to govern seabed mining?’, 53 Tulane Law Review, 1978-1979, 492; J. Mero, ‘Mineral Deposits in the Sea’, 1 Natural Resources Law, 1968, 130; J. Mero, The Mineral Resources of the Sea (Amsterdam, London, New York: Elsevier Publishing Company, 1965); B. Shingleton, ‘UNCLOS III and the struggle for law: the elusive

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A Legal Regime for the Biodiversity of the Area customary law of seabed mining’, 13 Ocean Development and International Law, 1983, 33. 273. UNCLOS, Preamble, first paragraph. 274. See UNCLOS, Arts. 137, 139, 140, 141, 144, 148, 153.1, 156, 157. 275. The question of the use exclusively for peaceful purposes was originally introduced in the Declaration of Principles due to the fear of the use of the Area for the armamentist race. According to the Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation and sustainable use of genetic resources on the deep seabed this principle, which aims at preventing both armed conflict and the placement of weapons on the deep seabed, it “is not relevant to the sustainable use of genetic resources, except to ensure that they are not destroyed by military activities” (UNEP/CBD/SBSTTA/8/INF/3/Rev.1, para. 119). Nevertheless, we consider that the principle, is still relevant in the context of the possible use of seabed organisms for biological warfare. 276. See Op. cit. note 13 supra. 277. UNCLOS, Article 134.1. 278. UNCLOS, Part XI, Section 2. 279.UNEP/CBD/SBSTTA/8/INF/3/Rev.1 . 280. Idem note 279 supra and L. Glowka, Op. cit. note 112 supra. 281. Idem note 279 supra, para. 47. 282. ISA/6/A/18, annex. 283. Rule 1 (3) (e) 284. Idem note 278, page 13. 285. UNEP/CBD/COP/5/INF/7, para.6. 286. Idem note 279 supra, para. 49. 287. L. Glowka, Op. cit. note 112 supra. 288. See L. Glowka, Op. cit. note 11 supra and F. Korn et al., ‘Deep sea genetic resources in the context of the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea’, BfN Skripten 79 (Bon, Federal Agency for Nature Conservation, 2003). . 289. UNEP/CBD/SBSTTA/2/15, para. 40, and Leary, D. Op. cit. note 88 supra, p. 143. 290. See Article 241 of UNCLOS and M. Gorina-Ysern, ‘Marine scientific research activities as the legal basis for intellectual property claims?, 22 Marine Policy, 1998, 337. 291. Op. cit. note 11 supra. 292. Op. cit. note 213 supra. 293. Although the general regime is set forth in Part XII, there are several other provisions relating to the protection and preservation of the marine environment throughout the text of UNCLOS. 294. Op. cit. note 13 supra. 295. See Op. cit. note 186 supra. 296. See Declaration on the TRIPS Agreement and Public Health WT/MIN(01)/DEC/2 20 November 2001. 297. See IP/C/W/368, p. 7 and also F. González Perini, Op cit. note 204 supra.

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Fernanda Millicay 298. This also is a transposition of the regime for polymetallic nodules. 299. WTO. The relationship between the TRIPS Agreement and the Convention on Biological Diversity. Document IP/C/W/368. 300. Op. cit. note 204 supra. 301. Op. cit. note 204 supra. 302. Op. cit. note 204 supra. 303. As regards this issue, see R. Platzöder, Op. cit. note 6 supra. 304. See UNCLOS, Article 319.1.e). 305. See considerations on the structure of ISA below.

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