Can we protect high seas. international law? Lessons from the Sargasso Sea. David Freestone

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1 Can we protect high seas ecosystems under current international law? Lessons from the Sargasso Sea Project David Freestone International Conference on the Protection of the Environment and the Future of the Law of the Sea Law Faculty, University of Porto November 15-17, 2012

2 Outline Basic legal regime for environment protection envisaged in 1982 Convention for Areas beyond national jurisdiction (ABNJ) But implementation regime has not materialised. Limitations of the current ABNJ governance regime Is it possible to protect Areas in ABNJ within the current system? Existing MPAs in ABNJ Case study of Sargasso Sea

3 Marine Areas Beyond National Jurisdiction Nearly 50% of Planet s surface Increasing human impact on Areas beyond National Jurisdiction Increased intensity i of existing i activities iii New activities BUT no comprehensive governance framework kfor Areas beyond National Jurisdiction International Seabed Authority has jurisdiction ONLY over non living resources in ABNJ

4 200 nm limits/continental margins

5 Environmental Protection re ABNJ Art 87: Seven Freedoms of the Seas conditional Navigation; Over flight; lay Submarine Cables/Pipelines; Construct Artificial Islands/Installations; Fishing; and Scientific Research Article 192 Protect and preserve the marine environment unconditional Article 194 : protect and preserve rare or fragile ecosystems as well as habitat of depleted, threatened or endangered species and other forms of marine life.

6 Environmental Protection re ABNJ Art 204 : States shall keep under surveillance the effects of any activities which they permit or in which they engage in order to determine whether these activities are likely to pollute the marine environment. Art 205 : States shall publish reports or provide such reports to the competent international organizations,,[ to be ] available to all States. Art 206 :When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments.

7 Environmental Protection re ABNJ Art 197 States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating lb international ti rules, standards and recommended practices and procedures consistent it t with this Convention, for the protection and preservation of the marine environment, taking into account characteristic ti regional features. Is this an obligation on international organizations to cooperate to this end?

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9 Weaknesses of current governance in ABNJ frontier in worst sense Poor implementation Uncoordinated rule- making Weak enforcement provisions Many unregulated activities Geographic gaps

10 Environmental processes: Human impacts are increasing More than 40% of oceans already strongly affected, Halpern et al., 2008

11 Non Tuna RFMOs Geographical gaps: 2012

12 Regional Seas Agreements Only cover areas within national jurisdiction, other than: Northeast Atlantic Mdit Mediterranean South Pacific high seas donut holes, and Southern Ocean

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14 MEDITERRANEAN Pelagos Sanctuary

15 MEDITERRANEAN

16 NORTH EAST ATLANTIC OSPAR: developing ecologically coherent network of MPAs by 2010, including high seas 2007: Charlie Gibbs site endorsed in principle as MPA, 6 other sites identified 2008: Memorandum of understanding signed bt between NEAFC and OSPAR Credit: Sabine Christiansen, WWF

17 SOUTHERN OCEAN Credit: UK Foreign and Commonwealth Offic

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20 Bermuda EEZ = 450,370 sq km or 173,891 sq. miles Sargasso Sea = ~ sq km or 2 million sq. miles

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23 Unique open ocean ocean sargassum based ecosystem. Mostly High Seas Important for life history of many species (eels, turtles, tuna, billfish, sharks, etc.)

24 >145 invertebrate species live in association with Sargassum

25 Nursery/Feeding area: eggs/juveniles of >80 fish species occur in Sargassum

26 Threatened, endangered and declining species

27 Midwater and Benthic Fauna

28 Global Connections Catches of yellow and silver eels in EC

29 An ecosystem under pressure

30 Threats Fishing and its adverse impacts Garbage and plastics Pollution, discharges, spills Underwater noise Sargassum harvesting Exotic species introduction from ballast waters Climate change and ocean acidification Deep sea Mining? Underwater cables?

31 Sea Mount Fisheries

32 Plastic Waste

33 Regional g Marine Traffic Patterns

34 A New Threat... extraction?

35 Existing Protective Measures US Management Plan (2002) Designated sargassum as essential fish habitat (EFH) (S. Atlantic FMC) Restricts harvest of Sargassum in US waters (FL-NC) (5,000 lbs per year) ICCAT Resolution (2005) Report activities that may impact Sargassum Assessment of ecological status of Sargassum

36 Sargasso Sea Alliance Sylvia Earle USFWS

37 Aims of the Sargasso Sea Alliance Led by the Government of Bermuda to build a network of finternational ti partners to Achieve international recognition of the global importance of the Sargasso Sea Work with existing international ti and sectoral organisations to achieve better protection for the Sargasso Sea in accordance with the Law of the Sea Convention Use this experience as a model for achieving i protective status for Areas beyond National Jurisdiction elsewhere

38 Pragmatic Strategy Use Existing Competent International Sectoral Organisations to put protection measures in place Shipping i threats t through h IMO Fishing threats/sargassum extraction through fisheries bodies ICCAT and NAFO; Seabed Mining threats through ISA World Heritage Convention UNESCO Maybe CMS and other wildlife conventions Convene Political Meeting of key States in Bermuda Hamilton Declaration on Conservation of the Sargasso Sea

39 Robust Science Case Edited by Professors Howard Roe and Dan Laffoley 74 collaborators from over 10 countries and 11 science institutions Completed December 2011

40 CBD : First Success February2012 Recife CBD Caribbean Scientific workshop agreed to recommend that the Sargasso Sea be described as an EBSA April 2012 reviewed by CBD SBSTTA Added d to CBD Repository by CBD COP in October Map of the Sargasso Sea EBSA,

41 North west Atlantic Fisheries Organization

42 North west Atlantic Fisheries Organization Sea Mount closures already in place

43 International Commission for Conservation of Atlantic Tunas ICCAT

44 International Maritime Organisation g UK will not support a PSSA designation But will support Protective Measures: Possibilities are: Routeing R t i Reporting Ballast B ll Water W Sewage

45 2013 Hamilton Declaration on the Conservation of the Sargasso Sea A framework for informal co operation among States which border or have an interest in the ecological importance of the Sargasso Sea (eg Range states) Legal Working Group has developed a text Being tested with a few expert groups Envisage informal cooperation Establishment of a Sargasso Sea Commission in Bermuda Dec 2012 Technical Consultations New York March 2013 Formal Inter Ministerial Meeting to approve Declaration

46 Invitees for Hamilton Meeting States UK ; Turks and Caicos; BVI Canada US; USVI; Puerto Rico Bahamas Dominican Republic Ti Trinidad id d and Tobago Barbados Norway Sweden Germany The Netherlands France Portugal Azores Spain South Africa Organizations IMO International Maritime Organization (London) ICCAT International Convention on the Conservation of Atlantic Tunas (Madrid) NAFO Northwest Atlantic Fisheries Organization (Canada) ISA International Seabed Authority (Jamaica) OSPAR (London) CARICOM Caribbean Community (Guyana) European Union Commission i (Brussels) CBD Convention on Biological Diversity (Montreal, Canada) Caribbean Environment Programme (Jamaica)

47 Lessons Learned Not easy Limited number of Competent Authorities Little Co ordination between Competent Authorities: cf Art 197 Many of Same State Actors but Treaty Requirements are different for protection measures and criteria PSSA; Special Areas; Fishery closed areas; VME; Areas of Environmental Interest Different concerns and epistemic communities CBD EBSAs have potential to be of overarching CBD EBSAs have potential to be of overarching significance but already arousing hostility

48 Obrigado