1 Introduction^*

Strung in a receding line between Central America and Cape Horn, the four States of Colombia, Ecuador, Peru and Chile are all defined by their striking coastal geography, as well as their relationship with the ocean and its bountiful resources in the Southeast Pacific. They also constitute the four members of the Permanent Commission for the South Pacific, commonly known by its Spanish acronym cpps, which stands for the ‘Comisión Permanente del Pacífico Sur’.¹ The latter is a venerable intergovernmental organisation that traces its roots back to the genesis of modern international law of the sea and to the unilateral practice of Latin American States in extending their maritime jurisdiction and sovereignty over living and non-living natural resources in sea areas adjacent to their coasts pursuant to the Santiago Declaration of 1952.² Since its establishment, cpps embodies a distinctive regional alliance for the coordination of the national maritime policies of its members, all of which are developing States, especially in relation to the sustainable use of offshore resources and the protection of the marine environment of the Southeast Pacific.

In view of its unique role, this Chapter explores a number of themes through the lens of cpps, including: the shared regional vision of sustainable economic development of offshore resources for the benefit of impoverished coastal communities; the willingness of Governments to undertake high-stakes international diplomacy and to coordinate regional state practice in pursuing their national interests by means of the progressive development of the law of the sea; as well as the practical aspects and difficulties encountered in coordinating regional policies in maritime affairs over the past seven decades and more. In this discussion, particular emphasis is placed on regional efforts to protect biodiversity on the basis of the ecosystem approach. As addressed elsewhere in the specialist literature, the latter is an essential normative tool that can be applied in managing human activities that impinge upon the conservation status of marine living resources.³ As such, its practical application as an environmental concept remains poorly understood, principally in relation to how it impacts upon the navigational entitlements and maritime security interests of third States in sea areas within and beyond national jurisdiction.⁴

With the foregoing in mind, the Chapter opens by describing the abundance of deep-ocean biodiversity in the Southeast Pacific and the anthropogenic pressures it faces today. We then outline the birth and progressive evolution of modern law of the sea from a Latin American perspective.⁵ This is followed by a review of the legal mandate of cpps and the practical aspects of its working relationships with other intergovernmental bodies including those concerned with the management of fisheries and seabed mining, two of the gravest environmental challenges faced by humanity worldwide. Thereafter we turn to the development of the bbnj Agreement from the perspective of the cpps member States. The Chapter concludes by outlining some lessons that may be derived from State practice and the regional approach to the conservation of biodiversity in areas within and beyond national jurisdiction and how these can be applied to shape the design of new high seas governance arrangements for the Costa Rica Dome (crd) in the Central Tropical Pacific.

Before delving into the analysis, it ought to be recalled that Panama and Costa Rica are the two closest Central American States to the Southeast Pacific. Moreover, the four States of Panama, Ecuador, Colombia and Costa Rica have established the Eastern Tropical Pacific Marine Corridor (cmar) initiative to connect a series of mpas in their respective maritime zones with each other.⁶ By virtue of geography, their shared history in law of the sea matters, along with their common interests in safeguarding the marine environment, Costa Rica and Panama are thus inalienably linked to their sister States to the south in the search for viable solutions to the conservation and sustainable use of high seas biodiversity. In order to further understand these issues and to explore the intricate geopolitical and legal relationships that have shaped the distinctive regional approach to ocean matters for well over half a century, we first provide a brief glimpse of the offshore geography, the extraordinary marine biodiversity of the Southeast Pacific, as well as some of the unsustainable activities that are impacting on its conservation.

2 Remarkable Biodiversity and Unsustainable Activities

The Pacific Ocean occupies an entire hemisphere. Moreover, the Eastern Pacific Ocean has been described as ‘one of the last bastions of what ocean biodiversity would look like in a pristine world’, constituting a ‘living laboratory for scientific research’ on life in the ocean.⁷ From a law of the sea perspective, there is no universally accepted geographical definition of the Southeast Pacific. For the purpose of this Chapter, the region is therefore understood to extend from Central America to Cape Horn on the southern tip of Chile, taking in the maritime zones of Colombia, Ecuador, Peru and Chile, and includes the high seas westwards of those countries.⁸ Among its biogeographic features, it counts the oceanic archipelagos of the Galápagos Islands belonging to Ecuador with their world renowned ecosystems, as well as Juan Fernández and Easter Islands under Chile’s sovereignty and jurisdiction. The maritime boundaries of coastal States in the Southeast Pacific are demarcated by parallels of latitude, some of which have been the subject of dispute resolution proceedings in international courts and tribunals, including most notably a longstanding dispute between Peru and Chile concerning their eez limits.⁹ The seabed geomorphology consists of a relatively narrow band of continental shelf running the length of South America dropping steeply to the Atacama Trench, which forms a natural barrier along with the Humboldt Current dividing marine ecosystems in the deep ocean from their coastal equivalents. There are several fracture zones due to seabed spreading, as well as a chain of distinctive and complex underwater geological elevations, which extend laterally out into the Pacific and include seamounts, plateaux, caps, rises, banks, spurs and ridges. Rising from the depths of the ocean floor, the biodiversity and marine ecosystems associated with Gómez and Nazca ridges warrant special protection measures in their own right under the law of the sea.¹⁰

In designing appropriate biodiversity conservation schemes for the region, further regulatory complexity arises from the environmental processes at play in the Eastern Pacific Ocean, with El Niño and La Niña events in particular influencing the winds, thermoclines and the temperatures of the warm water Peruvian and cold-water Humboldt currents. The prevailing conditions have a major bearing on the ecological functioning and ambulatory nature of marine ecosystems. There are high levels of species endemism at specific seafloor features including hydrothermal vents sites.¹¹ In addition, the region is characterised by important migration routes and feeding grounds for cetaceans, pinnipeds, marine reptiles, tunas, sharks and rays, and seabirds.¹² Five of the seven sea turtle species are found in the Southeast Pacific with some estimates suggesting that many migratory species remain in the region between 45% and 75% of the year.¹³ That said, major scientific knowledge gaps exist on the extent and distribution of marine species in the tropical, subtropical and temperate marine ecosystems, partly because the South Pacific is less studied and sampled by marine scientists than other ocean regions.¹⁴ As a result, many species and marine ecological interactions remain unknown to science. Accordingly, one can anticipate that the regulatory priorities for conservation measures may well change in the fullness of time, especially as new scientific information comes to hand about the impacts of anthropogenic activities on the loss of marine species and habitats.¹⁵

A case in point relates to the impacts of fisheries on biodiversity. In this regard, the South Pacific is the third most productive region in the world for commercial sea fisheries and aquaculture according to the fao.¹⁶ Indeed, the importance of fisheries and the abundance of marine life was highlighted during the course of the aforementioned maritime boundary dispute settlement proceedings between Peru and Chile, with the International Court of Justice noting that 18 to 20 per cent of the world’s fish catch comes from the Large Marine Ecosystem associated with the Humboldt Current.¹⁷ In the northern part of the region, tuna and shrimp fisheries are particularly important for Colombia and Ecuador. There are significant anchovy fisheries in Peru’s eez, as well as in northern and central marine areas under the jurisdiction of Chile, with artisanal demersal fisheries to the fore farther to the south. Due to the widespread and catastrophic impacts on biodiversity, fisheries in general need to be managed very carefully to ensure the conservation of marine living resources and to safeguard marine ecosystems. In particular, the activities of iuu vessels pose a calamitous threat to critically endangered species such as hammerhead sharks, who breed in the vicinity of Darwin Island.¹⁸ These iconic species are protected under the Convention on International Trade on Endangered Species (cites) and the Convention on Migratory Species (cms) but continue to be targeted illegally for their valuable fins.¹⁹ Rigorous enforcement of these instruments is thus required to safeguard their conservation status.²⁰

The productive nature of the marine living resources is also borne out by the trade data on the export of fishery products comprising primarily shrimp, tuna, salmon and fishmeal from Ecuador, Chile and Peru.²¹ Fishery productivity is linked to the strong biological interconnectivity between coastal State waters and abnj of the Southeast Pacific, especially for highly migratory species including skipjack (Katsuwonus pelamis), bigeye (Thunnus obesus), and yellowfin tuna (Thunnus albacares).²² Subject to seasonal variation, intensive fishing activities tend to concentrate in areas associated with the upwelling systems of the Pacific and in the vicinity of the extensive range of seamounts, the most important of which are the Nazca ridge and the Sala y Gómez seamounts, seaward of the Exclusive Economic Zones of Ecuador, Peru and Chile.²³ Together, both ranges are estimated to makeup over half the number of seamounts of the Southeast Pacific.²⁴ The absence of appropriate regulation and rigorous oversight schemes poses a major risk to the fragile ecology of the latter features and their dependent ecosystems. This risk extends to the activities of the long-distance fleets of China, Japan, South Korea and Taiwan.²⁵ Farther to the north towards the Central Tropical Pacific, a similar conservation threat arises from the activities of large industrial vessels from Southeast Asia fishing in high seas areas to the east of the Galápagos Islands and outside of the jurisdiction of Costa Rica, Panama, Colombia, Ecuador and Peru.

The risks posed by the various fishing fleets are compounded by the absence of data on the wider environmental impacts of fishing on biodiversity.²⁶ What is more, the risks and impacts are further exacerbated by the myriad sources of marine pollution in the region including by the terrestrial mining industries, aquaculture, coastal development, urbanisation, invasive species, debris accumulating at or near the South Pacific Ocean Gyre,²⁷ as well the catastrophic consequences of the climate emergency.²⁸ The evidence of the latter is nothing short of unsettling, primarily because the South Pacific is warming above the global average and the circulation systems are also experiencing changes, which will impact on the abundance and distribution of fish stocks across the region.²⁹ This also jeopardises the delicate balance of marine ecosystems and is already contributing to the existential crisis faced by many coastal communities in Latin America, where there are few alternatives to employment other than in the fisheries and aquaculture sectors. Furthermore, changes in the Humboldt Current System are influencing different countries in different ways, especially in relation to the upwelling off Chile and the decrease of a similar phenomenon off the coast of Peru.³⁰ Ominously, marine heatwaves are forecast to become ‘more frequent and pronounced in the future’.³¹ This will bring its own set of environmental and management challenges concerning the survivability and the future functioning of marine ecosystems in the Southeast Pacific.

On the positive side, it is heartening to note that major scientific efforts are underway in the region to understand the consequence of these phenomena and to study the health and resilience of the ocean. Apart from satellite remote sensing and ocean observation tools, the results of ship-based technical field work are helping to shine a rare chink of light on the extraordinary abundance of marine biodiversity and the dynamic nature of regional ecosystems. Notable examples include the research cruises undertaken in the Nazca-Desventuradas Marine Park by Ecuador in 2015 and by Chile in 2016.³² These surveys revealed high levels of marine endemism in the biodiversity associated with the Sala y Gómez and Nazca Ridges.³³ The latter features constitute an ecologically or biologically significant marine area (ebsa) under the Convention on Biodiversity. Their scientific importance and vulnerability to anthropogenic impacts is further highlighted by the Global Ocean Biodiversity Initiative, the Global Census of Marine Life on Seamounts, as well as their designation by Mission Blue as a Hope Spot. Despite these impressive endorsements of scientific merit and ecological fragility, spatial specific protection measures are yet to be adopted for areas beyond national jurisdiction, a major shortcoming that is most critical in relation to the ebsa of the Salas y Gómez and Nazca ridges.³⁴ This regulatory failure may be contrasted with the considerable progress that has been made by coastal States to protect areas within national jurisdiction. Notably in this regard, Chile has undertaken extensive mpa designations including the establishment of no take zones in areas within national jurisdiction in the vicinity of Rapa Nui, Salas y Gómez, the Desventuradas Islands, as well as the Juan Fernández Archipelago.³⁵ In addition, all seamounts located within the Chilean waters are protected to some degree from bottom trawling.³⁶ Furthermore, Peru has also demonstrated strong leadership on marine conservation issues by prohibiting extractive activities below the 600 metre isobath in the areas designated as the Nazca Ridge National Reserve.³⁷

Taken together, these measures amount to a modest start to marine ecosystems conservation but much remains to be done.³⁸ The scale of the latter challenge should not be underestimated as Latin American States face many other pronounced difficulties in the economic and social spheres, including the severe impacts of the covid-19 pandemic, with a 2021 UN Report recording that Latin America and the Caribbean had close to one third of total deaths globally with less than 8 per cent of the world’s population.³⁹ The human scale of this tragedy thus provides a stark backdrop to regional efforts to improve ocean governance and to safeguard marine biodiversity within and beyond national jurisdiction.⁴⁰ In charting a way forward on these issues, one has to take into consideration the vanguard and in many ways the catalytic contributions made by Latin American States to the development of modern law of the sea over the past seventy years and more, a matter to which we now turn.

3 Regional Approaches to Marine Biodiversity: Legal Genesis and Geopolitical Context

At many levels, the legal genesis and geopolitical context for conserving marine biodiversity in areas beyond national jurisdiction can be traced back to the interests and practices of States bordering the Southeast Pacific since the late 1940s.⁴¹ From that time forward, they are very much associated with a positivist approach to international law, as evidenced by State practice and its influence on customary and treaty law, principally in relation to the rolling out of maritime limits, the articulation and implementation of new concepts such as the eez, the vexed question of how best to regulate high seas fisheries under international law, as well as the development of the legal regime that applies to the International Seabed Area.⁴²

Right up to the 1940s, it may be recalled that apart from the narrow band of coastal waters constituting the territorial sea, the ocean in its entirety was high seas and therefore subject to freedom of fishing and other unrestricted uses conducted in conformity with international law as it then was. After World War Two, however, State practice in the Southeast Pacific was influenced greatly by the Truman Proclamation on the Continental Shelf of the United States, as well as the maritime claims of Mexico and Argentina.⁴³ Specifically, Argentina claimed an extensive area of sea lying above the continental shelf, the so-called epicontinental sea, as territorial sea in 1946. The following year, Peru and Chile laid claim to 200-mile zones, with El Salvador following suit in 1950. Similar claims were made by Costa Rica without disregard to the lawful rights of other States, based on reciprocity, in the Central East Pacific and the Caribbean Sea.

The most significant milestone on this journey and its emphasis on what States do in practice was the signature of the Declaration of Santiago on the Maritime Zone by Chile, Ecuador and Peru in 1952.⁴⁴ The extension of exclusive sovereignty and jurisdiction over marine resources out to 200 miles was for ‘the purposes of the conservation, development and exploitation of these resources, to which the coastal countries are entitled’.⁴⁵ Although it was clearly the outcome of an intergovernmental political process, the Santiago Declaration had the elevated legal status of an international treaty and was negotiated and agreed at the Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific and the Regulation of Maritime Hunting Operations in the Waters of the South Pacific, held in Santiago in August 1952.⁴⁶ The same conference also adopted the Joint Declaration concerning Fishing Problems in the South Pacific, as well as the constituent instrument of a new regional body, namely: the Agreement relating to the Organization of the Permanent Commission of the Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific. Following on from this, six other instruments were adopted in Lima in December 1954 and in Quito in May 1967. Interestingly, the Government of Costa Rica subscribed to the Protocol of Adherence to the Santiago Declaration in 1955 but the President of the country subsequently vetoed a domestic bill to ratify the instrument in 1966.⁴⁷

All of these initiatives placed considerable emphasis on the biological unity and ecological resilience of the ocean. At that particular time, there were major geopolitical and marine resource considerations at play within the region, especially in relation to the exploitation by foreign vessels of the rich tuna, anchovy and cetacean resources in the Southeast and Central Pacific. At a geo-political level, the three signatory States to the 1952 Santiago Declaration were also pursuing a vision of peace, solidarity and cooperation on matters of common interest in their respective maritime zones. An overriding political imperative was the need to address the deplorable poverty of the region, as well as the special needs of coastal communities. In tackling these issues through the rolling out of their extensive maritime claims, Chile, Peru and Ecuador sought first and foremost to bring the living resources of the Large Marine Ecosystems of the Peruvian and Humboldt Currents within national control. Furthermore, although they lacked the technical, scientific and industrial capability to exploit offshore resources at national and regional levels, they were steadfast in their joint commitment to counteract the hegemony and resource exploitation by foreign vessels from distant industrialised nations including those from the United States and Japan, as well as the activities of the Onassis whaling fleet in the coastal waters of Peru.⁴⁸

Significantly, from the perspective of this discussion, it is germane to note that the signatory States to the Santiago Declaration were acutely aware and concerned about the fragile ecological balance of marine ecosystems, as evidenced by the various démarche tabled by their diplomatic representatives at the United Nations and other intergovernmental bodies. In 1956, for instance, a senior Chilean diplomat informed the Sixth (Legal) Committee of the United Nations General Assembly that the joint action of the parties to the Santiago Declaration in extending their maritime zones was triggered by the need to protect all ‘the marine flora and fauna living in the Humboldt Current, as all the various species depended on one another for their existence and have constituted a biological unit which had to be preserved’.⁴⁹ This ecological nexus was also reflected in the Santiago Declaration itself, which explicitly acknowledged the ’geological and biological factors, which determine the existence, conservation and development of marine fauna and flora in the waters along the coasts’ of the signatory States.⁵⁰ Crucially, parties to the Santiago Declaration agreed to coordinate further on the regulation of fishing and the exploitation of natural resources of common interest within their respective maritime zones.⁵¹

When viewed with the benefit of hindsight, it is evident that there were many compelling geographical, economic, environmental, social, cultural and indeed philosophical arguments underpinning the Santiago Declaration. Although these arguments have stood the test of time and remain tenable today, the legal basis for extending maritime limits out to a distance of 200 miles from the coast at the time was inherently weak in the absence of lex lata and can thus be characterised as de lege ferenda.⁵² Importantly in that regard, the 1952 Santiago Declaration contributed to the subsequent development of the concept of eez under unclos, along with its rapid acceptance as part of customary international law.⁵³ Furthermore, the conservation of living resources of abnj and the biological unity of the ocean continued to inform the positions of Latin American States at the three law of the sea codification conferences in 1958 (unclos i), 1960 (unclos ii) and again at unclos iii between 1973 and 1982.⁵⁴

One can make several further observations about state practice in the Southeast Pacific and its contribution to the development of the law of the sea including its influence on the practice of Latin American states right up to the present day in the broader context of the bbnj Agreement.

The first point relates to an avant-garde commitment to a regional treaty and the advancement of community interests in high stakes international diplomacy and state practice. More pedantically, from the viewpoint of the New Haven School of jurisprudence and public policy, it is also evident that the Santiago Declaration advanced a regional coordinated approach to bringing about changes to the public order of the ocean around the values of equity, development, conservation, and human dignity.⁵⁵ At that particular time, Latin American States were effectively disenfranchised by the status quo in the international legal order as it applied to the ocean. Their extravagant claims to extended maritime jurisdiction were based upon the importance of the ocean as a source of food and the need of the coastal States to feed their dependent and growing populations. The underlying precept of community interests was thus tied to regional state practice. According to this analysis, the Santiago Declaration can be characterised as one of the first regional initiatives to shape the international law of the sea by developing States in the Global South more generally. The commitment to regionalism was perhaps best typified by the establishment of the cpps, tasked with an express mandate to coordinate regional interests in maritime matters. The signatory States reached out to sister States farther to the north including Costa Rica and Panama to work with cpps. Indeed, the Declaration of Santo Domingo sought to muster 28 countries in Latin America and the Caribbean to adopt a common approach to marine resource exploitation, pollution and marine scientific research.⁵⁶ Colombia acceded to the cpps in 1979, thereby increasing and strengthening the scope of the regional alliance.⁵⁷

The second aspect was the manner in which regionalism influenced multilateralism and the negotiation of the so-called Constitution of the Oceans at the UN in the 1970s and early 1980s. In this context, although the Montevideo Conference on the Law of the Sea 1970 was largely unsuccessful in mobilising regional interests, it paved the way for the successful Lima Conference in the same year, and the subsequent coordinated approach adopted by 16 Latin American States participating and shaping the outcomes of the Third Law of the Sea Conference (unclos iii). At that particular time, there was a flurry of regional diplomatic initiatives in Latin and Central America concerning the development of the law of the sea including: the Montevideo Declaration on the Law of the Sea in 1970; the Lima Declaration of Latin American States on the Law of the Sea of 1970; the Declaration of Santo Domingo of 1972; and the Resolution of the Inter-American Juridical Committee of 1973. The President of the final sessions of unclos iii, H.E. Tommy Koh, writing with H.E. Jayakumar, has since noted that ‘the Latin American Group was the most united and effective in coming to homogenous positions on law of the issues’ at unclos iii.⁵⁸ Of course, this was greatly facilitated by their joint regional interests in expanding coastal State jurisdiction over the high seas and the conservation of the resources and marine ecosystems therein.

The third striking characteristic of State practice is the manner in which economic and ecological values continued to inform the regional approach to the management of high seas fisheries resources and their associated biodiversity right up to the present day. These values are of course linked with the construct of patrimony and the special interests of Latin American States in modern law of the sea,⁵⁹ as well as the advancement of the aggregate of their claimed offshore entitlements to meet future needs. In a maritime legal context, the concept and term Mar Presencial was devised in 1970 to describe an ocean area that falls under the influence of coastal States in the Southeast Pacific. Subsequently, the concept was enshrined in the Santo Domingo Declaration of 1972 and informed the diplomatic positions adopted by Latin American States participating in the Seabed Committee negotiations at the United Nations in 1973.⁶⁰ To a large degree, the economic resources and related environmental interests of coastal States were subsumed and reflected in the Exclusive Economic Zone and the continental shelf provisions of unclos.

In the early 1990s, however, the concept of Mar Presencial resurfaced yet again in national legislation and regional diplomatic positions adopted by Latin American States prior to the Fish Stocks Conference in 1995. Most notably, Chile sought its application to the management of straddling and highly migratory fish stocks on the high seas in the Southeast Pacific.⁶¹ Marine ecosystem considerations were once more put forward to justify and prioritise the special economic interests of coastal States over high seas living resources in areas adjacent to their eezs, the right to control marine scientific research, as well as the right to take unilateral measures to advance their national interests in the absence of effective international management mechanisms.⁶² Remarkably, as can be seen in Figure 5.1, Chile claimed that Mar Presencial applied over the high seas of the Southeast Pacific from its eez limits out to a median at the edge of continental shelf of Easter Island, and from the Arica Parallel to the South Pole. The socio-biological unity of the ocean, the need to manage environmental connectivity and offshore resources on the basis of the ecosystem approach, and the sharing of high seas resources on an equitable basis with developing countries, were all considerations that pervaded the writings of Vicuña and other Latin American scholars.⁶³ They sought to influence the outcomes of the 1995 Fish Stock Conference and to advance the concept as a precept to resolve many of the intractable issues concerning the international regulation of high seas fisheries. There was, however, considerable international resistance to the unilateral claims of Chile in light of its fundamental incompatibility with both the letter and spirit of unclos. At all levels, Mar Presencial marked a radical departure from customary and treaty law as it applied to the ocean. Subsequently, its practical application never came to fruition and was rendered nugatory by the 1995 Straddling Fish Stocks Agreement, as well as the orderly functioning of the regional fisheries management bodies in the South and East Pacific.

View Full Size

Chile mar patrimonial (Mar Presencial)

source: liga maritime de chile, 2014

• Download Figure
• Download figure as PowerPoint slide

That said, the legal arguments pertaining to the principle of interdependence and the unity that coexists between offshore living resources and the needs of coastal populations have not gone away entirely and resurfaces periodically in regional statements and practices on law of the sea matters.⁶⁴ For instance, at a meeting celebrating the Sixtieth Anniversary of the Santiago Declaration in 2012, in the “Commitment of Galápagos for the xxi Century” cpps member States affirmed the need to take into account the ecosystem approach and the precautionary principle in the protection of sea areas under their national sovereignty and jurisdiction, as well as a guide to their actions beyond those areas, including the Pacific Basin.⁶⁵ As will be seen below, the ecosystem approach and the needs of coastal populations were raised vociferously by Latin American States and other negotiating blocks representing the Global South at the bbnj intergovernmental conference 2018–2022.⁶⁶

This brings the discussion to the penultimate point, which relates to State practice and the ongoing search for sustainability solutions to conserve biodiversity in the Southeast Pacific both within and beyond national jurisdiction. Today, only two cpps member States are party to unclos and its two implementation agreements, namely Chile and Ecuador. Inauspiciously, Peru and Colombia remain non-parties, despite the latter having signed the Convention on the 10 December 1982. Similarly, neither Peru or Colombia are party to the 1994 Part xi Implementation Agreement or the 1995 Fish Stocks Agreement.⁶⁷ In addition, major law of the sea difficulties persist in relation to excessive maritime claims in the region. Specifically, Peru asserts a claim to a 200-mile territorial sea under its Constitution, where free rights of international communication are preserved but where it exercises maritime dominion over the seabed, water column and suprajacent airspace.⁶⁸ This claim has been protested by the United States, the United Kingdom and Germany and is entirely incompatible with international law.⁶⁹ The continental shelf claims of Ecuador and Chile have also been protested by the United States as incompatible with Article 76 of unclos, including those in the vicinity of Easter Island and the Salas y Gómez ridges.⁷⁰ Both States have submissions pending with the Commission on the Limits of the Continental Shelf at the time of writing but these remain undetermined.⁷¹

Finally, it is relatively easy to see that the balance struck by unclos between high seas freedoms and coastal State entitlements remains relatively precarious in the Southeast Pacific. Viewed in this light, the negotiation of a new treaty for the conservation of biodiversity of areas beyond national jurisdiction appears to provide a once in a generation opportunity to address the longstanding Latin American concerns about safeguarding the biological unity of the ocean. If it does, the Agreement may well help to consign the concept of Mar Presencial to the pedantic realm of legal history. Perhaps one of the levers to doing so and to moving forward on some of the most pressing issues concerning the conservation of high seas biodiversity relates to the institutional mechanism for the coordination of maritime policies within and beyond the region, which we will explore next.

4 Venerable Maritime Regional Organization

The Permanent Commission for the South Pacific was established within the broader framework of the Santiago Declaration on the 18 August 1952 and tasked with coordinating the maritime polices of its three founding members including their efforts to halt illegal fishing and whaling in the region.⁷² More recently, Chile, Ecuador and Peru affirmed its legal identity as an intergovernmental body under international law by ratifying the 1978 Convention on the international legal personality of the Permanent Commission of the South Pacific.⁷³ Vitally, the latter provided a legal basis for the appointment of a Secretary-General, who is the legal representative of the body and is responsible for discharging its day-to-day functions. As mentioned previously, membership grew when Colombia joined in 1979. In addition, there have been longstanding overtures to Panama to become a full member in view of its longstanding affiliation with the work of cpps and as a party to the Southeast Pacific Action Plan.

In recent years, the role of cpps has become considerably more arduous and now entails coordinating regional maritime policies pertaining to marine resource exploitation, conservation measures, environmental protection, and facilitating various aspects of marine scientific research.⁷⁴ For geopolitical reasons, its functions have always been limited to the softer dimensions of coordination and the provision of advisory services, thereby forming an important nexus between its four permanent members, who categorise it as a Maritime Regional Organization in its legal relations with themselves and other international and intergovernmental bodies.⁷⁵ By international standards, the institutional structure to discharge this mandate is relatively slim and consists of an Assembly, an Executive Committee, the national sections, as well an array of working groups. Decisions are taken on the basis of consensus and the work of the organisation is supported by a Secretariat with a headquarters in Guayaquil (Ecuador).⁷⁶ The annual budget of the organisation is very modest and in the order of usd 688.000.⁷⁷ Almost tiny to run an international organisation with serious intergovernmental responsibilities.

Since its foundation, cpps and its member States have sought to advance the conservation and sustainable use of marine living resources, an objective that went to the very heart of multiple regional declarations including the Cali Declaration,⁷⁸ the Declaration of Viña del Mar,⁷⁹ the Declaration of Quito,⁸⁰ the Declaration of Lima,⁸¹ the Declaration of Bogota,⁸² and the Declaration of Santiago.⁸³ For much of its institutional life, the bulk of the work undertaken by cpps has been focused on coordinating issues concerning areas within member state sovereignty and jurisdiction, including their islands in the Pacific. However, the discussion below pays special attention to various initiatives under its auspices pertaining to the conservation of biodiversity of areas beyond national jurisdiction. In large measure, this role stems from the broadening of its functions in 1981 when it became the Executive Secretariat of the Southeast Pacific Regional Seas Programme under the Convention on the Protection of the Marine and Coastal Areas of the Southeast Pacific (Lima Convention). Thereafter, it assumed specific responsibilities in relation to its associated Plan of Action for the Protection of the Marine Environment and Coastal Areas of the Southeast Pacific.⁸⁴ Although the Regional Seas Programme applies to the eezs of Chile, Peru, Ecuador, Colombia and Panama, the ambit of the Lima Convention is nonetheless considerably more expansive in that it aims to prevent, reduce and control pollution of the marine environment; enhance cooperation in emergency situations; promote joint programmes for monitoring pollution in the Southeast Pacific area, within and beyond national jurisdiction; and strives to advance scientific and technological cooperation between its members.⁸⁵ The geographical scope of the Lima Convention thus covers the maritime zones of contracting parties, as well as abnj up to a distance within which pollution of the high seas may affect that area.⁸⁶ Moreover, as a consequence of Panama’s membership of the Southeast Pacific Action Plan, the geographical footprint of cpps extends northwards as far as Central America.⁸⁷ Although Costa Rica is not party to the Lima Convention, it nonetheless has a longstanding history of working with cpps member states on matters of common concern. In implementing the Action Plan, cpss also works very closely with unep and over twenty other agencies, programmes and the Secretariats of international treaties.

Several environmental protection and pollution related protocols supplement the Lima Convention and provide the framework for the adoption of conservation measures.⁸⁸ One of the most important is the 1989 Protocol for the Conservation and Administration of the Marine and Coastal Protected Areas of the Southeast Pacific.⁸⁹ This instrument aims to protect and preserve ecosystems that are fragile, vulnerable or have unique natural value, as well as where the flora and fauna are threatened by depletion and extinction.⁹⁰ The protocol applies to the eezs of contracting parties, as well as the entire continental shelf where it extends beyond the 200 nautical mile limits. Importantly, it provides a legal basis for the establishment of protected areas in the form of parks, reserves, flora and fauna sanctuaries. In relation to such areas, the focus is on providing a framework for sustainable development. To this end, it sets down requirements concerning the adoption of integrated management plans, environmental impact assessment, the prohibition of any activity liable to have adverse effects on the ecosystem or the fauna and flora of such areas, as well as the establishment of buffer zones around mpas for management and enforcement purposes.⁹¹

With a view to fostering enhanced regional cooperation on maritime matters, cpps member States have adopted a Strategic Action Plan for the organisation of its work around specific action lines, namely: strengthening competitiveness for sustainable development; implementing the ecosystem approach; strengthening of knowledge of the ocean and atmosphere interactions; and consolidating regional strengths and knowledge.⁹² Furthermore, the work of cpps and its member states on the protection of marine biodiversity and living resources in the Southeast Pacific is based upon the precautionary principle and ecosystem-based management of the offshore environment.⁹³ In light of its modest resources, the cpps work programme is nothing short of ambitious and touches upon many aspects of ocean governance including: the progressive development of the law of the sea through participation in international and regional processes; coordinating joint approaches to regional regulations; scientific and environmental assessments of natural resources and fisheries; and coordinating action to prevent, reduce and control pollution of the marine environment.⁹⁴ Since 2013, prominent accomplishments include the adoption and implementation of regional action plans on marine and coastal protected areas, marine mammals, turtles, and mangroves, as well as projects on marine litter, micro-plastics and municipal litter. Indeed, cpps member States were among the first regional groups worldwide to address marine debris and to undertake specific initiatives on the production, recycling and responsible consumption of plastic materials that pollute the marine environment.⁹⁵ An important dimension of the work programme extends to sharing environmental and climatic data with iattc and sprfmo for fisheries management and biodiversity conservation purposes.⁹⁶ The mou between cpps and iattc expired in 2020 and the working relationship between the two bodies is sometimes reported as fractious.⁹⁷ Less problematically, cpps fosters regional partnerships to monitor and forecast oceanographic and climatic variability.⁹⁸ At the multilateral level, it remains fully engaged with law of the sea processes at the UN and makes substantial scientific contributions to the UN World Ocean Assessment Reports, and participates as an observer at the bbnj negotiations at the UN.

The 2012 Galápagos Commitment highlights the importance of economic valuation of ecosystem services as a tool for the planning and management of the marine environment. The same instrument promoted the role of cpps in advancing regional cooperation among its members on conservation matters, as well as broader engagement and coordination with other intergovernmental bodies within and beyond the region including coastal and island States in the West Pacific.⁹⁹ This dimension of its work is continuously expanding and extends to the conclusion of an agreement with the Secretariat of the Pacific Environment Programme to cooperate in the protection of a more extensive area of the Pacific. The latter objective is particularly appropriate in view of the long-term regional opposition to nuclear tests in the Pacific, its support for processes and targets set under the Convention for Biological Diversity including those on sustainability of fishery resources, marine ecosystems, and marine protected areas, as well as the effective implementation of the Sustainable Development Goals under the 2030 Agenda. Furthermore, because of the disparate nature of ocean governance arrangements in the Southeast Pacific,¹⁰⁰ cpps is obliged to interact with at least a dozen other intergovernmental and international organisations including those concerned with living and non-living resources of areas beyond national jurisdiction, intractable topics that merit further consideration here.

5 Challenges and Pressures: Fishing and Seabed Mining

The discussion in this Chapter shows that many pivotal legal questions concerning high seas biodiversity are linked inextricably with the progressive development of international law. The search for successful environmental solutions is therefore more often than not contingent upon the adoption of appropriate regulatory measures, as well as the application of cutting-edge normative principles and approaches by competent international and intergovernmental bodies. With this in mind, our treatment of the subject below concentrates on high seas fisheries and seabed mining of the International Seabed Area (the Area), two of the most formidable regulatory challenges that must be overcome to ensure the conservation and sustainable use of biodiversity in the Southeast Pacific.

5.1 Fisheries in the Southeast Pacific

The management of high seas fisheries raises many contentious elements concerning the mandates and work of the two regional fisheries management organisations, namely: the Inter-American Tropical Tuna Commission (iattc) and the South Pacific Regional Fisheries Management Organisation (sprfmo). The geographical scope of these bodies overlap, as can been seen from Figure 5.2. Furthermore, they have very different approaches to the conservation of biodiversity and the application of the ecosystem approach to lessen the impacts of fisheries on marine ecosystems.

View Full Size

Regional fisheries organizations: geographical area of overlap sprfmo and iattc

source: wmu-goi

• Download Figure
• Download figure as PowerPoint slide

We shall start with the sprfmo, first established in 2013 pursuant to the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean.¹⁰¹ The sprfmo is responsible for managing non-highly migratory fisheries and the protection of biodiversity in the marine environment in high seas areas of the South Pacific Ocean.¹⁰² Suffice to note here that the sprfmo is well placed to adopt appropriate conservation measures and to mitigate the impacts of fisheries on marine ecosystems. This is particularly true in view of its broad membership of 15 contracting parties including China and three cpps member states (Chile, Peru and Ecuador), as well as four cooperating parties that include Colombia.¹⁰³ According to the Preamble of the sprfmo Convention, the organisation aims to ‘avoid adverse impacts on the marine environment, preserve biodiversity, maintain the integrity of marine ecosystems and minimise the risk of long-term or irreversible effects of fishing’.¹⁰⁴ In practice, progress by sprfmo in discharging its treaty mandate to protect biodiversity has been very much like the proverbial Curate’s egg, that is to say, good and bad in places. For instance, it has prohibited the use of large-scale pelagic nets and deep-water gill nets, adopted management measures to reduce the impact of fishing on seabirds and gone some of the way to addressing vmes through restrictions on bottom fishing, as well as setting down a legal requirement to undertake a research assessment of potential environmental impacts prior to opening new bottom-fishing areas.¹⁰⁵ Laudably, srfmo and its member States have heeded scientific advice on conservation measures and this contributed in large measure to the recovery of the stock of Jack Mackerel, which was facing collapse due to over-exploitation and poor management decisions. In contrast to many other rfmos, the success of srfmo has been facilitated by a decision-making procedure that allows for majority voting procedures if the members fail to reach agreement on management measures based on consensus.¹⁰⁶ Crucially as well, in view of the oceanic scale of its Convention area, srfmo applies a sophisticated array of msc tools to monitor and enforce its conservation measures.

All of the foregoing represent progress but at the same time much remains to be done to ensure the long-term sustainability of fisheries and the safeguarding of biodiversity in high sea areas adjacent to the maritime zones under the sovereignty and jurisdiction of cpps member States. Indeed, according to the performance review published in 2018, the srfmo needs to enhance its capacity to undertake ecosystem-based management by taking into consideration deep-water chondrichthyans, seabird mitigation measures for all fisheries, habitat mapping, and examination of climate change impacts.¹⁰⁷ Furthermore, the review concluded that area-based management tools ought to be applied to link conservation measures with the identification of ebsas and vmes.¹⁰⁸ By any account, there is an urgent need to adopt spatial management measures for the high seas pocket between the unesco designated Galápagos Marine Reserve and the eez of Ecuador. According to Global Fishing Watch, this area is subject to intensive fishing activity by a large fleet of 200 vessels flying the flag of China and targeting protected species of shark as well as the squid fisheries.¹⁰⁹ We will return to the latter topic below in our discussion of the Eastern Tropical Pacific Marine Corridor.

The second rfmo mentioned above is the iattc, the oldest of the tuna fisheries intergovernmental bodies. Despite its longevity, this organisation is still beset by many practical problems in discharging its mandate in the management and conservation of the tuna fishery resources and related species under the Antigua Convention. The geographic scope of the latter covers an extensive area of the Southeast Pacific. Chile, however, remains a cooperating non-party, a significant membership shortcoming. The catch of the iattc-regulated fleet of tuna vessels is taken primarily from abnj including in the yellowfin, albacore, skipjack, bigeye, and Pacific bluefin tuna fisheries. The iattc applies a comprehensive array of fisheries management measures including spatial closures, catch limits, and technical conservation measures to limit bycatch, which are underpinned by compliance and enforcement rules. Despite the sophisticated nature of many of these measures and its expertise in using risk assessment models to inform fishery decision-making and stock assessment, the performance of iattc in the protection of biodiversity and trophic interactions in abnj falls well short of international standards. As a result, tuna fisheries conducted under the auspices of iattc continue to have significant impacts on marine ecosystems and high seas biodiversity, including billfishes, marine mammals, sea turtles, sharks and rays, as well as other fauna, as is evident from an assessment published in 2018.¹¹⁰ One can conclude from the latter report that the commitment of iattc to implement the ecosystem approach in line with its obligations under the Antigua Convention and the 1995 fao Code of Conduct for Responsible Fisheries leaves much to be desired. This is disappointing in view of its considerable science capacity to conduct stock assessments and to undertake technical field work on the impacts of fisheries on marine ecosystems.¹¹¹ Remarkably, although the iattc has a strong legal mandate and considerable success in reducing dolphin mortality in the epo under the Agreement on the International Dolphin Conservation Program (aidcp), it has been slow to develop or implement appropriate scientific tools for ecosystem management such as the adoption of biological and ecological indicators of species and ecosystem integrity impacted by its fisheries.¹¹² At the time of writing, iattc has major difficulties in adopting appropriate management measures governing fish aggregating devices (fads) in the epo, and this is also impacting biodiversity adversely.

As seen elsewhere in this volume, the activities of iuu vessels impacts considerably on living resources worldwide including on biodiversity. This is also true in relation to the Southeast Pacific. Indeed, one of the major regulatory challenge for the region is to how to improve the enforcement and compliance of fisheries laws both within and beyond national jurisdiction including by the parties and the cooperating non-parties to the regional agreements. In this regard, the two aforementioned regional fisheries organisations have significant roles to play and are working in concert with cpps member states on matters of common concern including vms, observer schemes and port state measures. Crucially, apart from Colombia, all cpps member are party to the 2009 Port State Measures Agreement. However, it is reported that some cpps members have traditionally been reticent about sharing fisheries information including on the activities of iuu vessels in their respective maritime zones.¹¹³ With an eye to mitigating this shortcoming and to reinforcing regional cooperation in fisheries law enforcement, Peru, Chile, Ecuador, Panama and Costa Rica concluded an agreement with Global Fishing Watch to share information on iuu vessels in the region¹¹⁴ Moreover, cpps has been active in forging regional approaches to iuu fishing by hosting workshops on strengthening regional coordination to combat iuu fishing in waters under national jurisdiction of the cpps member States, hosting meetings of judicial authorities and the maritime authorities of its member states, as well as conducting training sessions on regional monitoring control and surveillance schemes to implement port state measures. However, many challenges remain, including in relation to extending the observer programme coverage adopting more effective compliance mechanisms, as well as greater engagement by ngos in compliance procedures.¹¹⁵

6 Seeking Greater Regulatory Coherence: The Eastern Tropical Pacific Marine Corridor

At many practical levels, one of the most difficult regulatory challenges encountered in the Eastern Pacific Ocean stems from the ambulatory nature of marine ecosystems and the migratory range of marine species within and across the Eastern Tropical Pacific and the Southeast Pacific. One can therefore ask: is it possible to mitigate the transboundary impacts of human activities on marine ecosystems and species that straddle and migrate between areas within and beyond national jurisdiction through the application of spatial management tools under the law of the sea?

An example in point relates to the tropical and sub-tropical ecosystems that extend southwards from the Gulf of California to the north of Peru, covering sea areas under the jurisdiction and sovereignty of close to a dozen coastal States, as well as a considerable portion of the high seas.¹²² Although Costa Rica has been a longstanding promoter of regional approaches to marine environmental stewardship, it faces many intergovernmental difficulties as evidenced by the marked reluctance of States to ratify the 2002 Antigua Convention for the North East Pacific.¹²³ Although the latter was signed by Mexico, El Salvador, Honduras, Nicaragua, Guatemala, Panama, Costa Rica and Colombia, it has attracted only two ratifications to date, Guatemala and Panama, which is two countries short of the number to bring the instrument into force.

Notwithstanding this absence of committment, there appears to be greater political appetite in recent years to develop a more coherent regional approach to transboundary marine environmental issues that link the Central Tropical Pacific with the Southeast Pacific. Notably, a rejuvenated chapter in intergovernmental relations appears to have commenced in 2021 with the signature of the Declaration for the Conservation of the Marine Corridor of the Eastern Tropical Pacific (referred to cmar) by the Presidents of Ecuador, Colombia, Panama and Costa Rica on the margins of the Climate Change cop 26 in Glasgow. This political initiative formalises regional arrangements that connect several mpas within the national jurisdiction of the four signatory States with each other by means of marine corridors (migravías). The corridor is shown by the shaded in Figure 5.3 below.¹²⁴ Disappointingly, the precise geographical limits of the corridor remains undefined but to all intents and purposes appears to exclude areas beyond national jurisdiction, including the high seas pocket between Galápagos and Gorgona, where there is intense fishing activity, as highlighted previously. Even though this is a serious geographical flaw that will undermine its long-term effectiveness, the Declaration signals an important development in regional marine environmental policy, particularly as its implementation will entail a moratorium on fishing activity in the corridor to protect the migratory routes of species such as sea turtles, blue whales, hammerhead sharks and rays, as well as coral reefs and mangroves in coastal waters.¹²⁵

View Full Size

Eastern Tropical Pacific Marine Corridor

source: wmu-goi

• Download Figure
• Download figure as PowerPoint slide

Today this regional initiative is more urgent than ever due to the relentless loss of biodiversity and destruction of marine habitats in the Eastern Pacific. Perhaps less well known is that cmar is not entirely new in so far as its stems from the 2004 San Jose Declaration, a non-binding political agreement by the same countries to establish a corridor connecting mpas in the five groups of islands and offshore archipelagos consisting of the following: Malpelo and Gorgona belonging to Colombia; the Coiba mpa in the eez of Panama; the Galápagos Marine Reserve under the sovereignty and jurisdiction of Ecuador; and the Cocos National Marine Park established and managed by Costa Rica.¹²⁶ Apart from Gorgona, all of the mpas are recognised as unesco World Heritage Sites, thus underscoring their global status and the need for specific conservation measures and management plans. In addition, Coco and Galápagos enjoy further protection under the Ramsar Convention, with the latter and Malpelo designated as Particularly Sensitive Sea Areas by the imo. As discussed above, many of the protected areas such as the Galápagos Marine Reserve enjoy high levels of marine endemism and several species are protected under cites and cms.¹²⁷ Due to its environmental significance and the need for further conservation measures, the cmar is part of an Ecologically and Biologically Significant Area under the Convention on Biological Diversity.

Although the 2004 San Jose Declaration was first agreed close to ten years ago, the corridor in the intervening years was characterised by inherently weak governance structures and inaction on the part of the signatory States, especially in relation to monitoring and compliance mechanisms, as well as failures to adopt appropriate laws and policies to ensure the conservation of biodiversity in areas within national jurisdiction.¹²⁸ In order to tackle these shortcomings, the 2021 cmar initiative entails the implementation of a Regional Action Plan 2019–2024 along with a range of conservation and management activities of the signatory States to combat illegal fishing and to preserve the biodiversity of the corridor, which will constitute a unesco biosphere reserve. The overall aim of the initiative is to improve the conservation and sustainable use of the region’s marine and coastal resources through ecosystem-based management and the development of regional intergovernmental strategies with the support of ngos and international bodies. There are several other innovative aspects of the 2021 cmar initiative, which bode well for the establishment of a more robust protection scheme. For instance, the 2021 Declaration is financed by the Development Bank of Latin America and entails a debt swap for the conservation of the marine environment. As such, it also reflects a regional approach that is underpinned by a shared institutional structure along with common values including: the precautionary principle, stakeholder engagement, transparency in decision-making, adaptive management of the offshore environment, as well as the pooling of regional expertise and resources. All management decisions are adopted by consensus, but the real powers remain at national levels, in so far as the principal mechanisms for the delivery of specific actions are the National Commissions in each of the signatory States.

From the perspective of this analysis, it is significant to note that there are several regulatory and policy linkages between the corridor initiative and other conservation schemes in the Southeast Pacific. Thus, for example, the mpas associated with the Galápagos, Malpelo, Gorgona, and Coiba are also part of the regional mpa network of the Southeast Pacific pursuant to the Biodiversity Protocol of the Lima Convention. Within this framework, there appears to be considerable scope for the cmar signatory States to work further with cpps and its member States on matters of common conservation concern. The scheme of protection afforded by the corridor could, for instance, be extended to cover areas beyond national jurisdiction, most especially to address the illegal activities of vessels operating in the high seas pocket between the Galápagos and continental Ecuador.¹²⁹ In principle, and provided that Central American States can muster sufficient political support from Costa Rica, Panama and Nicaragua, it is also conceivable that the corridor could be rolled out farther north to cover the crd, a proposal that we will return to below. Suffice it to say here that any such development will mark the attainment of a major regional milestone in the protection of marine biodiversity of the Eastern Pacific, bearing in mind that both the cmar and the crd are component parts of the same Large Marine Ecosystem that straddle areas beyond national jurisdiction along with the maritime zones of Mexico, Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica, Panama, Colombia, and Ecuador. Realistically, for this to happen the crd will have to be designated as a high seas mpa under the processes set down by the bbnj Agreement. As will be seen next, Latin American States have shaped the substantive content and cross-cutting provisions of the latter instrument.

7 cpps Member States and the bbnj Agreement

The conservation of marine ecosystems remains of paramount importance for countries bordering the Southeast Pacific since the 1940s. After the coming into force of the 1995 Fish Stocks Agreement however, individual and joint efforts to protect biodiversity in areas beyond national jurisdiction encountered strong headwinds at various regional processes concerned with the protection of marine ecosystems in the region. Indeed, neither the 2000 Galápagos Agreement nor its 2003 Protocol took legal effect due to the absence of political support at national levels among the signatory States.¹³⁰ As a result, the cpps was denied formal treaty powers to take binding legal measures on behalf of its members in relation to high seas biodiversity. Despite regional inaction on such matters, cpps member States nonetheless remained highly engaged in various multilateral processes concerned with protecting the marine environment, including most notably the bbnj intergovernmental conference, which convened at the UN between 2017 and 2022. This was greatly facilitated by their membership, and at times leadership of an important negotiation and advocacy group in the international law-making process, commonly known by the acronym clam, denoting the Core of Latin American Countries. Apart from Ecuador withdrawing from clam for a brief period in 2019 and 2020, this alliance includes all cpps member States, as well as Argentina, Brazil, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Dominican Republic and Uruguay. From a law of the sea perspective, the clam group brings a disparate mix of States together, including those with large coastlines, as well as the land-lock country of Paraguay, States with important fisheries interests, States with islands, and States that are party and non-party to unclos. In view of its diversity of maritime interests, clam was well placed to contribute to the search for middle ground solutions in the negotiations of a new multilateral treaty on high seas biodiversity.¹³¹ Interestingly, although not a member of clam per se, the land-locked State of Bolivia actively led the negotiations at the igc during the course of its presidency of G77/China in 2018 and used its position to advocate for the rights of nature approach to high seas biodiversity.

The unified approach of cpps member states to the bbnj negotiations is unsurprising when one considers that the 2012 Galápagos Commitment affirmed their shared goal to enhance the conservation and sustainable use of biodiversity in the entire Pacific Basin.¹³² By virtue of the same instrument, they committed themselves to a range of regional actions that have major law of the sea implications including: the establishment of alliances to develop joint projects and exchange of experiences on maritime issues; collaboration on scientific research programmes pertaining to the marine environment within and beyond national jurisdiction; tackling pollution of the marine environment; promoting the conservation and non-lethal use of whales in international fora; creating new mpas and consolidating a regional network of marine and coastal protected areas in the Southeast Pacific; along with the adoption and support of the Plan of Action for the Protection of the Marine Environment and Coastal Areas of the Southeast Pacific.¹³³ Furthermore, cpps was tasked with coordinating regional responses to these issues on foot of its advisory competences.¹³⁴ To take the bbnj agenda forward, the cpps Assembly established technical working groups to examine various topics that were central to the negotiations including: the conservation and sustainable use of biodiversity and marine genetic resources; the sustainable management of fisheries and the conservation of biodiversity of deep waters and ecosystems; and the development of an Integrated Regional Ocean Policy to serve their common interests.¹³⁵ In parallel, the cpps raised its international profile at various law of the sea processes more broadly and articulated its views on some of the key issues by contributing to the United Nations Regular Process for global reporting and assessment of the state of the marine environment, including socioeconomic aspects.¹³⁶ This engagement extended to participation in research initiatives including the strong High Seas project on high seas governance arrangements for biodiversity in the Southeast Pacific and the Southeast Atlantic.¹³⁷

On the various cross-cutting elements of the bbnj package, cpps member States have a common history and strong geopolitical reasons to support the codification of normative principles and approaches for environment management including the ecosystem approach.¹³⁸ As seen above, this is entirely understandable because the ecosystem approach is linked with the raison d’être of cpps, as well as many practical aspects of its work programme.¹³⁹ The bbnj Agreement may thus redress the longstanding concerns of cpps member states about the application of this normative paradigm in areas beyond national jurisdiction, especially if they can apply it in a way that reflects the principles of interdependence and social justice, thereby contributing to the wellbeing of coastal communities and States of the Southeast Pacific. Indeed, according to the cpps statutes, the ecosystem approach will be ‘successfully achieved if it maintains or increases the capacity of an ecosystem to produce the desired benefits, and increases the capacity of society to equitably distribute the associated benefits and costs’.¹⁴⁰ To this end, one of the tasks of the cpps is to propose long-term strategic guidelines, taking into consideration the ecosystem-based approach, and to protect ecosystem services for the benefit of states parties, their peoples and the marine environment.¹⁴¹ As seen previously, important work is underway under the auspices of cpps in relation to economic and social evaluations of the benefits derived from marine biodiversity and their associated ecosystems within the region.

Another significant aspect of the bbnj Agreement is that the entire instrument pivots around the provisions promoting international cooperation between States and among relevant legal instruments and frameworks, as well as between global, regional, subregional and sectoral bodies.¹⁴² Similar to many other law of the sea treaties, the principle of cooperation permeates all aspects of the Agreement and will ultimately provide an important avenue for improving ocean governance worldwide including in the Southeast Pacific. In this context, the bbnj Agreement may provide an incentive for the member states to further empower cpps, so that it has a more extensive range of powers to engage in multilateral and regional processes on their behalf.¹⁴³ Currently, the principal mechanisms for collaboration are cooperation agreements, including the arrangements that have been concluded with the Economic Commission for Latin America and the Caribbean on marine resources and regional development;¹⁴⁴ the fao on fisheries planning and research on living marine resources;¹⁴⁵ and the State Oceanic Administration from China on oceanic activities undertaken in the Pacific basin.¹⁴⁶ Additionally, cpps has signed a Memorandum of Understanding with cbd,¹⁴⁷ and with the Inter-American Tropical Tuna Commission.¹⁴⁸ Overall, however, cross-sectoral collaboration between various intergovernmental bodies remains fundamentally weak and has not been developed to any degree in the Southeast Pacific, according to the cpps Secretariat.¹⁴⁹

In line with their collective interests, the cpps member States have followed a regional approach to the negotiation of the four substantive strands of the Agreement. This includes on the many contentious provisions pertaining to marine genetic resources, where they have aligned their positions with clam and G77/China more generally. Remarkably, there are no regional specific instruments on the use, access to and benefit sharing of marine genetic resources that apply in abnj of the Southeast Pacific, even though they constitute marine living resources and thus fall within the scope of the 2012 Galápagos Commitment. By any measure, the high seas freedoms to collect and use mgrs appear to constitute a major lacuna in regional ocean governance arrangements, especially when one considers the number of hydrothermal vent sites and other areas of great scientific interest that merit special protection in their own right. The cpps has long strived to plug this legislative gap by hosting a number of regional workshops on the scientific and legal aspects of developing a sui generis regulatory framework governing the exploration and collection of mgrs in areas beyond national jurisdiction of the Southeast Pacific.¹⁵⁰

In contrast to the absence of regulatory measures on marine genetic resources, cpps member States have considerable expertise and a number of regional obligations pertaining to the environmental impact assessment of offshore activities, which is the second substantive strand of the bbnj package. More specifically, within the framework of the Lima Convention, cpps Parties have adopted technical guidelines on eia to assist member states and other actors on the planning of projects and to minimize their harmful impacts on the marine environment of the Convention Area. The latter, it may be recalled, encompasses abnj to the extent that is necessary to control pollution of the marine environment.¹⁵¹ Moreover, the Protocol for the conservation and management of protected marine and coastal areas of the Southeast Pacific stipulates that Parties must undertake the following: assess the environmental impact of any activity liable to produce adverse effects on protected areas; establish an integrated analysis procedure; and exchange of information on alternative activities or measures for preventing such effects.¹⁵² In practice, however, the picture is less rosy in so far as the aforementioned assessment requirements are not applied in relation to projects conducted exclusively in abnj of the Southeast Pacific.¹⁵³ In view of the transboundary impacts of many anthropogenic activities, this may be considered a major weakness in the regional approach to the protection of marine biodiversity both within and beyond national jurisdiction. One anticipates that this governance gap will ultimately be closed by the eia provisions in the bbnj Agreement, as soon as they come into force.

On the third strand of the bbnj package on area-based management tools and the establishment of mpas in areas beyond national jurisdiction, much remains to be done despite the considerable progress that has been made in coastal waters. Impressively, close to half of Chile’s eez is designated as protected areas and management measures extend to a number of “no take” zones for fisheries. At a scientific level, the latter prohibitions are crucially important in light of the ecological connectivity between the biodiversity associated with the oceanic archipelagos under Chile’s sovereignty and maritime jurisdiction and the health of the broader marine environment of the Pacific.¹⁵⁴ As seen above, despite its longstanding affinity with the concept of Mar Presencial in the Southeast Pacific, Chile has not sought to impose obligations in relation to the activities of third parties in high seas areas adjacent to mpas in waters under national jurisdiction. Furthermore, it is difficult to discern a broader regional commitment to establish mpas on the high seas. This reluctance is all the more notable when one considers that a protocol to the Lima Convention addresses specifically the conservation and management of protected marine and coastal areas of the Southeast Pacific.¹⁵⁵ The latter instrument recognises the need to adopt appropriate measures for the protection and preservation of fragile, vulnerable and unique ecosystems, as well as threatened species, and calls for the establishment of protected areas.¹⁵⁶ Significantly the geographical scope of the Protocol encompasses the eezs of the Contracting Parties, as well as the entire continental margin extending beyond 200 nautical miles.¹⁵⁷ The Protocol therefore provides a legal basis for the establishment of protected areas on the extended continental shelf beyond the 200 miles eez limits and in areas where the super-adjacent water column is high seas.¹⁵⁸ In marked contrast to the practice of States on the Atlantic coast of Europe such as Portugal, at the time of writing, no Latin American State has established an mpa on its outer continental margin beyond 200 nautical miles. That said, Costa Rica and Ecuador have made a joint submission in relation to the Panama Basin to the Commission on the Limits of the Continental Shelf under Article 76 of unclos.¹⁵⁹ Chile has made a submission in respect of the Eastern Continental Shelf of Easter Island Province.¹⁶⁰ If these claims are determined favourably in whole or in part by the Commission in due course, then these countries will be in a position to establish mpas on their respective continental margins. If they do, the Protocol addresses the relevant criteria that apply to establishing mpas; the regulation of activities within mpas including the very significant prohibition on seabed mining and any other activity liable to have adverse effects on species, ecosystems or biological processes; measures to prevent, reduce and control pollution; as well as provisions on regional cooperation and capacity building.¹⁶¹

The hesitancy of cpps member states in establishing high seas mpas is compounded by the marked reluctance of multilateral bodies in applying sector specific spatial tools.¹⁶² By any standard, there is a strong scientific case supporting the application of area-based management tools in particular to safeguard biodiversity, especially when one considers that there are 21 ebsas in the Eastern Tropical and Temperate Pacific. This total takes into account 15 in the cpps geographical area,¹⁶³ including six that are located in abnj, namely: Salas y Gómez and Nazca Ridges;¹⁶⁴ Equatorial Front and Carnegie Ridge;¹⁶⁵ Equatorial High-Productivity Zone;¹⁶⁶ an area of the Eastern Tropical Pacific Marine Corridor;¹⁶⁷ an area of the Galápagos Archipelago and Western Prolongation;¹⁶⁸ and the Grey Petrel Feeding Area in the South-East Pacific Rise.¹⁶⁹ Several of the ebsas constitute high productivity areas of upwelling systems, similar to the oceanographic features that take place in the crd.¹⁷⁰ One therefore anticipates that the aforementioned ebsas will constitute priority areas for protection and designation under the bbnj Agreement.¹⁷¹

The fourth strand of the latter instrument concerns capacity-building and technology transfer, which are of fundamental importance for cpps member States in view of their status as developing States. These topics are addressed by both the 1981 Lima Convention and the 1989 mpa Protocol.¹⁷² As highlighted above, there is a pressing need for more scientific research in the Southeast Pacific and the sharing of international resources to do so. Moreover, in contrast to the majority of coastal States in the Global South, Chile and Peru have significant scientific infrastructure including deep ocean research vessels, which are well capable of undertaking the technical fieldwork to support the implementation of the bbnj Agreement.¹⁷³ A regional approach on capacity-building will also accord with the mandate of cpps, which extends to strengthening scientific cooperation and capability in the region, particularly as it relates to tasks associated with environmental and fisheries management, combatting climate change and efforts to mitigate the risks associated with natural phenomenon.¹⁷⁴ As seen previously, notable examples in this regard include: the coordination of the El Niño Regional Research Programme (erfen);¹⁷⁵ national and regional initiatives to protect the marine environment;¹⁷⁶ as well as collaboration with the sprfmo and other partners in the implementation of a major gef project on sustainable fisheries management. Indeed, one of the objectives of the cpps working group on fisheries management and biodiversity conservation of deep-sea living marine resources and ecosystems in abnj is to build capacity to assess the status of deep-sea fisheries and the conservation status of vmes in areas beyond national jurisdiction.¹⁷⁷ To this end, collaboration agreements have been concluded by cpps with the Economic Commission for Latin America and the Caribbean;¹⁷⁸ fao;¹⁷⁹ the State Oceanic Administration from China;¹⁸⁰ cbd;¹⁸¹ and the iattc.¹⁸² Furthermore, the bbnj Agreement may improve the scope for cross-sectoral collaboration on capacity building and technology transfer between multilateral, regional and national bodies concerned with the conservation and sustainable use of biodiversity in the Southeast Pacific.¹⁸³ If it does so, this will be a major accomplishment that is long overdue under Parts xiii and xiv of unclos. As such, it will have an immediate and discernible effect on ensuring that Latin American States can give full effect to, and derive benefits, from the implementation of the bbnj Agreement.

8 Lessons for the crd

High seas governance in the Southeast Pacific is a complex and compelling field of international law. Complexity arises out of the unique blend of geo-political, legal, scientific and social considerations at play in shaping the precise contours of the regional approach to regulating the conservation of marine biodiversity both within and beyond national jurisdiction. At this point in the discussion, it is therefore appropriate to review if and how the practice of cpps member states in law of the sea matters can influence the establishment of new governance arrangements for the crd in the Central Tropical Pacific.

In both the Southeast Pacific and the Central Tropical Pacific, we can start by pointing out that all of the primary actors are developing States in the push to improve sustainability practices under international law and the development of new norms and instruments for doing so. There is also a collective understanding that the socio-biological unity of the ocean has underpinned regional coordinated action on important law of the sea matters since the adoption of the Santiago Declaration in 1952. Today, regional recognition of the unity of marine ecosystems lies at the very heart of the mission of cpps and its member States, which are all committed to the implementation of the three pillars of sustainable development.¹⁸⁴ There are, of course, inherent tensions in the region on matters such as maritime boundaries and access to fishery resources, but the cpps member states are nonetheless willing to work hand-in-hand with other members of clam to attain successful outcomes from the bbnj negotiations at the intergovernmental conference under the auspices of the UN. They are also keen to provide leadership on conservation issues, albeit within national jurisdiction and to partner with their sister States to the north for this purpose.¹⁸⁵ Their global marine environment stewardship credentials are greatly enhanced by the establishment of the Eastern Tropical Pacific Marine Corridor (cmar) to protect migratory species by linking mpas in sea areas within national jurisdiction. However, one should not forget that a similar initiative pursuant to the 2004 San Jose Declaration failed to deliver the anticipated conservation benefits due to inherently weak governance structures and enforcement mechanisms.¹⁸⁶ Vitally, the 2019–2024 Action Plan recommends expanding the cmar initiative to include other mpas and countries in the region, which potentially opens the door for its application to the crd,¹⁸⁷ without including it specifically by name. A possibility that we will return to below.

The second lesson relates to the coordinating role that cpps plays through its work programme, which is primarily expert led and structured around science-based decision-making in policy and regulatory processes. A case in point is the working-group on iuu fishing that focuses among other matters on regional implementation of Port State measures.¹⁸⁸ There is also a strong emphasis on reducing the bycatch of fisheries, as seen in the work undertaken by the Technical Coordination Committee for Sharks, which advises cpps on the implementation of a Regional Action Plan for the conservation and management of sharks, rays and chimaeras in the Southeast Pacific Region (par-Tiburon).¹⁸⁹ As highlighted previously, the establishment of working groups to examine abnj related topics by the cpps Assembly contributed enormously to the adoption of a unified approach to the international regulation of high seas biodiversity and shaped the negotiation positions adopted by clam in the treaty deliberations at the UN. In addition, it should be borne in mind that cpps is committed to delivering science to inform environmental impact assessment, as well as area-based management tools, even though it does not have a legal mandate to implement area-based planning stricto sensu in abnj.¹⁹⁰ In addition, it promotes marine scientific research and capacity building,¹⁹¹ including global and regional programmes for the conservation of biodiversity and the protection of the environment, as well as to ensure that appropriate scientific and climatic data is readily for this purpose.¹⁹² This extends to supporting a regional oceanographic cruise programme and the dissemination of the results of marine scientific research to inform policies and actions on matters of global and regional environmental concern.¹⁹³ A commendable example is the study of the El Niño phenomenon in the Southeast Pacific undertaken by cpps in partnership with two dozen scientific institutions.¹⁹⁴ cpps also contributes to the Global Ocean Observing System (goos) regional alliance for the Southeast Pacific.¹⁹⁵

Perhaps the most important lesson that can be derived from the Southeast Pacific is that coastal States in the Central Tropical Pacific, such as Costa Rica, will have to take on responsibility for protecting the crd and build strong regional arrangements for doing so. In particular, they will have to muster considerable support from a broad range of countries within and beyond region, as well as from a willing and strong cohort of intergovernmental bodies, especially those that have conservation interests and regulatory mandates in the Eastern Pacific. The nature of this challenge should not be underestimated and some of the initial portends are less than favourable, particularly so when one considers that there was little or no engagement from regional bodies such as iattc and the sprfmo in the bbnj negotiation processes at the UN to develop a new implementation agreement under unclos. Moreover, as seen above, multilateral organizations such as the isa and the imo are slow to adopt regulatory measures tailored to address the conservation requirements of the Southeast Pacific. The need for such measures is particularly acute in relation to the Nazca Ridge, which borders a major international shipping route and has high concentrations of seabed minerals. The harsh reality is that much of the burden to champion the protection of high seas biodiversity rests with the modestly resourced cpps, which has an inherently weak legal mandate to advance the conservation agenda.

9 Safeguarding Marine Ecosystems in the Southeast Pacific

Although cpps member states were avant-garde on many maritime matters for well over half a century and provided strong international leadership on ecosystem-based management of the marine environment, one has to conclude this chapter on a relatively cautious note. Undoubtedly, States bordering the Southeast Pacific share many similarities with their neighbors in Central America in so far as they are all developing or low middle-income countries, which are struggling to climb the rankings in the Human Development Index. Apart from their membership of clam, they have common economic, social and geo-political interests in establishing a stable and effective international treaty regime governing high seas biodiversity. In recent years, however, state practice has focused almost exclusively on protecting the marine environment under coastal States jurisdiction. Constructively in this regard, cpps promotes large marine ecosystem-based management considerations in national policies and programmes, working in concert with international organisations such as the fao.¹⁹⁶

Governance arrangements in the Southeast Pacific are multifaceted and face many challenges including the scourge of iuu fishing.¹⁹⁷ Somewhat ironically, in light of their longstanding commitment to legal concepts that are premised on the ecological unity of the ocean, Latin American States bordering the Pacific have not taken any substantive measures to protect marine biodiversity in areas beyond national jurisdiction over and beyond giving effect to the measures adopted by the regional fisheries bodies. Aside from the latter, they have not sought to press high seas ecosystems-based obligations on vessels flying their national flags, or indeed the flags of third states. More remarkably, they have not elevated the regional seas programme to a fully-fledged regional seas treaty, similar to the approach taken in other ocean regions. These regulatory shortcomings are particularly lamentable in relation to the biodiversity associated with the Salas y Gómez and Nazca ridges, which is predominantly in areas beyond national jurisdiction and has extraordinary levels of marine endemism.¹⁹⁸ Paradoxically, Chile supported the adoption of the 2021 Madrid Declaration by ccamlr parties to advance the designation of new marine protected areas in Antarctica and is a strong proponent, along with Argentina, of international efforts to safeguard the marine environment more generally in the Southern Ocean.

In contrast to the constructive endeavors of cpps member states in multilateral and regional processes under unclos and other international instruments, it nonetheless appears that ecological concerns play a paltry second fiddle to the powerful fishing interests in Latin America. Perhaps this failing is most egregious in relation to high seas biodiversity in the region. In this context, one should not forget that the primary State actors are all from the region, with respective percentages of total fishing effort in the Southeast Pacific being accounted for by Peru (60%), Chile (26%), and Ecuador (7%).¹⁹⁹ According to this narrative, one is left with the overriding impression that States within the region have to a certain degree coalesced in keeping cpps relatively weak as the regional maritime coordination body. In particular, they have deprived it of the resources to ensure effective and ambitious conservation leadership within the dozen or so national, regional and multilateral bodies concerned with ocean governance and the protection of the marine environment in the Southeast Pacific. By any analysis, a major lacuna stems from the absence of substantive cpps powers to adopt legally binding conservation measures that apply beyond national jurisdiction, other than within the narrow confines of the 1991 Lima Convention and Article 4 of its Statute.

All in all, without substantial reform, it is difficult to see at this point in time how cpps can grow its membership or extend its geographical scope to include the crd, particularly in view of its limited mandate pertaining to the conservation of biodiversity in areas beyond national jurisdiction.²⁰⁰ Nonetheless, history teaches us that the interconnectivity of ocean ecosystems and the need for coherent regulatory systems will continue to influence the practice of all Latin American States in the Eastern Pacific. Looking to the future, if they are to remain true to the spirit and letter of the Santiago Declaration, it will greatly serve their interests to ratify and support the expeditious implementation of the bbnj Agreement by all states concerned with conservation issues in the entire Pacific Basin. Overall, the picture that emerges from the discussion in this chapter is that much remains to be done in the Southeast Pacific before it can be used as a template for the establishment of new ocean governance arrangements for the crd. The bbnj Agreement thus has the potential to herald in a new era of marine biodiversity conservation and should therefore be ratified and implemented by all Latin American States.