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Strengthening Governance Frameworks for Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction: Southern Hemisphere Perspectives

In: The International Journal of Marine and Coastal Law
Author: Robin Warner1
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  • 1 Australian National Centre for Ocean Resources and Security University of WollongongAustralia
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Abstract

The southern hemisphere is dominated by oceanic influences with 80% of its surface area consisting of ocean space. It hosts abundant marine biodiversity, which is under increasing pressure from activities such as fisheries and shipping as well as multiple sources of marine pollution and climate change impacts. The process initiated by the un General Assembly Resolution 69/292 to develop the elements of an international legally binding instrument (ilbi) for conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction has the potential to contribute to a more integrated and cross-sectoral system of oceans governance at a global and regional scale. This article examines key features of the existing global and regional ocean governance framework in the southern hemisphere and how the anticipated ilbi might relate to existing ocean governance frameworks.

Abstract

The southern hemisphere is dominated by oceanic influences with 80% of its surface area consisting of ocean space. It hosts abundant marine biodiversity, which is under increasing pressure from activities such as fisheries and shipping as well as multiple sources of marine pollution and climate change impacts. The process initiated by the un General Assembly Resolution 69/292 to develop the elements of an international legally binding instrument (ilbi) for conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction has the potential to contribute to a more integrated and cross-sectoral system of oceans governance at a global and regional scale. This article examines key features of the existing global and regional ocean governance framework in the southern hemisphere and how the anticipated ilbi might relate to existing ocean governance frameworks.

Introduction

The process initiated by the un General Assembly (unga) in unga Resolution 69/2921 to develop the elements of an international legally binding instrument (ilbi) for conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (abnj) has prompted wide-ranging research into existing ocean governance frameworks and their applicability to conservation and sustainable use of marine biodiversity in abnj. unga 69/292 provides that negotiations to develop the new ilbi should address the four elements of a package deal agreed by States in 2011. These elements comprise marine genetic resources (mgr), including questions on the sharing of benefits, measures such as area-based management tools (abmt), including marine protected areas (mpas), environmental impact assessment (eia) and capacity building and the transfer of marine technology. The Preparatory Committee meetings held in 2016 identified additional cross-cutting issues for consideration, including definitions, scope of the instrument, relationship of the instrument to other instruments and frameworks, institutional arrangements, compliance, responsibility and liability, dispute settlement and final clauses.2 unga Resolution 69/292 also stipulates that the process to develop the ilbi should not undermine existing relevant legal instruments and frameworks and relevant global sectoral and regional bodies.3

The articles in this special issue examine key features of the existing global and regional ocean governance framework in the southern hemisphere and its relevance to the conservation and sustainable use of marine biodiversity in abnj. They also discuss how existing instruments and institutions address the elements of the package deal referred to in unga Resolution 69/292 and how any new governance architecture contained in the ilbi might relate to existing ocean governance frameworks. For the majority of oceanic regions in the southern hemisphere, this analysis reveals significant gaps in regulating conservation and sustainable use of marine biodiversity in abnj and potential challenges in forging new relationships between existing ocean governance regimes and the ilbi. The unga process to develop the ilbi represents a historic opportunity to remediate these gaps and create a more cross-sectoral and integrated system of ocean governance which will benefit not only marine biodiversity in abnj but also within national jurisdictions. The articles in this special issue explore how the unga process could lead to a more effective system for conserving and sustainably using marine biodiversity in southern hemisphere abnj through provisions and implementation mechanisms that support more interconnected ocean governance systems across all elements of the package deal and taking into account cross-cutting issues. In the face of growing threats to and pressures on the marine biodiversity in abnj, the articles emphasise that it is timely to promote a more coherent system of ocean governance in all regions which draws on modern conservation principles and measures developed under international environmental law.

Southern Hemisphere Ocean Areas

The southern hemisphere is dominated by oceanic influences with 80% of its surface area consisting of ocean space as compared to 60.7% of the surface area of the northern hemisphere.4 It encompasses the majority of the Pacific Ocean and Indian Ocean as well as a substantial proportion of the Atlantic and the whole of the Southern Ocean. Many of these ocean areas host abundant and unique repositories of marine biodiversity, which are under increasing pressure from commercial-scale activities, such as fisheries and shipping, as well as land-based sources of marine pollution and climate change impacts.5

A recent scientific study identified six marine areas of exceptional biodiversity in the temperate and tropical regions of the Atlantic Ocean, Indian Ocean, and Pacific Ocean in the southern hemisphere which have been most affected by climate change pressures and industrial-scale fishing.6 These areas are located in the central-western Pacific waters of Peru and the Galápagos Archipelago, in the southwestern Atlantic Ocean in the Patagonian waters of Argentina and Uruguay, on the western side of the Indian Ocean along the coasts of South Africa, Mozambique, Tanzania, Kenya, and Madagascar, in a large area of the central-western Pacific Ocean, including water masses surrounding Indonesia, Malaysia, Philippines, Papua New Guinea, Taiwan and the south of Japan, in waters surrounding New Zealand and Eastern and Southern Australia, in marine areas in Oceania, and in the central Pacific Ocean. These areas all exhibit local to regional increasing water temperatures, slowing current circulation, and decreasing primary productivity.7 This article enjoins the international community “to find solutions that go beyond the interests and borders of sovereign states to conserve the exceptional biodiversity” of these marine hot spots.8

The Convention on Biological Diversity (cbd) began a process in 2004 to describe ecologically and biologically significant areas (ebsas) “in need of protection, in open ocean waters and deep sea habitats.”9 The ebsa designation process has identified a large number of areas within the southern hemisphere oceans whose ecological uniqueness and sensitivity warrant specific conservation and sustainable use measures. Three of the nine workshops convened to identify ebsas were specifically focused on southern hemisphere oceanic regions comprising the Western South Pacific, the South Eastern Atlantic and the Southern Indian Ocean. The workshops identified 109 ebsas of which 30 were in abnj.10 In an article analysing the ebsa process, Bax et al. acknowledge that in terms of biodiversity conservation, “systematic management of abnj is currently lacking in almost all instances” and more effective implementation of existing agreements combined with a new implementing agreement for biodiversity conservation will be needed to improve management of the world’s oceans.11 The articles in this special issue review the strengths and weaknesses of the patchwork of agreements and institutions relevant to marine biodiversity conservation and sustainable use in the southern hemisphere. They analyse different approaches to strengthening the fabric of marine biodiversity governance in abnj and the role of the ilbi in achieving this objective.

Existing Governance Frameworks for Marine Biodiversity Conservation and Sustainable Use in Southern Hemisphere abnj

A diverse array of binding international law agreements and non-binding arrangements at global and regional levels are relevant to the conservation and sustainable use of marine biodiversity in southern hemisphere abnj. The majority of these instruments and their associated institutions are focused on specific sectors, including fisheries, shipping and deep seabed mining, with conservation of biodiversity as a secondary rather than primary objective. In the fisheries sector, the un Fish Stocks Agreement (unfsa)12 provided the first comprehensive blue print for sustainable fisheries conservation and management in marine abnj and model provisions for cooperation between coastal States and flag States with high seas fishing fleets. As well as codifying all the relevant international environmental law principles for conservation and management of marine living resources, it provided practical guidance for regional fisheries management organizations (rfmos) on cooperative compliance and enforcement measures. Since the entry into force of the unfsa, a complex pattern of high seas fisheries regulation has continued to emerge as existing rfmos adapt their agreements and institutions to incorporate the new provisions and as new rfmos have been established. Across the southern hemisphere there is a wide variation in the extent to which rfmos have incorporated biodiversity conservation and sustainable use objectives in their agreements and implemented them in the state practice of their members.13

In the shipping sector, the principal environmental protection measure applicable to southern hemisphere abnj is the designation of Antarctic waters as special areas under Annexes i and ii of the International Convention for the Prevention of Pollution from Ships (marpol 73/78).14 This sectoral measure predates the more holistic measures taken by the Commission for the Conservation of Antarctic Marine Living Resources (ccamlr) to designate mpas in the Antarctic Ocean, but can be viewed as essentially complementary to those measures. For the deep seabed mining sector, the only exploration contractor sites in the southern hemisphere are in the Indian Ocean. No environmental management plan has been developed for this area as yet but a recent discussion paper and draft environmental regulations issued by the International Seabed Authority in January 2017 has foreshadowed the development of regional environmental management plans for exploration and exploitation sites in the Area.15

In addition to the sector-based instruments, a variety of instruments and arrangements in the southern hemisphere are focused on oceanic conservation, but only some of these apply to abnj. The geographic scope of regional seas organizations in the southern hemisphere is predominantly limited to marine areas within national jurisdiction with the one exception being the 1986 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Nouméa Convention)16 and the associated South Pacific Regional Environment Programme (sprep), which cover the high seas areas enclosed by the exclusive economic zones (eezs) of its member States.17

Taking into account the articles contained in this special issue, this section provides an overview of the biodiversity conservation provisions of key ocean governance instruments and arrangements in selected regions of the southern hemisphere and some of the measures taken to implement those provisions. It also reviews the challenges confronted by these regions in implementing these provisions. Finally, it highlights the interconnections between regional institutions established under these instruments, particularly in relation to biodiversity conservation and sustainable use obligations in abnj.

South West Pacific

The South West Pacific region is characterised by vast tracts of ocean space dotted with land masses which range from the continent of Australia and the sizeable island nation of New Zealand, to small-island developing States, such as Tuvalu and Niue.18 The majority of small-island States in the South West Pacific have land areas under 700 square kilometres and are heavily dependent on a healthy marine environment for their survival.19 The region has one of the highest quotients of marine biodiversity in the world, with a large population of rare and endangered species such as dugongs, turtles and whales.20 The eezs and high seas areas of the region contain some of the world’s largest stocks of tuna which have been subject to exploitation by distant-water fishing nations.21 The region also hosts a variety of vulnerable marine habitats, such as seamounts, hydrothermal vents and submarine trenches, many of which are in abnj.22 The abundant marine biodiversity of the region is subject to multiple stress factors, including marine pollution from land- and sea-based sources, unsustainable fisheries practices, climate change impacts, natural disasters and alien species invasion.23 Many of the small island nations in the region have only attained independence in recent decades and their capacity to fund and manage environmental protection programmes is severely limited.24 Much of the finance and technical expertise for environmental management is provided by the developed countries in the region and other sources of international aid.25

Notwithstanding these challenges, the South West Pacific displays a high level of coherence among its regional institutions devoted to ocean governance and ongoing political commitments exist among Pacific Island States to work towards marine biodiversity conservation and sustainable use within and beyond national jurisdiction.26 These commitments are underpinned by modern international environmental law principles and management approaches in instruments such as the Nouméa Convention and the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (wcpfc).27 Despite these positive regional attributes, key constraints, including deficiencies in human, financial and technical resources and extra-regional influences, continue to militate against realising biodiversity conservation and sustainable use within and beyond national jurisdiction.

The Nouméa Convention anticipates the collaboration of its parties in protecting the marine environment of the whole Convention Area, including its high seas enclaves. It commits its parties to prevent, reduce and control pollution of the Convention Area from any source and to ensure sound environmental management of natural resources.28 Although the Nouméa Convention pre-dates the 1992 Convention on Biological Diversity (cbd) signed at Nairobi29 and its codification of biodiversity protection, Article 14 of the Nouméa Convention reflects some of the key concepts associated with an integrated and ecosystem-based approach to ocean management by providing that parties shall take all appropriate measures to protect and preserve rare and fragile ecosystems and depleted, threatened and endangered flora and fauna as well their habitat in the Convention Area. Article 14 also recommends that parties establish protected areas or regulate any activities likely to have adverse effects on the species, ecosystems or biological processes of such areas. The Nouméa Convention and the associated sprep demonstrate a strong initial expression of political will and the necessary institutional basis for further integrated environmental protection across the South Pacific region, but they have faced substantial resource and capacity challenges in implementation.30

The wcpfc was the first comprehensive conservation and management regime for highly migratory fish stocks, such as tuna, in Pacific abnj areas. The area of competence of the wcpfc covers a large swathe of the Pacific Ocean in the southern hemisphere, including a large area of high seas lying outside and between the 200–nautical-mile eezs of its Parties.31 The wcpfc Commission is empowered to adopt principles and measures for conservation and management of the highly migratory fish stocks in its area of competence which reflect key international environmental law principles and biodiversity conservation and sustainable use objectives.32 The Commission must apply the precautionary principle and determine the impact of fishing activities on target and associated or dependent species and their environment and adopt plans where necessary to ensure the conservation of species and protect habitats of special concern.33 The conservation measures to be taken by the Commission also include those which protect biodiversity in the marine environment and which assess the impact of fishing activities on other species belonging to the same ecosystem.34

Although the wcpfc provisions are progressive in terms of biodiversity conservation and sustainable use in abnj, implementation of relevant conservation and management measures has proven to be challenging. Quirk and Harden Davies in this special issue refer to a conservation and management measure (cmm) proposed by the wcpf Commission in 2008 capping fishing efforts for big eye and yellow fin tuna in the Convention Area and closing the high seas enclaves in its area of competence to tuna fishing. This proposed cmm faced objections from distant-water fishing nation (dwfn) members of wcpfc and was substantially diluted in its final form. Pacific Island parties to the subregional Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest (pna Agreement)35 managed to circumvent the inherent weaknesses in this wcpfc cmm by introducing an innovative arrangement to prevent purse seine vessels licensed by pna member States to fish for tuna in their eezs from fishing the high seas between 10 degrees N to 20 degrees S of the Western Central Pacific.

In recent years, additional initiatives have been taken at the Pacific-wide regional level to coalesce political will around oceanic conservation and sustainable use of marine resources. Quirk and Harden Davies in this issue review the evolution of the Pacific Islands Regional Oceans Policy (pirop)36 and the associated Framework for a Pacific Oceanscape (fpo),37 which together form the basis for a more integrated and cross-sectoral approach to regional oceans governance across the Pacific region. These policy instruments have been complemented by the creation of the Office of the Pacific Ocean Commissioner38 to strengthen policy coordination in regional ocean governance, and the Pacific Ocean Alliance,39 which is a mechanism for more inclusive consultation among States and other regional stakeholders on technical and policy advice concerning regional ocean governance. Successive iterations of the fpo have focused on marine biodiversity conservation and sustainable use within and beyond national jurisdiction and many of the issues covered have resonated with key elements being discussed in the Preparatory Committee meetings for the ilbi, including representative networks of mpas and eia. As Quirk and Harden Davies note, the high level of regional coherence among the Pacific Small Island Developing States (psids) has enabled them to play a very active role in the Preparatory Committee meetings for the ilbi.

South East Pacific

The South East Pacific region extends along the full length of the Pacific coast of South America—from Panama to Cape Horn off the coasts of Chile, Peru, Ecuador, Colombia and Panama—with the majority of the region lying in the Southern Hemisphere.40 As Durussel notes in this special issue, it supports one of the world’s most productive fisheries with the potential sustainable fisheries yield in 2013 estimated to be 8.9 million tonnes.41 In addition to its high fisheries quotient, the region also hosts multiple species of shellfish, birds, marine mammals, algae and reptiles.42 Two deep sea trenches, off the coasts of Peru, Chile and Central America and off the coasts of Ecuador and Colombia, host some of the world’s most unique species, habitats and ecosystems.43

The regional ocean governance framework is comprised of two rfmos, the Inter-American Tropical Tuna Commission (iattc), the more recently established South Pacific Regional Fisheries Management Organisation (sprfmo) and a regional seas organisation, the Comisión Permanente del Pacifíco Sur (Permanent Commission for the South Pacific) (cpps).44 The two rfmos have jurisdiction respectively over high seas tuna and non-tuna fisheries resources in South East Pacific abnj. cpps is an advisory body with no formal jurisdictional responsibility over marine biodiversity in abnj but as Durussel notes, its member States have committed to developing a broad regional vision on marine policy which would encompass their interests in living and non-living resources in abnj.

The Convention on the Conservation and Management of High Seas Living Resources in the South Pacific Ocean (sprfmo Convention)45 entered into force in August 2012. The Convention area comprises the region of the South Pacific beyond areas of national jurisdiction encompassing an area of around 59 million square kilometres.46 Non-highly migratory fisheries species managed by the South Pacific Regional Fisheries Commission (sprfmo) include pelagic species such as jack mackerel, chub mackerel, jumbo flying squid and other squid species. The marine environment is quite diverse, ranging from the fine muddy sediments of the deep sea floor, which host a variety of microscopic single-celled and shelled animals, to the seamounts, banks, and ridges at shallower depths which are home to bottom-dwelling invertebrates such as lobsters and crabs, and bottom-dwelling fish such as orange roughy and alfonsino.47 The Convention incorporates provisions which reflect a commitment to improved biodiversity conservation and sustainable use of marine living resources in abnj. Biodiversity conservation is highlighted in Article 20 (c) and (d) of the sprfmo Convention which provides that the cmms adopted by the Commission shall include measures to:

(c) maintain or restore populations of non-target and associated or dependent species to above levels at which their reproduction may become seriously threatened; and

(d) protect the habitats and marine ecosystems in which fishery resources and non-target and associated or dependent species occur from the impacts of fishing, including measures to prevent significant adverse impacts on vulnerable marine ecosystems and precautionary measures where it cannot adequately be determined whether vulnerable marine ecosystems are present or whether fishing would cause significant adverse impacts on vulnerable marine ecosystems.

Consistent with its biodiversity conservation obligations, sprfmo has already adopted a wide range of cmms in relation to bottom fishing, the management of jack mackerel, the banning of gillnetting, the collection of detailed fishing data, inspections in port and at sea, transshipments, a Vessel Monitoring System, an Illegal, Unreported and Unregulated (iuu) (fisheries) List, vessels without nationality, minimising the bycatch of seabirds and establishing a compliance and monitoring scheme.48 It has also begun to establish formal and informal links with other rfmos in the region and beyond and has extended observer status to cpps and a range of relevant intergovernmental organizations (igos) and non-governmental organizations (ngos).49 A recent unep-wcmc report notes that significant potential still remains for further intra- and cross-sectoral cooperation between sprfmo and other regional and global bodies.50

The iattc Convention (Antigua Convention), which entered into force in 2010, also contains biodiversity conservation obligations.51 In particular, it obligates the iatt Commission to adopt as necessary “Conservation and management measures and recommendations to maintain or restore populations of dependent, associated, or same ecosystem species that are likely to be affected by fishing activities.”52 Since the entry into force of the Antigua Convention, iattc has adopted a range of cmms relating to the conservation of associated and dependent species, including sharks, seals, turtles, and to incidental seabird mortality.53 It has forged targeted intra-sectoral links with other tuna rfmos. Its strongest cooperative relationship is with wcpfc, the other tuna rfmo covering the Pacific Ocean, but it also has a memorandum of understanding (mou) with cpps that is mainly focused on mutual training opportunities.54

The 1981 Convention on the Protection of the Marine Environment and Coastal Area of the South East Pacific (Lima Convention)55 and the South East Pacific Action Plan were originally adopted by Chile, Ecuador and Peru in 1981 to provide a legal and institutional framework for the marine environmental protection of the region.56 Panama and Colombia have since joined the Lima Convention. The cpps is the institutional body implementing the Convention and Action Plan and acts as a coordinating mechanism designed to harmonise and align the marine policy of its members.57 The parties to the Lima Convention have consistently evinced an interest in the conservation and sustainable use of marine biodiversity in adjacent abnj through a series of declarations, but this has not resulted in concrete cmms as the cpps does not have any jurisdictional competence in abnj.58

cpps has a broad array of cross-sectoral connections with global and regional organizations including iattc, sprfmo, ccamlr, Organization of Fishing and Aquaculture in Central America (ospesca), cbd, the United Nations Environment Programme (unep), the Food and Agriculture Organization (fao), the Intergovernmental Oceanographic Commission (ioc) and the World Meteorological Organization (wmo), as well as the relevant ngos.59 The experience gained by cpps in coordinating national marine policies, as well as collaborating with multiple global and regional organizations on conservation and sustainable use of marine biodiversity, places it in a prime position to coordinate implementation of the ilbi in the South East Pacific.60

Southern Ocean

The Convention for the Conservation of Antarctic Marine Living Resources (camlr)61 explicitly adopts a precautionary and ecosystem-based approach to marine living resource management which recognises the complex interconnections between all parts of the Antarctic ecosystem.62 Since its inception in 1982, ccamlr has adopted a suite of innovative measures to implement its ecosystem-based approach to conservation and sustainable use of marine living resources in the Antarctic treaty area. These include banning destructive fisheries practices such as bottom trawling, mandating measures to reduce incidental seabird mortality caused by baited hooks in long-line fishing, and monitoring the effects of fishing on non-target species by collection of data on ccamlr member state fishing vessels where the risk to by-catch species is thought to be too great.63 In accordance with the unga Resolutions 61/105 and 64/72,64 ccamlr has also established several high seas bottom fisheries closures in the ccamlr area.65 Commercial bottom trawling is prohibited within the ccamlr area and restrictions apply to long-line fishing.66

As a first step in creating a network of mpas in the ccamlr area, ccamlr established an mpa covering the southern shelf of South Orkney Island in 2009.67 As Johnson notes in this special issue, this was followed by the creation in 2016 of the world’s largest mpa beyond national jurisdiction in the Ross Sea, covering a total area of 1.55 million square kilometres.68 Two further proposals for the establishment of mpas in the east and west Antarctic were submitted at the 2016 ccamlr meeting, foreshadowing the first network of representative mpas in abnj, an objective which has consistently been discussed in the bbnj Working Group and Preparatory Committee meetings.69

Johnson notes in this special issue that ccamlr has an extensive network of links with both tuna and non-tuna rfmos, including iattc, wcpfc and sprfmo, and with the Convention on Migratory Species (cms)70 subsidiary agreement, the Agreement on Conservation of Albatrosses and Petrels (acap).71 It has also granted observer status to a wide range of global and regional organizations for its annual meetings. As Johnson suggests, the relationship between the Antarctic Treaty System (ats), including ccamlr and the future ilbi, will be a delicate one which will involve not only straining the fabric of the ats but also maximising the benefits to be gained from an established regime for conservation and sustainable use of marine biodiversity in abnj across all the world’s oceans.

Western Indian Ocean

The Western Indian Ocean is characterised by the long continental coastlines of South Africa, Kenya and Somalia on the eastern side of the African continent, and by remote small islands and groups of islands such as the Comoros Islands, the Seychelles, the Maldives, the Chagos archipelago, Réunion and Mauritius.72 This oceanic region is recognised as a centre of biodiversity which hosts an array of distinctive species including dugongs, different species of sea turtles, the coelacanth and endemic molluscs, such as the double harp and the violet spider conch, as well as cetaceans and reef fish.73 The waters between Madagascar and Africa have been estimated to contain one of the highest levels of coral diversity worldwide, with 369 coral species identified in a recent study and more still to be identified.74 The key threats to the region’s biodiversity are unsustainable fisheries practices and climate change impacts. Pelagic fish stocks, particularly shark and tuna, have been heavily exploited by local and distant-water fishing fleets and the region’s coral reefs have been subject to several coral bleaching events in recent decades.75

Wright and Rochette in this special issue describe the regional ocean governance architecture for the Western Indian Ocean region, whose key elements comprise the Nairobi Convention76 for the protection, management and development of the coastal and marine environment of the Western Indian Ocean, the Indian Ocean Tuna Commission (iotc) and the Southern Indian Ocean Fisheries Agreement (siofa).77 A variety of other bodies, including the Indian Ocean Commission, the Consortium for the Conservation of Coastal and Marine Ecosystems in the Western Indian Ocean (wio-c), the Western Indian Coastal Challenge and the Western Indian Ocean Marine Science Association have interests in and conduct research on regional marine biodiversity.78 Although the Nairobi Convention and several of the other non-fisheries bodies have begun to focus on conservation and sustainable use of marine biodiversity in abnj in recent years, no regional mechanism exists to coordinate their activities.79 The only clear jurisdictional responsibilities for conservation and sustainable use of marine biodiversity in the Western Indian Ocean abnj rest with siofa and iotc.

siofa entered into force in June 2012 and covers the majority of high seas areas in the Southern Indian Ocean. The objectives of siofa are to ensure the long-term conservation and sustainable use of the fishery resources in its area of responsibility taking into account the needs of developing States bordering the siofa area that are Contracting Parties to the Convention and in particular the least developed among them and small-island developing States.80 siofa covers fishery resources including fish, molluscs, crustaceans and other sedentary species within its area of responsibility, but excludes highly migratory species and sedentary species subject to the fishery jurisdiction of coastal states.81 The Agreement adopts the precautionary approach and provides that biodiversity in the marine environment shall be protected.82 siofa is still at an early stage of development and limited in its capacity to pass cmms which fulfil its biodiversity conservation and sustainable use obligations in abnj.83

Although siofa has not yet adopted high seas bottom fisheries closures to protect vulnerable marine ecosystems (vmes), the Southern Indian Ocean Deep Sea Fishers Association (siodfa), consisting of the five commercial fishing operators in the region, has declared 13 areas in the Southern Indian Ocean as voluntary benthic protected areas and the siofa Scientific Committee has recommended that three of these areas be closed to fishing.84 siofa has articulated plans to connect with a broad network of ocean governance organizations at global and regional levels.85

The Indian Ocean Tuna Commission (iotc) is a tuna rfmo, established under Article xiv of the fao Constitution, which started operation in 1996. Its objective is to ensure, through appropriate management, the conservation and optimum utilisation of tuna and tuna-like species in the Indian Ocean.86 A unep-wcmc report notes that its mandate has recently been expanded de facto to include data collection and conservation measures for associated species, including sharks, seabirds and turtles, but that sustainable development of tuna and tuna-like species in its area of competence remains the primary objective of the organization.87 Although iotc is beginning to develop some cross-sectoral relationships on issues such as seabird mortality, it is still at an early stage in building cooperative relationships with other global and regional organizations concerning biodiversity conservation and sustainable use in the Western Indian Ocean region.88

The key challenges facing the Western Indian Ocean region in bbnj governance are in further developing its scientific, technical and resource capacity and coordinating the policy mandates and efforts of the multiple bodies involved in conservation and sustainable use of biodiversity in the region. Stronger links with global and regional organizations at a more advanced stage in implementing biodiversity conservation and sustainable use measures could foster similar capacities in the region.89

South Atlantic Ocean

The South Atlantic Ocean generally covers the area south of the equator and north of the Antarctic Convergence.90 Turra et al. in Chapter 36B of the First Global Integrated Marine Assessment note that the main topographical feature in the South Atlantic is the Mid-Atlantic Ridge which runs between Africa and South America from approximately 58 degrees south to Iceland in the north.91 The predominant currents and upwelling processes in the South Atlantic provide varied habitats for pelagic biodiversity and productive fisheries.92 Benthic communities beyond the continental shelf break in the South Atlantic are not as well understood at this stage due to lack of research.93

As Ribeiro notes in this special issue, the ocean governance framework of the South Atlantic is quite sparse with no regional seas organization covering any part of abnj and no non-tuna rfmo covering the South West Atlantic.94 The 2001 Convention on the Conservation and Management of the Fisheries Resources in the South East Atlantic Ocean (seafo Convention), which entered into force in April 2003, covers a large proportion of the high seas of the South East Atlantic Ocean.95 The objective of the seafo Convention is to address the long-term conservation of straddling fish stocks and discrete high seas fish stocks such as alfonsino, orange roughy, arrowhead, wreck fish, deep water hake and red crab in the geographic area covered by the Convention, but not the conservation of highly migratory stocks in this area which are subject to the jurisdiction of the International Commission for the Conservation of Atlantic Tunas (iccat).96 Under the general principles contained in Article 3 of the seafo Convention, the Contracting Parties must adopt measures based on the best scientific evidence available for the long-term conservation and sustainable use of the fisheries resources covered by the Convention and apply the precautionary approach. The need to maintain other components of the marine ecosystems to which the fisheries resources belong is also recognised in the General Principles of the Convention. Contracting Parties must take account of the impact of fishing on ecologically related species such as seabirds, cetaceans and seals, adopt where necessary measures for species belonging to the same ecosystem, protect biodiversity in the marine environment and ensure that fisheries practice and management measures take account of the need to minimise harmful impacts on marine living resources as a whole.97

The seafo Convention contains other progressive features, including a requirement for Contracting Parties to provide an explanation of their reasons for not accepting cmms agreed by the majority of Contracting Parties, reciprocal high seas boarding and inspection procedures between Contracting Parties for each other’s flag vessels and an observer program.98 The Convention also provides for port State measures to prohibit the landing and transshipment of catch taken by non-Contracting-party vessels in a manner undermining the effectiveness of cmms established under the seafo Convention.99 Wright et al. note that seafo has closed 11 seamount areas in its area of competence where vmes are present.100 As with sprfmo, seafo has delineated its bottom fishing footprint and has also introduced exploratory fishing protocols for previously unexploited areas.101 Although there is no rfmo in the South West Atlantic, Spain has closed 9 areas to bottom fishing for its vessels fishing in the South West Atlantic.102 Given the significant gaps in the ocean governance framework covering the South Atlantic, the region stands to benefit immensely from the broader scientific, technical and financial resources that could be directed to biodiversity conservation and sustainable use in abnj under the ilbi.

The Role of the ilbi in Developing More Integrated and Cross-Sectoral Frameworks for Marine Biodiversity Conservation and Sustainable Use in Southern Hemisphere abnj

With the right mix of flexible and supportive provisions tailored to the needs of particular regions and sectors, the ilbi has the potential to enhance and lift the performance of existing governance frameworks for biodiversity conservation and sustainable use in the southern hemisphere. At a minimum, the ilbi could contain international law principles and standards on conservation and sustainable use of marine biodiversity in abnj which are generally applicable to all States Parties. The high seas principles recommended by the International Union for Conservation of Nature (iucn)103 provide a widely accepted starting point for relevant international law norms and could be operationalised in other provisions of the ilbi. The ilbi could also provide an important focal point for global regional and sectoral organisations with responsibilities for conservation and sustainable use of marine biodiversity in abnj through establishing a Conference of the Parties (cop) which meets regularly and has the power to take decisions on the different elements of the ilbi. The cop could establish regular as opposed to ad-hoc cooperation mechanisms between rfmos and other global and regional organisations such as the International Maritime Organization (imo), the International Seabed Authority (isa) and regional seas organizations, as well as providing a collaborative forum and potential financial support for such organizations to coordinate their efforts on conservation and sustainable use of marine biodiversity in abnj.

The ilbi has the potential to further coalesce global scientific information on marine biodiversity in abnj drawing on data, monitoring and assessment from a wider group of global, regional and sectoral organizations and sharing such information among its States Parties. This broader collation of scientific information could provide environmental baselines for different regions in abnj against which to measure the cumulative impacts of human activities on marine biodiversity in abnj over time. The collation of this information has already begun with initiatives such as the ebsa process undertaken by the cbd,104 the various Global Ocean assessments undertaken by the un105 and the Global Ocean Biodiversity Initiative (gobi).106 A broader picture of marine biodiversity in abnj could provide a more informed basis for strategic environmental planning and biodiversity conservation action plans across the whole of abnj. For example, access to combined information on shipping, fisheries and climate change impacts on a particular seamount in abnj could enable a suite of complementary conservation measures to be developed by the relevant sectoral and regional organizations in that area. A central repository of information on marine biodiversity in abnj could also highlight deficiencies in biodiversity conservation across abnj and initiate measures to mitigate adverse impacts on species, habitats and ecosystems not protected by existing regional and sectoral organizations. Some discrete high seas fish stocks not covered by existing rfmos and sedentary species would be clear beneficiaries of such measures.

The Role of the ilbi in the South West Pacific

The South West Pacific is distinguished by the high level of coherence and integration between its regional institutions, including those related to oceans governance and biodiversity conservation.107 Collective support for the Pacific Islands Forum and the Council of Regional Organisations of the Pacific (crop) have created the political conditions necessary for cross-sectoral cooperation and coordination of policies across the marine sector. Quirk and Harden Davies in this special issue comment that this regional coherence has also become apparent in the Preparatory Committee meetings for the ilbi and the negotiations for the Sustainable Development Goals (sdgs) where the psids have operated as a bloc and pursued consensus positions. With this background in mind, they argue that the ilbi should be framed so as to form constructive links with the existing cohesive ocean governance instruments and institutions in the South West Pacific. They suggest that if the iucn-recommended high seas principles were to be included in the ilbi, this would create a strong link between the South West Pacific regional ocean governance system and the ilbi, as these principles are already reflected in the pirop and its implementing action plan, the fpo.108

They also raise the issue of compatibility between the biodiversity conservation and sustainable use measures already in place in the South West Pacific within the national jurisdiction of Pacific Island Countries (pics) and any new measures introduced by the ilbi for abnj to ensure that the economic, political and conservation interests of the pics are not undermined and high standards of biodiversity conservation are not diminished. The ilbi also has the potential to strengthen and revive regional institutions and initiatives for biodiversity conservation both within and beyond national jurisdiction such as sprep and the South Pacific Whale Sanctuary. Through its area-based management provisions, the ilbi could potentially provide more global legitimacy for existing high seas fisheries closure areas under the Nauru Agreement.

Effective conservation and sustainable use of marine biodiversity in all regions depends on access to relevant scientific data and knowledge to make informed decisions on cmms. Access to a sufficiently broad scientific knowledge base, combined with trained staff, appropriate technology and financial support, are critical for maintaining the long-term integrity of marine biodiversity within and beyond national jurisdiction. Harden Davies in this special issue explores the barriers facing South West Pacific sids in participating in global scientific research on abnj, particularly as they relate to mgr. She argues that the ilbi represents an opportunity to strengthen systems for global scientific capacity development and technology transfer related to marine biodiversity in abnj. A new version of technology transfer could be engendered by the ilbi based on open data, innovation and greater collaboration in the generation, sharing and application of scientific knowledge related to marine biodiversity in abnj.109 Harden Davies advocates the introduction of regional needs assessments among the member States of the ilbi to match existing marine technology resources to current needs in particular regions.

She also argues that strengthening links between regional institutions, scientists and technical personnel in the South West Pacific and international organizations, such as ioc, is critical to elevating scientific and technical capacity among the psids. In the case of the South West Pacific, Harden Davies suggests that this could be achieved by increasing the involvement of psids in ioc-westpac through region-specific scientific investigations and training programs. The ilbi could contain provisions establishing regional marine science and technology clusters and fostering international research collaborations on marine biodiversity in abnj which could alleviate some of the constraints currently facing researchers in the South West Pacific. Harden Davies recognises that strengthened scientific collaboration, technology transfer and capacity developments will all depend on appropriate funding mechanisms. She suggests that the ilbi could create its own funding mechanism for technology transfer and capacity development purposes based on existing mechanisms such as the Global Environment Facility (gef) and the unesco-ioc Capacity Development Fund or source funding from these global bodies for specific initiatives.

The Role of the ilbi in the South East Pacific

Both Durussel et al. in this special issue and a recent unep-wcmc report on ‘Governance of areas beyond national jurisdiction for biodiversity conservation and sustainable use’ acknowledge the relatively limited levels of cooperation among the regional organizations with ocean governance responsibilities in the South East Pacific.110 Durussel et al. do note, however, that the complementary nature of the geographical scope and functional mandates of the three key ocean governance organizations in the region can be used positively to strengthen conservation and sustainable use of marine biodiversity in abnj. They propose several options for strengthening regional cooperation around the four main elements of the bbnj package. First, a working group or task force should be set up between the three organizations to develop common approaches to the establishment and implementation of key elements in the bbnj package, including abmt, eia, access to and distribution of mgr sourced from abnj and transfer of technology and capacity building across all elements of the bbnj package. This would facilitate such measures as a comprehensive and cross-sectoral network of abmt, standardisation of eia processes for fisheries and other activities and a regional framework for access to and benefit sharing of mgrs sourced from abnj through cooperative development of work programmes, scientific criteria, monitoring schemes and management plans. A decision by the unga to convene an intergovernmental conference to negotiate the ilbi would no doubt supply the precursor for this development to occur.

Durussel et al. also suggest that the three regional organizations establish a common scientific and data exchange mechanism, as well as a monitoring programme, to ensure that environmental and climatic information necessary for both fisheries management and biodiversity conservation is available to all three bodies. Once established, the scientific information repository of the ilbi should be able to supplement and benefit from this common data base. Durussel et al. also suggest extending and further implementing the existing mandates of the three key regional ocean governance organizations of the South East Pacific in relation to conservation and sustainable use of marine biodiversity in abnj. The unep-wcmc report on ‘Governance of areas beyond national jurisdiction for biodiversity conservation and sustainable use’ recommends that any cross-sectoral collaboration should begin with specific issues based on the mandates and objectives and interests of the three key regional organizations and that one of the organizations might be able to lead or champion specific initiatives for cross-sectoral collaboration.111 The negotiation of the ilbi has the potential to add global legitimacy and impetus to such initiatives.

The Role of the ilbi in the Western Indian Ocean

Wright et al. in this issue identify a range of opportunities to coordinate regional action on conservation and sustainable use of marine biodiversity in abnj. The geographical scope of the Nairobi Convention could potentially be extended into abnj and modalities developed for more extensive cooperation and coordination with global, sectoral and regional organizations such as rfmos, isa, imo and other regional seas organizations. The ilbi could provide the initial impetus for such an extension and ongoing cooperation. As there are currently no high seas bottom fisheries closures in the wio, a cooperative process between siofa, iotc and the Nairobi Convention could be initiated to identify vmes in the region and establish such closures. Once established, the ilbi could support this process by providing scientific and technical information and fostering consultation among the regional bodies. The ilbi could also provide global endorsement for the thirteen benthic protected areas established voluntarily by siodfa and recommend their adoption by siofa.112

From a shipping perspective, Wright et al. suggest that the member States of regional bodies such as the Nairobi Convention could evaluate the shipping threats to marine biodiversity in regional abnj, identify potential associated protective measures (apms) and propose possible particularly sensitive sea areas (pssas) to imo. The ilbi could facilitate this process providing scientific information to support such proposals. Wright et al. point to the four exploration contracts issued by the isa for polymetallic nodules and polymetallic sulphides exploration in the wio. The repository of scientific information on marine biodiversity in abnj developed by the ilbi could assist both the isa and regional organizations, such as the Nairobi Convention, in designating areas of particular environmental interest (apei) and broader conservation measures, such as regional environmental management and biodiversity action plans, in the wio.

The unep-wcmc report on ‘Governance of areas beyond national jurisdiction for biodiversity conservation and sustainable use’ assessed the readiness of regional organizations in the wio for more cross-sectoral cooperation in terms of their political will and respective capacities. It notes that cross-sectoral cooperation to date has typically been ad-hoc and issue-driven, but that most regional organizations with ocean governance responsibilities are open to greater collaboration and area based planning.113 The ilbi could act as a catalyst for further cross-sectoral collaboration in the wio, particularly if it becomes a comprehensive source of scientific information on biodiversity in abnj and is able to provide technical and financial capacity building in area-based management, eia and marine scientific research.

The Role of the ilbi in the South Atlantic

A defining feature of the regional ocean governance architecture of the South Atlantic is its uneven nature.114 Ribeiro in this special issue identifies the complete lack of any regional arrangements for marine environmental protection and sustainable use of fisheries resources in the Southwest Atlantic as a “notorious gap.” Elsewhere in the South Atlantic, the two regional sea conventions, the Cartagena Convention115 and the Abidjan Convention,116 only cover marine areas within national jurisdiction. Whereas seafo is a post-unfsa convention with biodiversity conservation objectives and modern environmental principles embedded within its provisions, it has only seven Contracting Parties of which very few are from the South East Atlantic region.

Ribeiro’s analysis suggests that the role of the ilbi in the South Atlantic could be more fundamental than in other regions, providing the impetus for States to establish the missing components of regional ocean governance and facilitate further accession to existing regional instruments, such as seafo. She also sees the ilbi as providing a global model for best practice marine environmental principles and approaches and a global system for designating mpas and overseeing eias in abnj. Ribeiro foreshadows a role for the ilbi in updating the biodiversity conservation aspects of the high seas fisheries regime.

She argues that the ilbi has the potential to provide greater clarity around the operation of the extended continental shelf regime and the high seas regime for the water column above. She suggests that this could occur through the ilbi setting out reciprocal principles and procedures ensuring the commitment of coastal States to biodiversity conservation on their extended continental shelves consistent with sustainable use of the resources, as well as the commitment of all States Parties to the ilbi to respecting coastal State measures as well as exercising their high seas rights in the water column above the shelf.

More broadly, Riberio envisions the ilbi as pivotal in creating greater cohesion among the various sectors and regions involved in ocean governance both within and beyond national jurisdiction. This will be dependent on the ilbi establishing a viable technology-transfer and capacity-building system to assist developing countries in the South Atlantic and other regions. In effect, the ilbi must act as a vector for the open provision of scientific data and information on marine biodiversity in abnj across regions matching available training and technology with demonstrated needs, particularly in regions with a preponderance of developing States.

The Role of the ilbi in the Southern Ocean

The Antarctic Treaty System (ats) has operated predominantly as a self-contained regime since the adoption of the Antarctic Treaty117 in 1959. As Johnson notes in this special issue, its relationship with the un Convention on the Law of the Sea118 and other global instruments, such as the cbd, has been quite ambiguous. Notwithstanding this ambivalent relationship, the advent of a new global instrument designed to conserve and sustainably use marine biodiversity in abnj could have some benefits for the long-term integrity of the abundant marine biodiversity in the Antarctic.

Johnson discusses the unique characteristics of the Southern Ocean surrounding the Antarctic continent and the uncertain legal status of these waters. Even taking into account the territorial and offshore zones claimed by some Antarctic treaty partners, substantial marine areas beyond national jurisdiction are clearly within the geographic scope of the Antarctic Treaty and camlr. Johnson makes the point that the ats already deals extensively with the conservation and sustainable use of marine biodiversity in the substantial areas of abnj under its responsibility. Conservation and sustainable use of Antarctic living resources are key objectives of the Antarctic Treaty, camlr and the Protocol on Environmental Protection to the Antarctic Treaty.119

In line with its ecosystem-based approach, ccamlr has been in the forefront of designing and designating two mpa areas in the camlr area of responsibility which cover vast areas of abnj.120 The designation and management of these areas by an existing treaty body with both global and regional attributes provide a precedent for the area-based management element of the bbnj package. Other regions which are less advanced in designing and managing mpas in abnj could draw on the ccamlr experience in implementing their own regional plans under the ilbi.

Johnson notes that by contrast to the designation of mpas, the ats has not yet grappled seriously with issues related to access to and distribution of mgr benefits. Any developments in relation to these issues under the ilbi will therefore be of interest to the ats and may influence the treatment of mgr within the ats. Although the potential for close interaction between the ats and the ilbi seems unlikely in view of the relative autonomy of the ats to date, some positive cooperation could evolve over time on particular issues, such as area-based management and access to and distribution of mgr benefits.

Conclusion

This special issue focuses on biodiversity conservation initiatives taken by southern hemisphere institutions and the degree to which connections have been forged between the relevant institutions with responsibilities for biodiversity beyond national jurisdiction in the most oceanic of the two hemispheres. The above overview of selected instruments, institutions and arrangements in the southern hemisphere and the articles in this special issue reveal that governance frameworks for conservation and sustainable use of marine biodiversity in the southern hemisphere vary widely in their biodiversity conservation activities and coherence across sectors and regions.

The articles also examine the potential relationship of the ilbi with this selection of regional ocean governance arrangements and institutions in the southern hemisphere and the benefits of such interaction for the conservation and sustainable use of marine biodiversity at the regional and global scales. The ilbi represents a historic opportunity to lay the foundations for a more integrated and cross-sectoral system of oceans governance in abnj globally and in the southern hemisphere. Given the growing threats and pressures of anthropogenic activities on southern hemisphere abnj and its biodiversity, the realisation of this objective is critical to ensuring the long-term integrity and productivity of the vast ocean areas south of the equator.

1

United Nations General Assembly, Development of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, resolution adopted by the General Assembly on 19 June 2015, ga Res 69/292, 69th sess. Agenda Item 74(a), A/Res/69/292 (6 July 2015). See also https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/187/55/PDF/N1518755.pdf?OpenElement (accessed 31 May 2017).

2

Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, Chair’s indicative suggestions of clusters of issues and questions to assist further discussions in the informal working groups at the second session of the Preparatory Committee, http://www.un.org/Depts/los/biodiversity/prepcom_files/IWGs_Indictive_Issues_and_Questions.pdf (accessed 31 May 2017).

3

unga Res 69/292 (n 1) at paragraph 3.

4

S Rintoul, W Cai, H Cleugh and G Tan, ‘New Research Centre Focuses on the “Ocean Hemisphere’ (22 May 2017) ecos Issue 231 Climate, Global Warming Oceans, https://blogs.csiro.au/ecos/cshor/ (accessed 31 May 2017).

5

ER Selig, WR Turner, S Troeng, B P Wallace, BS Halpern, K Kaschner, BG Lascelles, KE Carpenter and RA Mittermeier, ‘Global Priorities for Marine Biodiversity Conservation’ (2014) PLoS ONE 9(1): e82898, https://doi.org/10.1371/journal.pone.0082898.

6

F Ramirez, I Afan, L S Davis and A Chiaradia, ‘Climate Impacts on Global Hot Spots of Marine Biodiversity’ (2017) 3(2) Science Advances, e1601198, doi: 10.1126/sciadv.1601198.

7

Ibid.

8

Ibid.

9

DC Dunn, J Ardron, N Bax, P Bernal, J Cleary, I Cresswell, B Donnelly, P Dunstan, K Gjerde, D Johnson, K Kaschner, B Lascelles, J Rice, H von Nordheim, L Wood and PN Halpin, ‘The Convention on Biological Diversity’s ecologically or biologically significant areas: origins, development and current status’ (2014) 49 Marine Policy 137–145.

10

N J Bax, J Cleary, B Donnelly, D C Dunn, P K Dunstan, M Fuller and P N Halpin, ‘Results of efforts by the Convention on Biological Diversity to describe ecologically or biologically significant marine areas’ (2016) 30(3) Conservation Biology 571–581.

11

Ibid., at 580.

12

United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York, 8 September 1995, in force 11 December 2001) 2167 unts 3 (‘unfsa’).

13

R Warner, K M Gjerde and D Freestone, ‘Regional Governance for Fisheries and Biodiversity’ in S M Garcia, J Rice and A Charles (eds), Governance of Marine Fisheries and Biodiversity Conservation (Wiley Blackwell, Chichester, 2014) 211–224.

14

International Convention for the Prevention of Pollution from Ships (London, 1 June 1978, Annex I in force 2 October 1983, Annex ii in force 6 April 1987, Annex iii in force 1 July 1992, Annex iv in force 27 September 2003, Annex v in force 31 December 1988, Annex vi in force 19 May 2005) (1978) 17 ilm 546 (‘marpol 73/78’).

15

International Seabed Authority, ‘Developing a Regulatory Framework for Mineral Exploitation in the Area. A Discussion Paper on the Development and Drafting of Regulations on Exploitation for Mineral Resources in the Area (Environmental Matters)’(25 January 2017), https://www.isa.org.jm/files/documents/EN/Regs/DraftExpl/DP-EnvRegsDraft25117.pdf (accessed 31 May 2017).

16

Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Nouméa, 24 November 1986, in force 22 August 1990) (1987) 26 ilm 41 (‘Nouméa Convention’).

17

Ibid., at Article 2(a)(ii).

18

R Herr, ‘Environmental Protection in the South Pacific: the Effectiveness of sprep and its Conventions’ in O S Stokke and O B Thommessen (eds), Yearbook of International Cooperation of Environment and Development 2002/3 (Earthscan Publications Ltd., London, 2002) 41–43.

19

T I Tutangata and M Power, ‘The Regional Scale of Ocean Governance: Regional Cooperation in the Pacific Islands’ (2002) 45(11) Ocean and Coastal Management 873–884.

20

sprep, ‘Our Ocean Biodiversity: Pacific Conversations with SPREP’, http://www.sprep.org/biodiversity-ecosystems-management/our-ocean-biodiversity-pacific-conversations-with-sprep (accessed 31 May 2017).

21

Herr (n 18) at 43.

22

Ibid.

23

sprep, ‘Pacific Biodiversity, Including Marine and Coastal Life’, http://www.sprep.org/attachments/Publications/FactSheet/Oceans/pacific-biodiversity-including-marine-coastal-life.pdf (accessed 31 May 2017).

24

Herr (n 18) at 43.

25

Ibid.

26

R Mahon, L Fanning, KM Gjerde, O Young, M Reid and S Douglas, ‘Transboundary Waters Assessment Programme(twap) Assessment of Governance Arrangements for the Ocean, Volume 2: Areas Beyond National Jurisdiction’ (unesco-ioc Technical Series, Paris, 2015) 1–119, xi, 43 and 51.

27

Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Honolulu, 5 September 2000, in force 19 June 2004) (2001) 40 ilm 277 (‘wcpfc Convention’).

28

Nouméa Convention, Article 5(1).

29

Convention on Biological Diversity (Nairobi, 22 May 1992, in force 29 December 1993) (1992) 31 ilm 822 (‘cbd’).

30

Tutangata and Power (n 19) at 879.

31

wcpfc Convention, Article 3.

32

Ibid. at Article 5(a) and (b).

33

Ibid. at Articles 5(c) and 6.

34

Ibid. at Article 5(f) and (d).

35

Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest (Nauru, 11 February 1982, in force 4 December 1982), latest version available at http://www.pnatuna.com/sites/default/files/Latest%20Nauru%20Agreement_0.pdf (‘Nauru Agreement’).

36

Pacific Islands Forum Secretariat, Pacific Islands Regional Oceans Policy, http://www.forumsec.org/resources/uploads/attachments/documents/PIROP.pdf (accessed 31 May 2017).

37

Pacific Islands Forum Secretariat, Framework for a Pacific Oceanscape, http://www.forumsec.org/resources/uploads/embeds/file/Oceanscape.pdf (accessed 31 May 2017).

39

Pacific Islands Forum Secretariat, Pacific Ocean Alliance, http://www.forumsec.org/resources/uploads/embeds/file/Pacific_Ocean_Alliance_Charter.pdf.

40

United Nations Environment Programme (unep) Regional Seas, South East Pacific, http://drustage.unep.org/regionalseas/south-east-pacific (accessed 1 June 2017).

41

Ibid.

42

Ibid.

43

Ibid.

44

unep-wcmc, Governance of areas beyond national jurisdiction for biodiversity conservation and sustainable use: Institutional arrangements and cross-sectoral cooperation in the Western Indian Ocean and the South East Pacific (Cambridge: un Environment World Conservation Monitoring Centre, 2017) 71–72.

45

Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (Auckland, 14 November 2009, in force 24 August 2012) ats 28 (‘sprfmo Convention’).

46

sprfmo Convention, Article 5.

47

sprfmo, About sprfmo, https://www.sprfmo.int/about/ (accessed 1 June 2017).

48

sprfmo, Conservation Measures, https://www.sprfmo.int/conservation-measures/ (accessed 1 June 2017).

49

unep-wcmc report (n 44) at 85.

50

Ibid. at 86.

51

Convention for the Strengthening of the Inter-American Tropical Tuna Commission established by the 1949 Convention between the United States of America and the Republic of Costa Rica (Washington, dc, 27 June 2003, in force 27 August 2010, available at https://www.iattc.org/PDFFiles2/Antigua_Convention_Jun_2003.pdf (‘iattc, Antigua Convention’).

52

Antigua Convention, Article vii (1)(f).

53

unep-wcmc Report (n 44) at 82.

54

Ibid. at 83.

55

Convention on the Protection of the Marine Environment and Coastal Area of the South East Pacific (Lima, 12 November 1981, in force 19 May 1986) 33 International Digest of Health Legislation (1982) 96 (‘Lima Convention’).

56

unep-wcmc Report (n 44) at 76–78.

57

Ibid.

58

Ibid.

59

Ibid. at 79–80.

60

Ibid. at 80.

61

Convention for the Conservation of Antarctic Marine Living Resources (Canberra, 20 May 1980, in force 7 April 1981) (1980) 19 ilm 837 (‘camlr’).

62

Ibid. at Article ii(3).

63

ccamlr, Conservation Measures, https://www.ccamlr.org/en/conservation-and-management/conservation-measures (accessed 1 June 2017).

64

unga Resolution 61/105, ‘Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments’, A/RES/61/105(2006); unga Resolution 64/7,’Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments’, A/RES/64/72 (2009).

65

G Wright, J Ardron, K Gjerde, D Currie and J Rochette, ‘Advancing marine biodiversity protection through regional fisheries management: A review of bottom fisheries closures in areas beyond national jurisdiction’ (2015) 61 Marine Policy 134–148, 142–144.

66

Ibid. at 142.

67

Ibid.

68

ccamlr, Ross Sea Conservation Measure, https://www.ccamlr.org/sites/drupal.ccamlr.org/files/91–05_4.pdf (accessed 1 June 2017).

69

Department of the Environment and Energy, Australian Antarctic Division, ‘A proposal for a representative system of Marine Protected Areas in the East Antarctic planning domain’, http://www.antarctica.gov.au/law-and-treaty/ccamlr/marine-protected-areas (accessed 1 June 2017).

70

Convention on Migratory Species (Bonn, 23 June 1979, in force 1 November 1983) (1979) 19 ilm 15 (‘cms’).

71

Agreement on Conservation of Albatrosses and Petrels (Canberra, 19 June 2001, in force 1 February 2004) (2004) ats 5 (‘acap’)

72

wwf, International Corals Initiative, Western Indian Ocean Marine Ecoregion, assets.panda.org/downloads/westernindianocean.pdf (accessed 1 June 2017).

73

Ibid.

74

D Obura, ‘The Diversity and Biogeography of Western Indian Ocean Reef-Building Corals’ (2012) PLoS ONE 7(9): e45013. https://doi.org/10.1371/journal.pone.004501.

75

wwf wio Marine Ecoregion (n 70).

76

Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (Nairobi, 21 June 1985, in force 29 May 1996) Official Journal of the European Community 1986, C253/10 (’Nairobi Convention’).

77

fao, Southern Indian Ocean Fisheries Agreement (Rome, 7 July 2006, in force 21 June 2012) http://www.fao.org/fishery/rfb/siofa/en (‘siofa’) (accessed 8 June 2017).

78

unep-wcmc Report (n 44) at 50.

79

Ibid.

80

siofa, ‘Objectives’(n 75).

81

Ibid.

82

unep-wcmc Report (n 44) at 57.

83

Ibid.; Wright et al. (n 65) at 144.

84

Wright et al. (n 65) at 144.

85

unep-wcmc Report (n 44) at 58.

86

iotc, Objectives, http://www.iotc.org/about-iotc (accessed 8 June 2017).

87

unep-wcmc Report (n 44) at 59; see also on attempts to reform iotc: W R Edeson, ‘An International Legal Extravaganza in the Indian Ocean: Placing the Indian Ocean Tuna Commission outside the Framework of fao (2007) 22 International Journal of Marine and Coastal Law 485–515.

88

Ibid. at 60–61.

89

Ibid. at 70–71.

90

United Nations, Division for Ocean Affairs and the Law of the Sea (doalos), The First Global Integrated Marine Assessment, (2016) Chapter 36 B South Atlantic Ocean, 1; http://www.un.org/Depts/los/global_reporting/WOA_RPROC/Chapter_36B.pdf.

91

Ibid.

92

Ibid. at 2–3.

93

Ibid. at 5.

94

See also Wright et al. (n 65) at 140.

95

Convention on the Conservation and Management of the Fisheries Resources in the South East Atlantic Ocean (Windhoek, 20 April 2001, in force 13 April 2003) (2002) 41 ilm 257 (‘seafo Convention’).

96

Ibid. at Articles 1(l) and 2.

97

Ibid. at Article 3.

98

Ibid. at Articles 16 and 23(1)(d).

99

Ibid. at Article 15.

100

Wright et al. (n 65) at 139.

101

Ibid. at 140.

102

Ibid.

103

iucn, ‘10 Principles for High Seas Governance’, https://www.iucn.org/downloads/10_principles_for_high_seas_governance___final.pdf (accessed 9 June 2017); D Freestone, ‘Modern Principles of High Seas Governance: The Legal Underpinnings’ (2009) 39(1) International Environmental Policy and Law 44–49; D Freestone, ‘Editorial: Principles Applicable to Modern Oceans Governance’ (2008) 23 International Journal of Marine and Coastal Law, 385–391.

104

Convention on Biological Diversity (cbd), ‘Background on the ebsa Process’, https://www.cbd.int/ebsa/about (accessed 9 June 2017).

105

un, United Nations World Ocean Assessment, http://www.worldoceanassessment.org/ (accessed 9 June 2017).

106

Global Ocean Biodiversity Initiative (gobi), ‘About gobi’, http://gobi.org/ (accessed 9 June 2017).

107

R Mahon, L Fanning, K M Gjerde, O Young, M Reid, S Douglas, Transboundary Waters Assessment Programme (twap) Assessment of Governance Arrangements for the Ocean, Volume 2: Areas Beyond National Jurisdiction. (unesco-ioc, Paris, 2015). ioc Technical Series 119 at 43.

108

See (nn 36 and 37).

109

See also Nippon Foundation, Nereus Policy Briefs - T Thiele and H Harden-Davies (2016) ‘Technology Transfer’, http://www.nereusprogram.org/policy-brief-bbnj-technology-transfer/. Global Ocean Trust; N Bax, H Harden-Davies, T Thiele, P Halpin and D Dunn (2016) ‘Open Data: enabling conservation and sustainable use of biodiversity in areas beyond national jurisdiction’, http://www.nereusprogram.org/policy-brief-bbnj-open-data/ (accessed 9 June 2017).

110

unep-wcmc Report (n 44) at 90.

111

Ibid. at 91.

112

See (n 82).

113

unep-wcmc(n 44) at 70.

114

Mahon et al. (n 105) at 37–38.

115

Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena de Indias, 24 March 1983, in force 11 October 1986) (1983) 22 ilm 221.

116

Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (Abidjan, 23 March 1981, in force 5 August 1984), http://abidjanconvention.org/index.php?option=com_content&view=article&id=100&Itemid=200&lang=en (accessed 9 June 2017).

117

Antarctic Treaty (Washington dc, 1 December 1959, in force 23 June 1961) 402 unts 71 (‘Antarctic Treaty’).

118

United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 unts 3 (‘losc’).

119

Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 4 October 1991, in force 14 January 1998) (1991) 30 ilm 1455 (‘Madrid Protocol’).

120

See (nn 67 and 68).

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