Newsletter 2024/1

Feature article by Judge Brown (Jamaica)

Navigating marine protected areas and other effective area-based conservation measures

The Kunming-Montreal Global Biodiversity Framework (GBF), characterized as the “Paris Agreement for nature”, resets the (unrealized) ambitions of the 2010 Aichi Biodiversity Targets. Aichi Target 11 established the objective of protecting at least 17 per cent of terrestrial and inland water, and 10 per cent of coastal and marine areas by 2020. The target of 10 per cent relating to coastal and marine areas is reiterated in Target 14.5 of the Sustainable Development Goals (SDGs), with the clarification that this should be “consistent with national and international law and based on the best scientific evidence.” This target is tied to enabling national and international frameworks, and implicitly, effective governance structures. The suggestion that the placement of marine protected areas (MPAs) has been driven more often by political expediency than by the desire to manage key drivers of biodiversity loss spotlights the possible “cosmetic” nature of targets.

Target 3 of the GBF calls on States to effectively conserve, by 2030, 30 per cent of all areas – terrestrial and inland water areas and marine and coastal areas. This is to be achieved through ecologically representative, well-connected and equitably governed systems of protected areas and other effective area-based conservation measures (OECMs), covering areas of particular importance for biodiversity and ecosystem functions and services. Parties to the Convention on Biological Diversity will meet later this year at COP16 to assess strategies, action plans and the overall progress in achieving the established targets and goals. Doing so will necessarily entail qualitative and quantitative judgments.

It is a truism that not all marine protected areas (MPAs) are created equal. There is no universally agreed upon description of an MPA, although certain defining elements attract broad consensus: at a minimum, an MPA is accepted to be a defined geographical space managed for conservation purposes. As all marine habitats are ultimately connected by the seas and oceans, effective protection of the marine environment may be best achieved through interconnected networks of MPAs. It is suggested that marine areas are not MPAs if extraction activities take place and no defined long-term goals of conservation and ocean recovery have been set. The GBF recognizes that the implementation of protected areas and OECMs is not incompatible with sustainable use, but they must fully respect conservation outcomes and the rights of indigenous peoples and local communities. While it is estimated that slightly less than 8 per cent of the global ocean is protected by MPAs, no-take zones comprise far less, with estimates suggesting approximately 2 per cent.

The “boundaries” of MPAs are porous; they allow for the free movement of not only marine living resources but also pollutants. The attainment of their objectives depends, in part, on the associated measures in adjacent areas. The complementary role of OECMs is frequently overlooked and underreported. While MPAs are especially dedicated to the protection and maintenance of biological diversity, OECMs contribute to positive and sustained long-term conservation outcomes mainly as a by-product of other area-based management.

A noted challenge in implementing MPAs and OECMs is the sectoral approach to managing threats to the marine environment. It is an approach that finds support in the United Nations Convention on the Law of the Sea (“Montego Bay Convention” or “UNCLOS”) despite the recognition in its preamble that “the problems of ocean space are closely interrelated and need to be considered as a whole”. The emphasis on limiting extractive industries has concentrated efforts on promoting no-take zones. This focus has been criticized as assuming an air of orthodoxy – overlooking the contributions of other environmental measures. No-take areas are an important tool in facilitating the measurement of the impacts of fishing or other extractive activities. The role of shipping is not always fully evaluated.

Shipping poses a number of risks to the marine environment; ship waste, anchors, fish nets, underwater noise, ship strikes, oil spills and other forms of pollution are ecological stressors. Environmental instruments, such as Regional Seas Conventions, promote the creation of comprehensive and representative networks of protected areas consistent with navigation rights. For example, the Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (SPAW Protocol), article 5(2)(c), and the Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention), article 2(2), expressly recognize the rights of innocent passage, transit passage, archipelagic sea lanes passage and freedom of navigation. Similarly, the Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (Nairobi Convention), article 11, proscribes interference with the rights of other States “and in particular other legitimate uses of the sea.”

Coastal States have imposed limitations on speed or anchoring in addition to routeing measures for environmental purposes. Regulation V/10 of the 1974 International Convention for the Safety of Life at Sea (SOLAS) (as amended) provides for ships’ routeing systems to be used to contribute to the protection of the marine environment. They may be made mandatory for all ships, certain categories of ships or ships carrying certain cargoes, when adopted and implemented in accordance with the guidelines and criteria developed by the International Maritime Organization (IMO).

Coastal States are not obliged to submit the establishment of routeing systems (or other measures) in the territorial sea to the IMO for adoption but must take into account IMO recommendations (UNCLOS, article 22). Special regimes apply where the territorial sea forms part of major international shipping routes through straits used for international navigation and in the case of archipelagic sea lanes passage. In these instances, the implementation of sea lanes and traffic separation schemes for the safe passage of ships – which has been linked to the prevention of environmental hazards – requires the referral of proposed measures to the IMO with a view to their adoption (UNCLOS, articles 41(4) and 53(9)).

In areas beyond the territorial sea, all States enjoy the freedom of navigation. In implementing area-based measures in the exclusive economic zone (EEZ), the coastal State must have due regard to the navigation rights of other States and other related internationally lawful uses of the sea, such as those associated with the operation of ships (UNCLOS, articles 56(2) and 58). In the M/V “Norstar” judgment (Case No. 25, at para. 219), the Tribunal held that bunkering on the high seas falls within the freedom of navigation. In this regard, the Tribunal recalled its findings in the M/V “Virginia G” case that,

• while “the bunkering of foreign vessels engaged in fishing in the exclusive economic zone is an activity which may be regulated by the coastal State concerned”, the coastal State does not have such competence “with regard to other bunkering activities, unless otherwise determined in accordance with the Convention” (M/V “Virginia G” (Panama/Guinea-Bissau), Judgment, ITLOS Reports 2014, p. 4, at p. 70, para. 223). 

The Tribunal in the M/V “Virginia G” case did not find it necessary to address the arguments of the parties concerning the right of a coastal State to regulate bunkering of fishing vessels for the purpose of protecting the marine environment. The extent to which a coastal State may regulate bunkering in its EEZ has not, thus far, been clarified in the jurisprudence, but is particularly significant given the potential hazards of toxic spills for fragile ecosystems.

The IMO is the competent international organization for the development of rules and regulations for international shipping and navigation in relation to the prevention, reduction and control of pollution in the marine environment. Special Areas may be established under the International Convention for the Prevention of Pollution from Ships (MARPOL), Annexes I, II, IV and V, to protect against pollution of the sea by oil, noxious liquid substances in bulk, sewage or garbage, respectively. These are mandatory measures which States are obliged to give effect to and comply with. Provision is also made for Emission Control Areas under MARPOL Annex VI to limit emissions (nitrogen oxides, sulphur oxides and particulate matter) from ships.

The designation by the IMO of a Particularly Sensitive Sea Area (PSSA) is non-binding. Its legal significance derives primarily from associated protective measures (such as MARPOL special areas, routeing systems or “other measures aimed at protecting specific sea areas against environmental damage from ships, provided that they have an identified legal basis” (IMO Resolution A.982(24), Annex, “Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas”, para. 6). To date, all IMO Special Areas and PSSAs fall within areas of national jurisdiction.

The coastal State has the primary responsibility for implementing measures to protect and preserve the marine environment within national jurisdiction and to conserve and manage its natural resources. The responsibilities borne by the coastal State give rise to corresponding rights, including the authority to designate special areas that are administered in a manner compatible with the provisions of the Montego Bay Convention.

In the Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission, the Tribunal observed that:

• laws and regulations adopted by the coastal State in conformity with the provisions of the Convention for the purpose of conserving the living resources and protecting and preserving the marine environment within its exclusive economic zone, constitute part of the legal order for the seas and oceans established by the Convention and therefore must be complied with by other States Parties… (Case No. 21, at para. 102).