Areas, Malaga, Spain 2003 (the Malaga Workshop)
The Malaga Workshop, convened by key environmental NGO players in the high seas epistemic community (IUCN, WWF and WCPA), brought together 38 marine experts from the fields of law, science, policy, and management representing a diverse array of institutions and organisations. The Workshop’s primary objective was to: “develop an action plan to promote a system of high seas protected areas to ensure long term protection and wise use of ecosystem processes, biological diversity and productivity beyond national jurisdiction” (Kelleher 2003, 3). Speakers addressed the state of global oceans governance, scientific research data, progress being made by both the German and Australian governments in promoting high seas MPAs, the promotion of ‘Unique Scientific Priority Areas’ (long term study sites), and the protection of fragile coral communities, seamounts and hydrothermal vent systems in areas within and beyond national jurisdiction (Kelleher 2003, 4).
Armed with this information, Workshop participants were then assigned two major tasks. The first was to draw a “road map” for high seas MPAs by identifying the most pressing ocean conservation issues, high seas stakeholders, and interested parties. The second was to identify “mechanisms, gaps, messages, a timeframe, opportunities and funding issues” and develop promotional strategies for the concept at both individual site and representative system levels (Kelleher 2003, 4).
Participants explored a number of questions deemed important in resolving the two primary tasks and came up with an extensive list of conclusions and recommendations
for road map design and strategic development of high seas MPAs. These were
expressed in four specific groups of action plans: (i) global instruments and institutions; (ii) global fisheries instruments and institutions; (iii) regional arrangements and legal framework; and (iv) potential priority sites/opportunities. Each action plan addressed the steps to be taken, steps-within-steps, target audience, actors involved, work schedule, resource needs, and possible funding sources (IUCN 2003).
In the context of a legal framework for high seas MPAs, the Malaga participants identified three priority actions: (i) coalition building/networking; (ii) international recognition of the concept of high seas MPAs through the utilisation of international and regional fora; and (iii) designation of pilot site high seas MPAs to serve as ‘test cases’ to expedite future high seas MPA design, management and enforcement (Gjerde 2003b, 2, 8-19). As the third priority action suggests, the Malaga Workshop ventured far deeper into the domain of pragmatism than its predecessors. Participants identified a series of practical steps toward the development of a system of high seas MPAs. Based on the evidence presented in a Scientific Background Paper provided to Workshop participants, the following areas were identified as areas for further research (Gjerde 2003b 20-21):
(i) Arctic Mid-Ocean Ridge/Gakkel Ridge hydrothermal vents; (ii) Antarctic Seamounts;
(iii) Central Indian Ocean Ridge seamounts and hydrothermal vents; (iv) Mid-Atlantic Ridge vent fields;
(v) Lord Howe Seamount chain;
(vi) The European Deep Seas Transect (within the Maritime Area of the OSPAR Convention, and proposed as a Unique Science Priority Area); and
(vii) The Rockall Bank coral communities in the North East Atlantic.
The following sites were identified as politicallyfeasible high seas MPAs and an action plan developed for each (Gjerde 2003b, 21):
(i) Tasman seamounts (off the southern coast of Australia); (ii) Grand Banks (off the east coast of Canada);
(iii) Keguelen Island and Heard Island-McDonald Islands (which border Australian and French Antarctic territories);
(iv) Logatchev Vent Field (mid-Atlantic Ridge);
(v) Great Meteor Seamount (the world’s largest isolated seamount located in the North Atlantic); and
(vi) Rainbow vent field (Mid-Atlantic Ridge, and also within the OSPAR Maritime Area).
The draft action plan for the Rainbow hydrothermal vent field is at Appendix 2. It sets out the elements identified at the Malaga Workshop to establish the Rainbow
hydrothermal vent field as a high seas MPA (IUCN 2003).
A number of steps to designating a high seas MPA pilot site were also outlined. The drafters emphasised that the process would require “a broad based collaborative effort, with many iterative steps requiring adaptation to regional and local needs and
capabilities” (Gjerde 2003b, 21). The Steps were based on precedents for MPA designation recommended at the domestic level (Gjerde 2003b, 21-22):
(i) Select candidate sites;
(ii) Promote, consult and find funding sources; (iii) Identify the relevant authorities and stakeholders;
(iv) Gather technical, legal, and scientific background information; (v) Prepare the proposal in the form of a white paper;
(vi) Examine the legal mechanisms with utility for high seas MPAs;
(vii) Consider the social, political and economic realities which will determine the success or failure of such a proposal;
(viii) Finalise the MPA proposal premised on detailed socio-economic, technical and legal analysis and a conservation report;
(ix) Prepare a management plan;
(x) Implement the designation process;
(xi) Implement the management plan and enforce; and (xii) Monitor and evaluate the site to gauge success.
Workshop participants also explored the existing legal framework and alternative options such as voluntary agreements and to monitoring and enforcement issues, noting in relation to the latter that technological developments such as satellite surveillance and transponders were improving the capacity for effective enforcement of state’s
international legal obligations (Gjerde 2003b, 23-24).
In conclusion, participants agreed that urgent action to halt threats to high seas biological diversity and productivity was needed. In addition to the four clusters of action plans developed during the Workshop, they also emphasised the need to find immediate mechanisms for seamount protection and noted the need to explore avenues for expediting implementation through the existing oceans governance legal framework. The majority also expressed “a high degree of enthusiasm and willingness” to participate in implementation of the Action Plans (IUCN 2003a).
As noted in Chapter Four, the global representative system of marine protected areas by 2012 goal was legitimised in the eyes of MPA proponents at the 2002 (WSSD). The Proceedings of the Malaga Workshop announced that:
...finally, it appears that High Seas MPAs are “an idea whose time has come.” Following the WSSD and in light of the work being undertaken by the CBD and United Nations Division on Ocean Affairs and Law of the Sea (UNDOALOS), there appears to be significant momentum toward future motion in relation to marine biodiversity protection as well as clear recognition of the need for new tools to manage risks to biodiversity on the high seas (IUCN 2003a).
Workshop on the Governance of High Seas Biodiversity Conservation, Cairns, Australia, 2003
The Cairns Workshop on the Governance of High Seas Biodiversity was the result of a partnership initiative forged at the 2002 WSSD between the governments of Australia, Canada, the UK, Cambodia, New Zealand, and the US, together with the IUCN, the WWF, Humane Society International, the ISA, the IMO, the International Oceans Institute (IOI), and FAO (Cairns Workshop Summary Record 2003). Participants were reminded of Paragraph 32 (a) of the Johannesburg Plan of Implementation, and UNGA Resolution 57/141 which provided impetus for discussion by encouraging:
[R]elevant international organizations, with the assistance of regional and subregional fisheries organizations, to consider urgently ways to integrate and improve, on a scientific basis, the management of risks to marine biodiversity of seamounts and certain other underwater features within the framework of the United Nations Convention on the Law of the Sea (Cairns Workshop Summary Record 2003.)
The overarching goal of the Cairns Workshop was the conservation of high seas biodiversity through intellectual capacity building. Over 150 participants representing 36 countries and a broad range of institutions and scientific research disciplines attended the Workshop to identify and examine activities threatening high seas biodiversity. Although fishing practices such as bottom trawling were identified as the most
destructive of high seas activities, the impacts of mineral exploration, military activities, dumping of toxic materials, scientific research, ocean debris, introduced marine pests, whaling, bioprospecting, and the laying and operation of submarine cables and pipelines were also addressed during the four day Workshop. Motivated by the normative
principles of intergenerational equity, integrated ocean and coastal management, and the precautionary approach, workshop attendees teased out the utility of traditional and newly identified options and actions with potential to protect high seas biological diversity. Once again, the 1982 LOSC was endorsed as the primary legal foundation upon which measures and actions for the protection of high seas biodiversity should be built (Cairns Workshop Meeting Record 2003).
Participants categorised the various options according to their utility in the short, and medium to long terms. Immediate options (1-5 years) placed the United Nations at the forefront of actions and include, inter alia:
− A call for a UNGA resolution for a moratorium on destructive fishing practices; − A call for a UNGA resolution addressing issues relating to the genuine link
between vessels and flag states;
− A call for an “appropriately resourced” coordination and cooperation mechanism within the UN system;
− Urgent capacity building for small island developing states and less- industrialised countries;
− Public relations campaigns emphasising the value and importance of the deep ocean system;
− Development of a pilot high seas marine protected area site; and
− Relevant organisations such as the UNGA and the CBD Secretariat to address and review issues pertaining to the conservation and sustainable use of deep seabed genetic resources.
(Cairns Workshop Summary Record 2003).
Medium to longer term options (5-20 years) were divided into categories addressing: (i) international law; (ii) institutions; (iii) scientific research; and (iv) education and capacity building. International legal options included:
− Development of agreements to ensure implementation of the LOSC conservation obligations;
− Amendment of the World Heritage Convention to include the high seas; − Amendment of the CBD to: “provide a framework for the establishment of
marine protected areas and ecosystem-based management for the oceans and seas beyond national jurisdiction”; and
− Development of a framework within which to address bioprospecting and other activities not specifically regulated by extant agreements or institutions.
(Cairns Workshop Summary Record 2003) Institutional options included:
− Encouraging greater use of existing IMO measures such as particularly sensitive sea areas (PSSAs) and special areas (SAs) among IMO member states, and for the IMO to develop new measures to protect high seas biodiversity;
− Expanding the scope of the ISA beyond seabed mineral management to include designation of high seas conservation zones, and to develop a regime for bioprospecting in the Area based on the principles expressed in the LOSC and the CBD;
− Improving coordination between oceans-relevant conventions and instruments; − Establishing new high seas-specific RFMOs;
− RFMOs establishing high seas MPAs;
− Development of a central authority for management of the oceans; − Development of an ‘Oceans Interpol’; and
− Development of a global biotechnology commission.
(Cairns Workshop: Summary Record of Discussion and Suggestions for a Way Forward 2003)
Scientific research options included:
− Establishment of a Global Marine Assessment that includes high seas biodiversity issues;
− The IOC to act as coordinator between oceans policy and scientific communities; − Identification of vulnerable ecosystems, especially candidate sites for MPAs; and − Creation of regional and global ocean governance research networks to inform
high seas biodiversity conservation decisions.
(Cairns Workshop Summary Record of Discussion and Suggestions for a Way Forward 2003)
Education and capacity building options included:
− Inspiring public and stakeholder awareness of those problems and challenges identified in previous options categories;
− Expanding intellectual capacity through training and education; and
− Increasing the utilisation of communications technologies to convey the message about high seas biodiversity conservation.
(Cairns Workshop: Summary Record of Discussion and Suggestions for a Way Forward 2003).
Other ideas proposed at the Workshop included the development of a Global Oceans Policy, and the creation and appointment of a Global Oceans Ambassador (Cairns Workshop Summary Record of Discussion and Suggestions for a Way Forward 2003).
Fifth IUCN World Parks Congress 2003
The IUCN World Parks Congress (WPC) is held every ten years and is recognised as a major global forum for discussion and debate on the threats, issues and challenges to the world’s ecological domains, and potential solutions including protected areas. The Fifth WPC, held in 2003, was attended by 2,500 government officials, scientists and
environmentalists who participated in discussions on a number of cross-cutting themes, the first of which addressed areas of concern relating to protection and preservation of the marine environment (World Wide Fund for Nature (a) 2004). In light of these concerns, the WPC recommended that at least 20 to 30 per cent of all marine habitats be included in networks of marine reserves, an area that participants viewed as conservative following a review of “nearly forty studies examining how much of the sea should be protected”. The majority of these studies had concluded that “between 20 and 50 per cent should be protected to achieve the conservation of viable populations, support fisheries management, secure ecosystem processes and assure sufficient connectivity between marine reserves in networks” (Gell and Roberts 2003).
A special planning session for high seas MPAs was held during the Congress and a small and dedicated group of participants (key members of the high seas epistemic community) discussed the construction of a theoretical framework for a high seas representative system of MPAs, enforcement challenges, the organisational framework for a high seas coalition, and the need to engage stakeholders during all stages of the process (IUCN 2004a).
The WPC’s visionary statement was massaged into a document titled the Durban Accord which implored actors in the global oceans governance cas to embrace a litany of political, legal and institutional commitments for the protection of marine
biodiversity. Delegates reiterated the temporal targets established during the 2002 WSSD in relation to marine biodiversity protection, and emphasised the inclusion of ocean areas beyond national jurisdiction in the 2012 global marine protected areas network target. This goal was also echoed in the Congress Message to the Convention
on Biological Diversity (IUCN 2004a), further reinforcing the high seas epistemic community’s priority social goal.
The Durban Accordspecified ten Outcomes to be augmented by actions at international, regional, national and local levels. In particular, Outcome 3 envisaged achievement of a “global system of protected areas linked to the surrounding landscapes and seascapes”, and identified a number of ecosystems in need of attention, including those of the high seas where the priority was to “develop a linked, coordinated and consistent system of management, including protected areas [involving] international collaboration amongst RFMOs” connected to “parallel and complementary initiatives in coastal waters and EEZ seas” (IUCN 2004a).
The centrepiece of the WPC marine theme was Recommendation 5.23: Protecting Marine Biodiversity and Ecosystem Processes through Marine Protected Areas beyond National Jurisdiction(hereon referred to as Recommendation 5.23). It called for the international community to collectively endorse and promote:
...the goal of establishing a global system of effectively managed, representative networks of marine protected areas by 2012 that includes within its scope the world’s oceans and seas beyond national jurisdiction, consistent with
international law...[and to] utilize available mechanisms and authorities to establish and effectively manage by 2008 at least five ecologically significant and globally representative high seas marine protected areas incorporating strictly protected areas consistent with international law and based on sound science to enhance the conservation of marine biodiversity, species, productivity and ecosystems (IUCN Recommendation 5.23 in Morgera 2007, 3).
In addition to identifying a new and ambitious target – a minimum of five high seas MPAs by 2008 – Recommendation 5.23 also restated a number of previously articulated commitments and temporal targets, including Resolution 2.20 (Conservation of Marine Biodiversity) adopted at the 2nd World Conservation Congress in Amman, Jordan (2000), and the temporal targets described in the 2002 WSSD Johannesburg Plan of Action. In a similar vein to that of Recommendation 5.23, Resolution 2.20 urged global actors to seek ways of protecting marine biodiversity, including high seas MPAs, and called on “national governments, international agencies and the non-governmental community to better integrate established multilateral agencies and existing legal
mechanisms to identify areas of the high seas suitable for collaborative management action” (Anon, 2004; IUCN 2004a).
Opinions on the 2008 temporal target ranged from “ambitious and doable” to “a
miracle” if attained, although the latter was qualified by the belief that support for high seas MPAs was gathering momentum and, as such, was a matter of ‘when’ rather than ‘if’ (Anon 2003, 1).
Recommendation 5.23 conveyed eight proposals to the international community which affirmed, inter alia, the sentiments previously expressed in Resolution 2.20 coupled with the WSSD Plan’s 2012 benchmark for a global representative system of MPA networks. It called for the establishment and effective management of five “ecologically significant and globally representative” high seas MPAs by 2008, and introduced the IUCN-World Commission on Protected Areas’ (WCPA) Ten Year Strategy to Promote Development of a Global Representative System of High Seas Marine Protected Area Networks (herein known as the Ten Year Strategy).
The WCPA Ten Year Strategy
The 5th WPC drew the high seas epistemic community together to discuss ideas built on shared eco-ethical internal models that had shaped its priority social goal of protecting deep oceans biodiversity, and develop further its suite of building blocks for the creation of marine protected areas beyond national jurisdiction. .
The primary aim of the WCPA Ten Year Strategy (2003-2012) is to promotethe concept of high seas MPAs through seven core components identified by Marine Theme
participants at the WPC, and supported by a number of strategic steps. The following is a substantially abridged version of these seven core components and key strategies (IUCN 2004b, 3-7):
1. Endorse and promote the WSSD Joint Plan of Implementation with an emphasis on the 2012 temporal goal of a global system of representative networks of MPAs.
2. The UNGA to consider immediately a ban on deep sea trawling in high seas areas, with attention directed toward seamounts and cold-water coral
communities.
3. Establishment and effective management of a minimum of five scientifically significant and globally representative high seas MPAs through binding and non- binding agreements. This component also calls for the development of “explicit proposals for pilot [high seas] MPAs while plans for a representative system of … networks are under development.”
4. Establishment a global system of representative networks of MPAs.
5. Identification of marine ecosystems, habitats, areas, processes and biodiversity hotspots for immediate attention.
6. States to respect and adhere to formal and informal international agreements such as the LOSC, CBD), FSA) and the Convention on Migratory Species (CMS) so that a global framework for a holistic representative system of high seas MPAs can be developed and promoted.
7. Continue promoting the global representative system of high seas MPAs and report on progress at the International Marine Protected Area Congress (IMPAC) (held in Australia in 2005).
The Strategy also includes a number of “tool boxes” to complement the seven
components and strategies. Tool Boxes One and Two explore the support structures and strategies that could be used to shore up support for high seas biodiversity conservation measures including international and regional forums and agreements; international environmental laws; voluntary codes of conduct; non-binding Memorandums of Understanding (MOU) amongst ‘range states’; establishment of a biosphere reserve; public/private partnerships; and joint plans of action or work programmes between conventions such as the CBD and CMS (IUCN 2004b, 9-12). Tool Box Three describes potential preliminary criteria for high seas MPAs, while the fourth Tool Box defines the ecological research elements which are relevant to both development and management of a global representative system of high seas MPA networks.
Following on from the WCPA’s Ten Year Strategy, WCPA-Marine drafted a Plan of Action for 2006-2012 (Laffoley 2006). The mission for the Plan of Action is: “...to promote the establishment of a global, representative system of effectively managed and lasting networks of MPAs, as an integral part of the IUCN mission” (Laffoley 2006, 7).