Adapted from Wolfish and Smith (2000)
There is currently no overarching legal regime that affords for the
designation of MPAs in the high seas, but there is for regionally
managed high seas multiple use protected areas (with no-take zones)
established in the North-East Atlantic under the OSPAR
Commission11OSPAR Commission for the 1992 Convention for the
protection of the marine environment of the North-East Atlantic. and
in the Southern Ocean under CCAMLR22Commission for the 1982
Convention on the Conservation of Antarctic Marine Living Resources..
Discussions on the proposed BBNJ instrument are underway and expected to
be concluded in 2020 that if successfully negotiated and implemented
could prove to be a major driver of change. Successful negotiation and
implementation must involve the principles of fairness (such as the
application of ‘the veil of ignorance’) described in this paper.
Agreed conservation objectives, principles and values is another key
driver of change. In order to effectively establish and implement a
network of MPAs there must be international agreement on the concept of
MPAs as a tool to conserve and sustainably manage marine resources, in
addition to agreement on what a MPA is. Misunderstanding of terminology
(e.g. MPA definition) or misinterpretation of legal terms (e.g.
different interpretation of ‘rational use’ in the CCAMLR Convention
(Smith, McGee and Jabour 2016) can lead to ineffective MPAs, conflict
and exploitation.
Political commitment and willingness are essential components to success
in establishing a global network of MPAs. Without such commitment, legal
conflicts such as unregulated boundary issues may be intractable and
legal complexities may be used as reasons to stall or deter engagement.
High-level political commitments and willingness to sustainable oceans
need to balance the ability to manage resources through conservation of
fisheries habitat, protection of the complexity of trophic levels and
food webs, and maintenance of livelihoods. This is key to addressing
fairness.
A question remains, too, over the extent to which MPAs embody principles
of fairness, or whether they can inadvertently extend the “conservation
burden”(Hanich and Ota 2013) on developing states that depend on ocean
resources for food security and economic development. Fairness also
incorporates trust, meaning that knowledge sharing and open
communication is an important driver of change. Information needs to be
transparent, supporting the building of trust, enhancing the legitimacy
of decision makers. Transparency also enhances engagement with citizens
and communities in enhancing our understanding of sustainable ocean use.
The inclusion and cooperation of different stakeholders (such as
traditional owners and custodians of sea country all around the world,
Fischer et al 2020 this issue; Mustonen et al. 2020 this issue), is
important in the governance process and will increase our understanding
of sustainable ocean use and also considerably influence the
effectiveness MPAs.
Whilst the current global MPA coverage targets (Aichi Target 11 and SDG
14.5) have not been met, these milestones were certainly formidable
drivers resulting in significant work undertaken to date towards
achieving these goals. Building on and incorporating global targets with
measurable outcomes will be a major driver of change in the
establishment of a global network of MPAs. However, it is important to
point out that these goals need to be feasibly achievable and
measurable. The next section develops the two future scenarios
(Business-as-usual and More Sustainable ) that seek to
illustrate and contrast the pathways forward in oceans governance on
MPAs by 2030.
Business-as-usual future by 2030: Treading water
In this scenario, commitments to developing a global network of MPAs
that reaches the target of 30% coverage of the World’s oceans by 2030
are maintained in a formal sense, but powerful interests focused on
marine resource harvesting remain to weaken their implementation and
effectiveness. The Rawlsian ‘veil of ignorance’ plays little or no role
in decision making of key states and decision makers within those
states. The notions of equitable sharing of marine resources, based on
sustainable and ecosystem-based extraction limits, a position
supportable for all states from Rawls ‘original position’, is not
accepted. Instead, key states seek to maximise their own short-term
economic interests in marine resources extraction within the restraints
of longstanding, but failed, management principles such as locating MPAs
away from areas of use (Stevenson et al. 2020). The interests of other
less able states, based on fairness concerns derived from Rawls original
position, are disputed as utopia thinking, inconsistent with the
hard-headed pragmatism of pursuing national interests through
international relations.
The BBNJ treaty’s commitment to capacity building and technology
transfer have had some notional impact but are limited in efficacy.
Agreed conservation objectives and principles are more visible through
the BBNJ instrument although there is less practical commitment to
binding targets. Engagement with non-state actors (including first
nations peoples and the populations of SIDS remain at a formal level. As
a result of formal commitments to benefit sharing (in a wide range of
forms) embedded in the BBNJ instrument provides a road map to improve
fairness, but inequity remains. Major fishing states retain their
control over much of the worlds highs seas fisheries. Attempts to
instate MPAs and a means to enhance sustainable use of these and other
resources is constrained.
Ocean governance therefore continues to be dominated by a small number
of economically powerful distant water fishing states from Europe, North
America and North Asia. National interests lead to concern over
competition for resources rather than trust building and equitable
sharing of resources. At times this competition leads to some formal
collaboration in international relations, as the US and China broker
bilateral agreements with other countries that suits their immediate
shared interests, but fails to engage with the interests of other states
or the international community. Russia retains a key influence in oceans
forums and furthers its key interests in harvesting and marine resource
extraction. This leads to the World’s fisheries coming under further
pressure from overfishing and risk of stock collapse (Farmery et al.
2020 this issue).
The BBNJ legal instrument enters into force, but unresolved issues and
differing views during the negotiation process have limited its original
ambition and its influence is constrained. Key states note the
commitment not to undermine existing agreements and institutions, with
the result that the BBNJ Convention operates in parallel to, but with
little influence on regional fisheries management organisations and
regional treaties/agreements. The current high seas MPAs that were
established under the OSPAR Convention area continue to be recognised
within the regional agreements but not within the global community. To
complicate matters the OSPAR Convention does not cover all human uses of
the oceans that may interfere with MPAs because its mandate does not
include fisheries management (Article 4(1)) or maritime transport
(Article 4(2)). This raises questions as to the effectiveness of the
OSPAR high seas MPAs (Smith and Jabour 2017; Matz-Lück and Fuchs 2014).
However, the OSPAR Commission develops and implements operational
objectives for biodiversity for the North East Atlantic Environment
Strategy 2030 (OSPAR 2020). OSPAR continues to engage with the North
East Atlantic Fisheries Commission through the Collective Arrangement
(OSPAR 2018a) and efforts to bring on board other key regimes, such as
ISA and IMO, are continuing to result in largely positive but to date
non-committal responses.
The current stalemate on conflicting scientific and political interests
within the CCAMLR Convention member meetings continues. No further
CCAMLR MPA proposals are accepted and this causes further tension and
distrust which has a knock on affect into the international political
arena (the Antarctic Treaty system and UNCLOS share significant
cross-membership). Despite proposals put forward, negotiations result in
little more than discussions with no concrete actions made to establish
further MPAs in the high seas. There is continued effort in the
negotiations between CCAMLR members to adopt the Ross Sea region MPA
Research and Monitoring Plan (RMP) prove unsuccessful (CCAMLR 2019; para
6.35 and 6.38) and a political deadlock continues (Sykora-Bodie 2019).
Without an approved and agreed RMP the Ross Sea region MPA cannot be
effectively implemented. This sticking point also raises uncertainty
over the South Orkney Island Southern Shelf (SOISS) MPA RMP. Monitoring
activities have been undertaken since it was designated in 2009 however,
some CCAMLR members continue to argue that the Commission did not
approve the RMP (CCAMLR 2019; para 6.26 and 6.27). Negotiations continue
over the scientific criteria of the SOISS RMP. Thus, making it difficult
to ascertain whether or not SOISS MPA is achieving the MPA objectives.
For this reason, both the Ross Sea region MPA and the SOISS MPA are
represented on Figure 3 a) Business-as-usual scenarioas hatched lines to illustrate the uncertainty over their future.
On a state level, increased education and awareness for conserving
national interests result in more MPAs in national waters being
established and measures implemented to improve the management of
existing territorial MPAs. Although the national MPAs go some way to
reaching the global target of 30% coverage more work is needed to
incorporate climate change refugia and interconnectedness towards
building a global network of MPAs.
By 2030 the global community reach the previous 10% MPA coverage (Aichi
target 11 and SDG 14) mainly due to increasing national MPAs but the new
target of 30% global coverage by 2030 is far from reach.
More Sustainable future by 2030: Shared oceans
In this scenario, the BBNJ Convention is agreed upon after lengthy
discussions and additional intergovernmental conference meetings being
held however, once it was agreed upon the instrument was more robust.
The concluding session of the BBNJ conference see strategies put forward
and negotiation measures prove to be successful between opposing states,
reflecting states’ recognition of their potential losses under any
alternative outcome. Adopting Rawls ‘original position’, each
stakeholder hypothetically considers the total situation of all
stakeholders from behind the ‘veil of ignorance’ and designs a system
assuming they could occupy any position in the situation. By doing so
key states recognise that their endowments of fishing capacities, or
geography of coastal state oceans access, should not be the key
determinant in deciding the distribution of the benefits of marine
resources. Consideration is given to including the interests a wider set
of states who have not traditionally had the technical or economic
capacities to be significantly involved in marine recourse extraction.
The interests include the importance of conserving and protecting the
World’s marine resources and ecosystem services for all states and both
current and future generations. Key states are therefore reluctant to
use their individual power to make bilateral agreements with weaker
countries that give short term sacrifice ecosystem services and economic
gain and the expense of the interests of the international community and
future generations.
Under the new global BBNJ treaty a Conference of Parties (COP) is
established to facilitate coordination between states, regional and
international organisations and implement actions within areas of the
four packages, e.g. area-based management tools, including MPAs. Eight
ecologically or biologically significant marine areas (EBSAs) on the
high seas were previously identified for protection through a scientific
and technical process launched under the Convention for Biological
Diversity (The Pew Charitable Trust 2016; CBD Secretariat 2009). These
areas are agreed upon and adopted through the new treaty (these areas
are represented Figure 3 b) Sustainable futures
scenario ).
UNESCO previously identified five areas in the high seas of potential
‘Outstanding Universal Value’ (UNESCO 2016). These areas were considered
so significant as to justify recognition and inscription on the World
Heritage List for protection under the 1972 World Heritage Convention
(these areas are represented Figure 3 b) Sustainable
futures scenario ). Further agreements and Memorandum of Understandings
are put into place between RFMOs and other industries such as IMO and
ISA. These arrangements enhance state action to increase conservation
activities by regional fisheries arrangements, and strong controls over
resource extraction activities in vulnerable deep-sea areas and enhance
the work of the ISA in these matters.
Under the new BBNJ treaty, existing MPAs in the high seas recognised by
the regional treaty agreements, are put forward to the BBNJ COP to be
considered as proposals for global recognition. During this process, an
extensive consultation phase is undertaken to include the global
communities’ interests. Whilst this is a lengthy process and some
changes to the MPA proposals are made, this approach enabled global
acceptance and implementation of these high seas MPAs. Other new high
seas MPA proposals are put through the same system, which facilitated
more productive negotiations. This process enabled the current CCAMLR
MPA proposals (the Weddell Sea MPA proposal; East Antarctic MPA
proposal, and the Antarctic Peninsula MPA proposal) to be approved
(shown on Figure 3 b) Sustainable futures scenario ).
In addition the OSPAR North Atlantic Current and Evlanov Seamount MPA
proposal (OSPAR 2018b) is approved by the BBNJ COP (shown onFigure 3 b) Sustainable futures scenario ). On a state
level, designation of MPAs in national waters continues but more focus
is on the effective management, monitoring and enforcement of these MPAs
and incorporating the future impacts of climate change into the
sustainable management of marine resources, with increasing adoption of
Dynamic Ocean Management approaches in response to climate-driven
redistribution of biodiversity values (Melbourne-Thomas et al. 2020 this
issue; Ward et al. 2020 this issue). Further work continues to identify
ecological hot spots in the high seas and within state waters in need of
protection and management (Greenpeace 2019; The Pews Charitable Trust
2020; Sylvia Earle Alliance/Mission Blue 2020).
Under the BBNJ treaty, commitments to capacity building and technology
transfer has provided direct benefits to training and management
capacity in SIDS. The level of trust amongst different nation states has
improved but collaboration is still key to decision making. The norms,
values and relationships give the regimes strength and there is
acceptance of these norms and values by members. As a result of formal
commitments to benefit sharing (in a wide range of forms) embedded in
the BBNJ instrument fairness in international ocean governess is
enhanced. Benefit sharing in a range of ways is a key to the emerging
regime, technology transfer and capacity building enhances the ability
of developing states to provide stewardship of their ocean areas and
contribute to shared aspirations in similar commitment in the high seas.
As with the ‘Business-as-usual’ scenario outcomes in international
system are still significantly influenced by the national interests and
actions of states but sustainability is accepted as a key principle.
This principle is operationalised through a number of objectives, with
clear targets and commitments to reports on these targets. The Aichi
Target 11 of 10% of the oceans being protected by 2020 leads to strong
commitment to increase the target to 30% by 2030, which is met largely
due to the designation of areas of the high seas. An emerging global
network of MPAs is in place and although further work is required to
improve the implementation and management stages, the ecological
coherence and addressing the impacts of climate change, it is providing
the base for continued discourse on fair use of the ocean.