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21 Integrated Oceans Management: A New Frontier In Marine Environmental Protection

Karen N Scott

From: The Oxford Handbook of the Law of the Sea

Edited By: Donald R. Rothwell, Alex G. Oude Elferink, Karen N. Scott, Tim Stephens

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 25 October 2020

Subject(s):
Law of the sea — UNCLOS (UN Convention on the Law of the Sea) — Marine environment, protection

(p. 463) 21  Integrated Oceans Management

A New Frontier In Marine Environmental Protection

Introduction

The conservation of living resources and the protection and preservation of the marine environment are key objectives of the 1982 United Nations Convention on the Law of the Sea (LOSC). Despite this, and that many treaties relating to the marine environment have been in place for half a century or more, the health of the oceans globally continues to be significantly degraded by human activities.1 Threats range from coastal development, over-fishing, habitat degradation, exploitation of hydrocarbons, the introduction of invasive species, climate change, and (p. 464) ocean acidification.2 The Census of Marine Life, a project carried out over a decade and which reported its findings in 2010, concluded that ‘ocean life is richer than imagined…more connected and more impacted than previously thought’.3 And it is the second element in this conclusion—that the oceans are more connected than previously thought—that explains the impetus for integrated oceans management (IOM), the dominant contemporary approach to oceans governance, and the topic of this chapter.

Traditionally, marine environmental protection and the management of ocean-based activities more generally have been undertaken on the basis of a zonal and/or sectoral approach with little regard for the cumulative impact of multiple activities or the ecological constraints imposed by individual ecosystems. Despite a cursory acknowledgement of the close interrelationship of the oceans and the need to consider them as a whole within the preamble of the LOSC, the zonal/sectoral approach to oceans governance underpins and guides the implementation of the Convention. Increasingly, however, it is apparent that this inherently fragmented approach to oceans governance is contributing to the degradation of the marine environment.4

Integrated oceans management is an attempt to respond to the deficiencies of a zonal/sectoral, fragmented approach to oceans governance and has been widely endorsed—in theory if not in practice—at national, regional, and global levels. This chapter will explore IOM as a concept and attempt to assess the extent to which it has been implemented at all levels of oceans governance. In analysing it as a governance tool, this chapter will attempt to deconstruct IOM in order to identify its key components, their relationship to one-another and their role in supporting an integrated approach to oceans management. The importance of IOM deconstructed becomes apparent in Section 5 of this chapter, where the applicability of IOM—both actual and potential—to areas beyond national jurisdiction (ABNJ) is assessed. The chapter will conclude with observations as to the future development of IOM and its role in driving forward a new frontier in marine environmental protection and oceans governance more generally.

(p. 465) Integrated Oceans Management as a Tool for Marine Environmental Protection

Integrated oceans management describes an approach to oceans governance that is holistic, and which aims to integrate the management of activities that impact upon or affect the oceans across sectors, space and time under a unified over-arching vision.5 Over 30 States have developed or are in the process of developing integrated oceans strategies in respect of waters under their jurisdiction.6 Moreover, integrated approaches with an emphasis on marine and coastal planning have been adopted at a regional level within European waters—in particular the Mediterranean, Baltic and North Seas and the North-East Atlantic—as well as, to a more limited extent, the Western Indian Ocean and Caribbean Sea.7 Globally, IOM was identified as a key tool for promoting the sustainable development of the oceans and the protection of the marine environment in Chapter 17 of Agenda 21, adopted at the UN Conference on Environment and Development in 1992.8 Integrated, multidisciplinary, and multi-sectoral ocean management was subsequently endorsed at the 2002 World Summit on Sustainable Development9 and at the 2012 Rio + 20 UN Conference on Sustainable Development.10 The integration of oceans management has become a regular and, increasingly, a prominent theme within both the annual UN General Assembly resolutions on the law of the sea11 and the accompanying Secretary General reports12 as well as in the work of the UN Open-ended Informal Consultative Process on the Law of the Sea.13 Moreover, whereas IOM within the (p. 466) context of the UN conferences in 1992, 2002, and 2012 was articulated in the context of coastal areas and waters under the jurisdiction of States,14 the UN Secretary General has recognized its more general application, including to areas beyond national jurisdiction.15 Integrated management of oceans activities beyond national jurisdiction has also been advocated16 by States party to the 1992 Convention on Biological Diversity (CBD) and by members of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (BBNJ Working Group).17

Despite the endorsement and, in many cases, adoption and application of IOM by national, regional, and global institutions a definitive definition of the concept remains elusive. Typically, an ‘integrated’ oceans policy is multi-sectoral in that it is designed to manage conflicts between, and cumulative impacts of, a wide range of activities taking place within or proximate to a marine and coastal environment. It is spatially focused in that activities are managed according to location and, increasingly, in the context of an ecosystem. It also has a strong temporal dimension, and long-term, forward planning, is an important feature of an integrated oceans policy. Finally, IOM requires a relatively high level of political, legal, and institutional coordination at all levels of implementation including meaningful stakeholder participation.

Nevertheless, the application of IOM varies significantly between regions and States.18 For example, in the Mediterranean, IOM is primarily focused on the interface between the coastal and the marine environment, and is commonly referred to as integrated coastal (zone) management (ICM/ICZM).19 In Northern Europe, by contrast, IOM emphasizes marine spatial planning (MSP) and the development of oceans policy has largely been driven by the need to manage multiple activities offshore, such as renewable energy generation and oil and gas exploitation.20 In Australia, IOM is (p. 467) similarly implemented through a process of MSP, but is principally motivated by principles of conservation rather than by competitive-use planning.21 Implementation of IOM also significantly diverges in terms of the scope and extent of policy integration. Typically, fisheries management is excluded from oceans policy at both the national and regional level, although it is noteworthy that the Commission for the conservation of the North-East Atlantic (the OSPAR Commission) has recently begun to coordinate its activities with regional fisheries organizations in order to develop fully integrated management of the OSPAR area. Similarly, while IOM is increasingly ecosystem-based, often with an emphasis on the interface between the marine and coastal environment, it seldom, if ever, fully addresses land-based activities such as agriculture and industrial development that impact on the oceans through river and other land-based runoff. The institutional, political, and indeed financial challenges of developing IOM with both scope and depth—at all levels—are significant, and some commentators have expressed scepticism as to whether IOM is actually a rational and realistic goal.22

Despite the challenges associated with defining the concept, it is possible to deconstruct IOM into its principal components, which are common to integrated oceans policy at both the national and the regional level. These components, which constitute principles and concepts in their own right comprise: ecosystem-based management; the precautionary approach; environmental impact assessment (EIA); and spatial planning, which may include a focus on the coastal/marine interface and will commonly provide for a system of marine protected areas (MPAs). Finally, IOM necessarily requires a level of institutional coordination to manage multi-sectoral activities and to provide leadership in developing an overarching oceans policy. The components identified in this chapter are by no means exclusive to the application of IOM and might be characterized as contributing to what has more generally been described as ‘oceans governance’.23 However, applied in aggregate, these principles and concepts as a collective perform a function arguably more ambitious in depth and scope than that which could be achieved by isolated or partial application. Nevertheless, pulling IOM apart and identifying its core components serves a valuable function, in that it enables an assessment to be made as to the extent to which IOM has global application, and more significantly, the potential to be meaningfully applied in areas beyond national jurisdiction.

(p. 468) National Implementation of Integrated Oceans Management

Probably the earliest IOM initiative was adopted in Australia in 1975, with the passage of the Great Barrier Reef Marine Park Act.24 The Act goes beyond establishing the Great Barrier Reef as an MPA, and introduces a system of multiple use zoning designed to regulate and manage activities within the Park—such as fishing, tourism, shipping, and extractive industries—according to their impact on the multiple ecosystems found within the Park.25 More generally, Australia’s Oceans Policy was released in 199826 and comprises seven goals including the establishment of integrated oceans planning. Precaution, ecosystem-based management, environmental impact assessment, and spatial planning, including the creation of a network of MPAs, comprise key components of Australia’s oceans policy.27 Australia has eschewed the adoption of overarching legislation for the implementation of its oceans policy in favour of relying on existing legislation to implement its various components.28 Similarly, the dedicated infrastructure originally established to implement the Oceans Policy was dissolved in 2004, with the merger of the National Oceans Office into the marine division of the Department of the Environment.29 The transfer of the Oceans Policy from a trans-departmental organization to a single-sector department with an environmental focus, combined with provision for regional marine planning being made under the 1999 Environmental Protection and Biodiversity Act (EPBC),30 has undoubtedly contributed to a conservation-driven approach to IOM.31 Moreover, the scope of IOM in Australia is limited by the focus of the Oceans Policy on federal government initiatives and by the tension between the national government and the individual states and Northern Territory in respect of bioregional planning.32

(p. 469) The challenges of implementing an oceans policy in a federal State have also characterized the Canadian experience of IOM, which was initiated in 1996 with the adoption of the Oceans Act,33 and which has been more recently developed with the creation of an Oceans Strategy in 200234 and a National Oceans Action Plan in 2005.35 In contrast to Australia, IOM in Canada is founded in dedicated overarching legislation. However, while the Department of Fisheries and Oceans (DFO) has the principal role of coordinating the implementation of the Oceans Policy, individual responsibility for marine activities is divided among 27 Federal departments and agencies in addition to multiple organizations at the State and territory level.36 Integrated ocean management in Canada is primarily implemented through strategic or spatial planning within five ‘large ocean management areas’ (LOMAs).37 Spatial and integrated planning is most advanced thus far in the Eastern Scotian Shelf area with a comprehensive and complex Eastern Scotian Shelf Integrated Ocean Management Plan being adopted in 2007.38 Overall, however, progress on implementing the Canadian Oceans Policy has been relatively slow, impeded at times by constitutional and sectoral jurisdictional disputes.39

The most ambitious example of IOM implementation to date has been developed to apply within United Kingdom (UK) waters. In 2009, following an extensive trial period in the Irish Sea, the Marine and Coastal Access Act was adopted in England and Wales.40 The Act provides for the development of a Marine Policy Statement (MPS) designed to establish general policies for achieving sustainable development in the UK marine area and to provide a framework for preparing marine plans for eight large planning regions.41 The planning regions are divided into smaller planning areas and the 2009 Act requires marine plans to be developed in respect of (p. 470) each of these areas. To date, in England, planning has begun in the East Inshore and Offshore areas42 and in the South Inshore and Offshore areas.43 The 2009 Act also established the Marine Management Organisation (MMO), a non-departmental public body, and transferred to it decision-making powers from existing government departments and agencies in respect of a range of maritime activities including, inter alia, fishing, extractive industries, laying of cables and pipelines, dumping at sea, and scientific research.44 In contrast to both Canada and Australia, oceans policy in the UK is relatively well integrated with a designated agency responsible for implementing marine planning, managing a wide range of maritime activities including inshore fishing, and supporting marine conservation through the development of a network of MPAs.45 However, even this ambitious example of IOM is not entirely complete in scope: the management of fisheries beyond 12 nautical miles, for example, is managed largely externally to the UK under the EU Common Fisheries Policy, and decisions in respect of large infrastructure projects such as new offshore wind farms are managed by the Department of Energy and Climate Change rather than by the MMO.

Elsewhere in Europe, prompted by developments at the regional level,46 a number of States are in the process of implementing IOM primarily through the mechanism of MSP.47 For example, in 2004, Germany amended the 1996 German Federal Spatial Planning Act in order to extend the application of the Act to its exclusive economic zone (EEZ). It adopted a National Strategy for Integrated Coastal Zone Management in 2006 and drafted multiple-use marine spatial plans for areas of the North48 and Baltic Seas49 under its jurisdiction, which came into effect in 2009. The plans adopt a system of zoning designed to manage multiple activities and to provide for MPAs within which human impacts are (p. 471) reduced. Marine spatial planning and other measures have also been adopted by Belgium, the Netherlands, and Norway. Unusually, the integrated management plans adopted by Norway for the Barents Sea—Lofoten area and the Norwegian Sea, in 2006 and 2009 respectively, include all economic sectors including fisheries management.

In Asia, IOM is significantly less-well developed, although a number of States, including Indonesia50 and the Philippines,51 are involved in initiatives focusing on integrated coastal zone management and planning, with a particular emphasis on mitigating and adapting to the impact of sea-level rise and other consequences of climate change. Nevertheless, ecosystem-based planning and IOM is undoubtedly in the early stages of development in South Korea52 and China.53

The final development worthy of note in the context of IOM has taken place recently in respect of United States’ waters. Marine planning or spatial management has a relatively long lineage in certain states in the USA such as Massachusetts. However, in 2010, the Interagency Ocean Policy Task Force recommended the implementation of ‘comprehensive, integrated, ecosystem-based coastal and marine spatial planning and management in the United States’ and the establishment of a National Ocean Council (NOC) to implement the National Oceans Policy.54 The Recommendations of the Task Force were adopted by Executive Order in July 2010,55 which also established the NOC and charged it with implementing the National Oceans Policy, overseeing the development of marine spatial plans for the nine planning regions set out in the Recommendations, and coordinating activities among the 27 US Federal agencies with responsibility for maritime affairs.56 Notably, the Recommendations suggest that regional plans should address a diverse range of issues including management of resources, fisheries, security, transportation, and health.57 Good progress is being made with (p. 472) respect to developing IOM in the USA with the release of the National Ocean Policy Implementation Plan58 and the Regional Marine Planning Handbook in April 2013.59

Principles and environmental management concepts such as precaution, EIA and MPAs are integral to most regimes at the national level developed to protect the oceans environment and to manage maritime activities. However, a growing minority of States are going beyond the deployment of these governance tools, and developing overarching oceans policies and managing and planning activities on the basis of an integrated and ecosystem approach. The above non-exhaustive and necessarily brief survey demonstrates that while all examples of IOM comprise five core elements—the precautionary approach, EIA, ecosystem-based management, spatial planning, and designation of MPAs—its implementation diverges significantly among States. A minority, including the UK, is in the process of developing an ambitious integrated strategy that attempts to unify the process of regional ecosystem-based spatial planning with the management of most maritime activities under a unified legislative and administrative structure. Others, as illustrated by Australia, Canada, and the USA, are implementing IOM primarily through a sophisticated system of regional MSP guided by a national overarching policy. In some cases, States have chosen to adopt dedicated legislation for the purpose of implementing IOM and in others, such as Germany, terrestrial planning legislation has simply been extended to apply to the marine environment. Some States, such as Australia and the Netherlands, have opted not to adopt any legislative base for their oceans policy. All States have attempted to create or deploy administrative and political support for implementing IOM but that support varies from a dedicated organization with overall control for maritime activities (in the UK) to a body with a the principal function of coordinating the activities of multiple agencies with maritime functions (in Canada and the USA) to management within a non-dedicated existing government department (Australia). Nevertheless, despite the divergence in the practice of implementing IOM, there is little doubt that over the last decade oceans governance at the national level is increasingly—although not ubiquitously—integrated, ecosystem-based, and developed according to a long-term, overarching oceans policy.

(p. 473) Regional Implementation of Integrated Oceans Management

At the regional level, the implementation of IOM unsurprisingly mirrors developments at the national level, with progress being most advanced within European waters.60 Three of the four regional seas regimes within Europe—the Mediterranean, Baltic, and North East Atlantic—have been particularly active over the last decade in developing ecosystem-based integrated management approaches, with a particular emphasis on spatial and/or coastal planning. Furthermore, the European Union has also taken significant steps in developing an overarching integrated maritime policy of application to all 28 Member States.

The EU Integrated Maritime Policy (IMP) was released in 2007, accompanied by an Action Plan adopted later that year.61 The IMP was designed to identify policy synergies and to overcome sectoral divisions within the EU, and placed strong emphasis on MSP both offshore and the coastal/marine interface.62 In 2008, the European Parliament and Council adopted the Marine Strategy Framework Directive,63 which adopts an explicitly ecosystem approach to oceans governance by dividing European waters into a series of European Marine Regions on the basis of environmental and geographical criteria, and requires the littoral States to cooperate in developing strategies for the management of these regions. The IMP was reviewed in 2009,64 and its principal recommendation, to fund a work programme implementing the core components of the Policy, was adopted in 2011.65 The most recent review of the IMP noted its contribution to supporting economic (p. 474) development and recovery within the EU as well as its impact on improving environmental management within the region.66 This is an ambitious initiative that involves the coordination of policies within 28 States and extends from the Arctic to the Mediterranean and from the Black Sea to the Atlantic, and even beyond, to the extent that it is applied to dependent territories of European States in the Caribbean and the Pacific.67 The greatest challenge to the success of the IMP lies in its implementation. Although the IMP relies heavily on MSP as the means to implement IOM within European waters, it currently lacks a mechanism to mandate the application of MSP within Member States, and it has been questioned as to whether MSP is even an EU competence.68 More pragmatically, the implementation of MSP, particularly within Northern waters, has been criticized as permitting the strategic development of certain activities—notably the establishment of offshore wind farms—at the expense of other activities in a so-called ‘race for space’.69 More generally, the scope of integration between policies within the EU is far from complete with, in particular, a failure to fully coordinate environmental and fisheries policies being subject to criticism.70 Nevertheless, the IMP and other EU initiatives have undoubtedly proven influential in the development and implementation of IOM at both the national level and within the context of the four principal regional seas regimes that operate within Europe.

Sub-regionally, IOM is most advanced in the Baltic Sea.71 The 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention) provided early and robust endorsement of both the precautionary principle and EIA as tools for the protection of the Baltic marine environment.72 In 1994, the States party to the Helsinki Convention initiated the process of establishing (p. 475) a network of MPAs,73 and, by 2014, 163 Baltic Sea Protected Areas (BSPAs) covering 11.7 per cent of the Baltic marine and coastal area had been established.74 Ecosystem-based and integrated spatial management provided for the foundation of the 2007 Helsinki Commission (HELCOM) Baltic Sea Action Plan,75 and, in 2010, a Working Group on MSP was launched by the Helsinki Commission and the Vision and Strategies around the Baltic Sea (VASB) Committee on Spatial Planning and Development of the Baltic Sea Region.76 That year HELCOM and VASAB adopted the Baltic Sea Broad-scale Maritime Spatial Planning Principles,77 which set out 10 principles designed to provide guidance for achieving better coherence in developing MSP in the Baltic Sea region. The principles include the ecosystem approach; the precautionary principle; the need to adopt a long-term perspective and overall environmental and economic goals; coherent terrestrial and maritime spatial planning; and effective transnational coordination and consultation. These general principles alongside more detailed guidance and management frameworks were endorsed in the Regional Baltic MSP Roadmap 2013–2020, which was adopted as part of the 2013 HELCOM Ministerial Declaration.78 The Regional Baltic MSP Roadmap also set out short- and medium-term goals for the implementation of MSP in the Baltic, including the drafting of guidelines relating to the application of ecosystem-based management and public participation in MSP by 2015, and the application of those guidelines by 2018.79 Thus far, planning is most advanced in respect of the Bothnian Sea, which has benefited from the implementation of a MSP pilot project carried out jointly by the two littoral States concerned, Sweden and Finland.80

(p. 476) In the North Sea and North-east Atlantic, ecosystem-based integrated management has an equally dynamic recent history.81 The precautionary approach was arguably conceived as an environmental principle of international application in the crucible of the North Sea conferences and it, alongside the ecosystem-based approach provide much of the foundation for environmental management under the 1992 Convention for the Protection of the Marine Environment of the North-east Atlantic (OSPAR Convention).82 Ecosystem-based management has since been endorsed in numerous declarations and decisions under the OSPAR Convention, most recently in the 2010–2020 North-East Atlantic Strategy,83 where it was described as the ‘overarching principle’ in the OSPAR Commission’s work.84 Integrated ecosystem-based management also provides the basis for oceans governance as articulated within several North Sea declarations,85 in particular, the 2006 Gothenburg Declaration.86 The creation of a network of representative MPAs within the OSPAR area has been a key component of the OSPAR maritime strategy since 200387 and, significantly, in 2010, the OSPAR Commission established the first global network of six MPAs on the high seas.88 As of 1 January 2013, 333 MPAs had been designated, comprising 5.17 per cent of the OSPAR maritime area.89 The 2010–2020 North-East Atlantic Environment Strategy notes that the OSPAR Convention is the principal platform through which Member States should implement the EU Maritime Framework Directive90 and stipulates that the OSPAR Commission will ‘develop, and encourage application of, regionally coordinated tools for the implementation of integrated management of human (p. 477) activities and ecosystems. This includes tools such as marine spatial planning, ICZM and cumulative impact assessment.’91 Like the Helsinki Commission, the OSPAR Commission has responsibility for the management of all maritime activities within the region with the exception of fishing. Moreover, both Commissions are active in their cooperation with other regional bodies that have regional marine-related responsibilities, and the OSPAR Commission, in particular, is charged with cooperating with fisheries organizations in respect of mutually relevant matters.92

In contrast to the seas of Northern Europe, where IOM is principally driven by the need to manage competing offshore activities and implemented through MSP, in the Mediterranean, IOM is much more focused on the coastal/marine interface, responding directly to the particular vulnerability of the Mediterranean basin to pollution and development.93 The core components of IOM including the precautionary principle, EIA and ecosystem-based management also provide the foundation for oceans governance as set out in the 1976 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (amended and renamed in 1995) (Barcelona Convention).94 The implementation of ecosystem-based management, in particular, has benefited from detailed consideration within several decisions adopted by the meeting of parties to the Barcelona Convention,95 and features prominently within the revised Mediterranean Action Plan adopted in 1995.96

The 1995 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA Protocol) provides for the creation of a network of specially protected areas both within the jurisdiction of States and on the high seas.97 There are currently 32 sites of Specially Protected Areas of Mediterranean (p. 478) Importance (SPAMI), and one site incorporates an area of high seas within its parameters.98 Integrated management, particularly in respect of the coastal/marine interface, is identified as a key management tool under both the 1995 Barcelona Convention99 and the revised Mediterranean Action Plan.100

Significantly, in 2008, the States party to the Barcelona Convention adopted a Protocol to the Convention on Integrated Coastal Zone Management in the Mediterranean (ICZM Protocol), which entered into force in 2011. Under the Protocol, ICZM is defined as:

…a dynamic process for the sustainable management and use of coastal zones, taking into account at the same time the fragility of coastal ecosystems and landscapes, the diversity of activities and uses, their interactions, the maritime orientation of certain activities and uses and their impact on both the marine and land parts.101

The implementation of ICZM under the Protocol is underpinned by the ecosystem approach with a strong emphasis on EIA and strategic planning. Moreover, the Protocol recognizes the importance of coordination and cooperation among terrestrial and marine agencies in the implementation of ICZM. However, although the Protocol can be regarded as providing the most prominent legal commitment to the process of ICZM and the implementation of IOM more generally at the regional level, its scope is not entirely comprehensive. For example, it applies (unless the parties express otherwise) to the seaward limit of the territorial sea and to the land area under the jurisdiction of competent coastal units as defined by the parties.102 While this focus on the coastal/marine interface reflects the overall objectives of the Protocol, the arbitrary parameters of its application are not necessarily coterminous with appropriate ecological boundaries. Moreover, although the Barcelona Convention and its Protocols are committed to IOM in the Mediterranean more generally, in contrast to the seas of Northern Europe, there has been negligible development in respect of MSP beyond the territorial sea within the region. Finally, there is minimal recognition of the interaction between fisheries management and environmental protection more generally in the Mediterranean. Nevertheless, at the most recent meeting of the States party to the Barcelona Convention in 2012, the parties committed to strengthening the implementation of integrated governance and establishing a network of representative MPAs,103 and adopted an Action Plan for the implementation of the ICZM Protocol in the Mediterranean.104

(p. 479) Outside of European waters, regional commitment to IOM is much weaker. Although most, if not all, regional seas regimes endorse a precautionary approach to environmental decision-making and utilize tools such as EIA, the designation of MPAs, and, to a lesser extent, the application of ecosystem-based management, few have made meaningful progress in actually integrating maritime policies across multiple sectors to date. Nevertheless, there are signs that this may be changing. For example, the 2010 Amended Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean,105 which is not yet in force, requires parties to promote ICZM in addition to applying ecosystem-based management, EIA, the precautionary approach, and the designation of MPAs in their environmental management of the region.106 Moreover, although a recent feasibility assessment indicated that the time is not yet right for the adoption of an ICZM protocol to the Convention,107 the 2008–2012 Work Programme for the Nairobi Convention promotes an ecosystem-based, multi-sector approach to policy and management, taking into consideration whole systems rather than individual components of those systems and focusing on ecosystem integrity as the primary goal of oceans governance.108 Similarly, within the Caribbean,109 the emphasis thus far has been on oceans governance through precaution, EIA, and the designation of MPAs.110 However, the 1983 Cartagena Convention and the 1990 Cartagena SPA Protocol both emphasize the importance of an ecosystem-based approach to managing environmental impacts in the region,111 and the 1999 Protocol Concerning Pollution from Land-Based Activities, which entered into force in 2010, promotes ‘integrated coastal area management’ as a key tool to address land-based sources of pollution.112 Nevertheless, despite the endorsement (p. 480) of an integrated management approach to the Caribbean Sea by the UN General Assembly over a decade ago,113 IOM in this region is to date characterized more by promise than by progress.

Finally, it is worth noting that within a number of regions littoral States are cooperating and collaborating outside of the formal framework of a regional seas regime in the designation of MPAs in waters under their jurisdiction with a view to establishing an ecologically coherent network across the region. Examples include: the Micronesia Challenge, which aims to protect 30 per cent of near-shore marine resources by 2020 in waters under the jurisdiction of the Marshall Islands, Guam, Palau, and the Commonwealth of the Northern Marianas Islands;114 the Eastern Tropical Pacific Seascape, which is designed to establish a network of MPAs within national waters off the coasts of Columbia, Costa Rica, Panama, and Ecuador;115 the Caribbean Challenge, under which 10 Caribbean nations have committed to protecting 20 per cent of their nearshore and marine environments by 2020;116 and the Coral Triangle Initiative, under which Indonesia, Malaysia, Papua New Guinea, the Philippines, the Solomon Islands, and Timor Lesté are cooperating to create a network of MPAs.117 All four initiatives were praised by the UN General Assembly in 2013, which noted their mutually supportive aims ‘to create and link domestic marine protected areas to better facilitate ecosystem approaches’ and affirmed ‘the need for further international cooperation, coordination and collaboration in support of such initiatives’.118

Implementation of Integrated Oceans Management in ABNJ: Progress and Prospects

As noted in Section 1 of this chapter, the concept of IOM has been endorsed and recommended across a range of institutions and in respect of all areas of the oceans. However, oceans governance in ABNJ today remains divided between maritime zones—most notably based on the distinction between the water column and the (p. 481) seabed—and among sectors. In no sense can it be described as ‘integrated’. However, progress is being made in respect of each of the components of IOM, which as identified above, are integral to its effective implementation at both the national and regional level: ecosystem-based management; the precautionary approach; EIA; MPAs; MSP; and institutional integration and coordination. This section will provide an abbreviated analysis of the implementation of each principle or concept in ABNJ119 with a view to assessing the overall prospects of for IOM across jurisdictional boundaries and in all parts of the oceans.

5.1  Ecosystem-based management

Although the LOSC acknowledges the oceans as an ‘integrated whole’ in its preamble, the Convention contains few references to the concept of the ecosystem,120 and primarily conceives oceans governance as being largely zonal and sectoral in both principle and application. Nevertheless, ecosystem approaches to oceans governance have been subsequently endorsed at the UN conferences on environment and development in 1992, 2002, and 2012, as well as by all UN General Assembly Resolutions on oceans and the law of the sea over the last decade.121 The ecosystem approach has also provided the primary focus for two reports of the UN Open-ended Informal Consultative Process—in 2003122 and 2006123—and underpins the approaches of other instruments with mandates associated with oceans governance such as the 1992 CBD.124 The application of the ecosystem approach in ABNJ is particularly advanced in the context of fisheries management125 and is promoted as best practice by the 1995 UN Fish Stocks Agreement (FSA),126 as (p. 482) well as by the 1995 FAO Code of Conduct for Responsible Fisheries127 and the FAO International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, adopted in 2008.128 However, there is a significant difference between the ecosystem approach, which increasingly characterizes fisheries management129 and ecosystem-based management,130 which ‘is fundamentally a place-based approach, where the ecosystem represents the place’.131 It is ecosystem-based management that is integral to the implementation of IOM, and which is increasingly providing a foundation for the development of national and regional oceans policy. Globally, particularly in ABNJ, ecosystem-based management—in contrast to the ecosystem approach—is under-developed and, thus far, principally confined to the context of designating MPAs in ABNJ.132

5.2  Precautionary approach

The precautionary approach, like the ecosystem approach, is also absent within the text of the LOSC. Despite this, however, the ‘language of precaution has entered the lexicon of the law of the sea’133 and the precautionary approach is now an integral component of oceans governance and widely applied across jurisdictions and sectors.134 Furthermore, the International Tribunal for the Law of the Sea (ITLOS) has recently confirmed its application to activities taking place in the Area135 and provided support for its status as a principle of customary international law of general and universal application.136 There can be no doubt that the precautionary approach, (p. 483) an integral component of IOM at the national and regional level, is of general application globally, and applies within ABNJ.

5.3  Environmental impact assessment

The prior assessment of the environmental impacts of activities likely to have a detrimental effect on the oceans is, like the precautionary approach, an integral tool of oceans governance. The basic obligation to carry out an EIA provided for in Article 206 of the LOSC has since been broadened in both scope and depth within numerous other global and regional instruments such as the CBD.137 The principle has been endorsed as a tool for marine environmental management by the UN conferences held in 1992, 2002, and 2012, as well as in UN General Assembly resolutions on the oceans and the law of the sea over the last decade.138 In ABNJ,139 EIA is required in respect of activities such as dumping at sea140 and the exploitation of minerals in the Area141 and, increasingly, measures analogous to EIA have been applied in the context of fisheries management, particularly in relation to new and exploratory fisheries.142 More generally, the CBD has recently developed guidelines to support the application of EIA143 in ABNJ,144 and it has been identified as a key component of oceans environmental governance by the UN BBNJ Working Group.145 In fact, EIA is now so widely applied that it has been recognized as a general principle of international environmental law where the impacts of an activity have transboundary or commons implications.146 Nevertheless, the (p. 484) procedural and substantive components of EIA vary significantly between sectors and, as yet, there is no overarching regime for the application of EIA in ABNJ.

5.4  Marine protected areas

The designation of MPAs at the national and regional level is an integral component of IOM and a principal means of implementing ecosystem-based management.147 The designation of MPAs in ABNJ, however, is not uncontroversial owing to the absence of a clear legal mandate permitting such designation under the LOSC, and the complex range of jurisdictional issues arising from the separation of the seabed and the water column into distinct regulatory zones.148 Moreover, a relative lack of information on the ecological processes within, and environmental state of, ABNJ represents a more pragmatic challenge to the designation of MPAs beyond State jurisdiction.149 Nevertheless, high seas MPAs have been created under a number of regimes including the 1946 International Convention for the Regulation of Whaling,150 the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention),151 and the 1973/78 International Convention for the Prevention of Pollution (MARPOL).152 However, with the exception of the regional network of seven areas established recently in the OSPAR high seas area noted above,153 high seas MPAs thus far are largely focused on a single or a narrow range of issues such as shipping or fishing rather than being multifunctional.154 A broader notion of the MPA, as part of a more integrated approach to oceans management, has nevertheless been endorsed by the UN General Assembly—most (p. 485) recently in the 2012 The Future We Want Resolution,155—and by the CBD.156 Multifunctional high seas MPAs are also under active consideration as part of the mandate of the UN BBNJ Working Group.157 Designating MPAs in ABNJ, however, represents only part of the challenge. In order to support the implementation of IOM, such MPAs need to be properly integrated into oceans management more generally and actively managed alongside other spatial policies.158

5.5  Marine spatial planning

Marine spatial planning has, in less than a decade, ‘become one of the most widely endorsed tools for integrated management of coastal and marine environments’.159 It is seen as key to implementing ecosystem-based management160 and can be defined as ‘a public process of analyzing and allocating the spatial and temporal distribution of human activities in marine areas to achieve ecological, economic, and social objectives that are usually specified through a political process’.161 The challenge of implementing MSP within ABNJ is formidable, but even within areas under the jurisdiction of States, the ocean is a dynamic environment that changes rapidly with the tides and seasons, and which is three dimensional and, consequently, potentially permits multiple activities to take place simultaneously on the surface, in the water column and on or under the seabed.162 Some commentators have abandoned the notion of physical space within the oceans altogether. Stephen Jay, for example, argues that ‘the emphasis is less upon space as a pre-existing plane upon which things can be located, arranged and mapped, and more upon space as generated by inter-relationships, both within and beyond discrete areas and time periods’.163

(p. 486) Within the LOSC the strongest implicit reference to MSP can be found in Article 123, which encourages States to cooperate and coordinate their policies in respect of the management of enclosed or semi-enclosed seas. More generally, the LOSC relies on the principle of ‘due regard’ as the predominant tool for arbitrating between activities competing for space on the high seas.164 In the absence of an overarching global oceans organization, however, it is difficult to see how MSP can be effectively applied in ABNJ. Nevertheless, the competition for ocean space between activities and—potentially conflicting—interests is as existent in ABNJ as it is within coastal areas, and this competition is likely to intensify as novel activities such as geo-engineering and bioprospecting emerge and new threats, such as ocean acidification, are identified. The importance of developing tools and processes for arbitrating between competing use of ocean space was recognized by the General Assembly in 2012 The Future We Want Resolution, which called for not only the creation of ecologically representative and well-connected MPAs but also the adoption of ‘other area-based conservation measures’.165 The broader language of ‘area-based conservation’ was also adopted by the CBD in Aichi Biodiversity Target 11, and the parties to the Convention have recently recommended the development of MSP in areas both within and beyond national jurisdiction.166 More specifically, MSP has been implicitly endorsed by the 1995 FAO Code of Conduct for Responsible Fisheries,167 and there is increasing academic support for its adoption to support effective ecosystem-based fisheries management.168 This notwithstanding, however, the most prodigious challenge to realizing MSP in ABNJ lies not in the implementation of ecologically focused principles but, rather, in creating the appropriate institutional infrastructure to manage and coordinate the process of spatial planning and associated management.

(p. 487) 5.6  Institutional integration of oceans management

The creation of overarching, integrated institutional infrastructure is integral to the success of implementing IOM at both the national and the regional level. Effective IOM relies on political coordination in the identification of ecological, sociological, and economic goals as well as administrative implementation, oversight or, at the very least, coordination in the management of oceans activities. At the global level, while the LOSC provides the overall, constitutional framework for the regulation of all maritime activities there is no overarching oceans body with a mandate to implement the Convention in its entirety. Instead, there are numerous institutions with designated mandates to manage activities such as (but by no means limited to) shipping (the IMO), fishing (regional fishery management organizations and the FAO), scientific research (Intergovernmental Oceanographic Commission (UNESCO)), and environmental protection (UNEP). There is little formal coordination among these institutions and even where an organization has multiple mandates, such as the IMO, internal institutional divisions often separate the management of maritime activities. Moreover, many other bodies and regimes with environmental, transport, and even commercial mandates have responsibility for activities and issues that impact directly or indirectly upon the oceans. Without institutional integration between, or coordination among, global oceans bodies it is unlikely that IOM can be implemented in a manner which is both effective and meaningful.

Institutional integration and the coordination of agencies and regimes with overlapping or at least mutually supportive mandates has dominated the development of international environmental law over the last decade, particularly within the fields of biodiversity conservation and the management of chemicals and hazardous wastes.169 Less progress has been made by institutions with responsibilities for oceans governance170 although two developments in this context are worthy of note. First, the UN-Oceans, which was established in 1993171 and which constitutes an inter-agency coordination network on oceans issues under the auspices of the UN. Its objective is to enhance cooperation among oceans institutions and, in the past, has focused on issues such as biodiversity in ABNJ, climate change, fisheries, and MPAs. In 2013, its mandate was renewed and revised by the UN General Assembly, and UN-Oceans is explicitly tasked with strengthening the coherence of UN oceans-related activities through planning, information exchange and the (p. 488) identification of areas suited to collaboration and the creation of synergies.172 The second initiative comprises The Oceans Compact, which was instituted by the UN Secretary General in 2012 in order to respond to the challenges set out in The Future We Want UN General Assembly Resolution.173 Its mandate is to adopt pragmatic strategies to increase cross-sectoral coordination and cooperation at national, regional, and global levels as well as within the UN system in order to address the cumulative impacts of sectoral activities on the marine environment.174 The relationship between these two initiatives with parallel, if not indistinguishable, mandates is unclear and it must be noted that progress in improving collaboration and developing synergies among oceans institutions has been negligible thus far despite the ostensible operation of UN-Oceans for over 20 years.

Nevertheless, some promise of a coordinated institutional approach lies in the prospect of an instrument dedicated to managing oceans activities in ABNJ, most likely in the form of an Agreement to the LOSC. The UN BBNJ Working Group, which has been charged with exploring the feasibility of such an instrument, has emphasized the necessity of an integrated approach ‘to the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction’ and expressed support for ‘existing and enhanced cooperation among relevant States, institutions, organizations and sectors to achieve better management of, and planning for, sustainable multiple uses of marine biodiversity in areas beyond national jurisdiction’.175 Nevertheless, even in the event that such an instrument is adopted, it remains to be seen whether it can facilitate meaningful coordination among a broad range of institutions including those responsible for shipping and fishing in ABNJ.

Concluding Remarks

Until recently, the history of the law of the sea and oceans governance was defined by division: division in respect of maritime zones, sectoral competence and jurisdictional mandates. However, at all levels of oceans governance—national, regional, and global—it is now recognized that fragmented and sector-based (p. 489) management ‘is a major contributor to deteriorating ocean health’.176 Consequently, the last 15 years have witnessed a remarkable sea change in approaches to oceans governance with the development of strategies that seek to integrate policies across sectors, and proactively manage multiple activities within ecological boundaries with a view to preserving and enhancing valuable ecosystem services. Integrated oceans management is most advanced at the national level to date although rapid developments to support the implementation of IOM are taking place within European waters and as well as within a number of other regions. Practice in the implementation of IOM varies significantly between States and regions but variation in of itself is by no means problematic. Deconstructing IOM reveals six core components—ecosystem-based management, the precautionary approach, EIA, the designation of MPAs, MSP, and the integration of institutional infrastructure—and it is the collective implementation of these core components that results in an integrated approach to oceans management. Nevertheless, no one solution fits all, and managing the interaction between the core components of IOM permits a sufficiently flexible tool capable of facilitating the development of measures designed to address the coastal/marine interface, the management of competing activities in the offshore area, or which focus on the vulnerability of a particular ecosystem. The challenge facing States and regions in the future is how to expand both the scope and depth of IOM in order to achieve comprehensive ecosystem-based management of waters under their jurisdiction, including the incorporation of fisheries management and ecologically relevant terrestrial activities into oceans policies.

In ABNJ, the challenge is rather different. Three of the six components of IOM are generally applied or are close to being of general application within ABNJ. Progress is less advanced with respect to spatial or place-based management tools including the designation of MPAs. Similarly, integration or even coordination among oceans institutions is also underdeveloped. In contrast to the national and regional level where MSP and/or ICZM are essential to the effective implementation of IOM, at the global level, it is institutional integration/coordination that is likely to prove critical. Without an overarching oceans body—which is neither feasible nor, arguably, desirable—proactive spatial planning (outside of the parameters of MPAs) is simply quixotic. However, a level of integration can be achieved through much greater coordination and cooperation between international institutions mandated to manage ocean-based activities or with responsibility for the health of the marine environment. The zonal approach to oceans environmental management, which underpins the LOSC, is unlikely to be abandoned within ABNJ but, as Tanaka suggests, ‘the contemporary law of the sea should be considered as a dialectic legal system between the (p. 490) zonal and integrated management approaches’.177 Moreover, the time for developing IOM within ABNJ is now: the on-going negotiations for an instrument or agreement under the LOSC for the protection and management of biodiversity beyond national jurisdiction providing the best opportunity to develop a more integrated approach to oceans management in ABNJ.

Footnotes:

1  See generally BS Halpern et al, ‘A Index to Assess the Health and Benefits of the Global Ocean’ (2012) 488 Nature 615.

2  Ibid. See also United Nations Environment Programme (UNEP), Marine and Coastal Ecosystems and Human Well-being. A Synthesis report based on the findings of the Millennium Ecosystem Assessment (UNEP 2006).

3  Census of Marine Life, Scientific Results to Support the Sustainable Use and Conservation of Marine Life. A Summary of the Census of Marine Life for Decision Makers (2010) 4, available at <http://www.coml.org/policy-report>.

4  JA Ekstrom et al, ‘A Tool to Navigate Overlaps in Fragmented Ocean Governance’ (2009) 33 Marine Policy 532, 532.

5  See R Barnes, ‘The Law of the Sea Convention and Integrated Regulation of the Oceans’ (2012) 27 International Journal of Marine and Coastal Law 859, 860; A Underdal, ‘Integrated Marine Policy. What? Why? How?’ (1980) 4 Marine Policy 159, 159.

6  Information on these developments at a national level, with a particular emphasis on marine spatial planning can be found at <http://www.unesco-ioc-marinesp.be/msp_around_the_world>.

7  See the discussion in Section 4 below.

8  UNEP, Agenda 21 (1992), ch 17 [17.1], [17.5], [17.6], and [17.22(c)], available at <http://sustainabledevelopment.un.org/content/documents/Agenda21.pdf> (hereinafter Agenda 21).

9  Plan of Implementation of the World Summit on Sustainable Development (WSSD) (2002) [30], [31(g)], and [32(c)] reproduced in Report of the World Summit on Sustainable Development (Johannesburg South Africa, 26 August–2 September 2002), UN Doc A/CONF.199/20 (2002) 1 (hereinafter WSSD Implementation Plan).

10  Endorsed by the General Assembly in UNGA Res A/66/288 (2012) [158].

11  See eg UNGA Res A/67/68 (2012) 2.

12  See eg United Nations Secretary General, Oceans and the Law of the Sea: Report of the Secretary General to the General Assembly, UN Doc A/68/71/Add.1 (2013) [80], [103]–[104].

13  See the Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its Twelfth Meeting, UN Doc A/66/186 (2011) [22].

14  See Agenda 21, n 8; WSSD Implementation Plan, n 9; UNGA Res A/66/288 (2012).

15  For example, in 2012, the UN Secretary General noted that ‘[i]ntegrated management and ecosystem approaches are essential to mitigate the cumulative impacts of sectoral activities taking place beyond areas of national jurisdiction.’ United Nations Secretary General, Oceans and the Law of the Sea: Report of the Secretary General to the General Assembly, UN Doc A/67/79 (2012) [115].

16  CBD Decision X/29 (2010), Marine and coastal biodiversity [15].

17  See the Letter dated 8 June 2012 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, UN Doc A/67/95 (2012) [13].

18  See generally NA Hu, ‘Integrated Oceans Policy-making: An Ongoing Process or a forgotten Concept?’ (2012) 118 Coastal Management 107; Y Tanaka, A Dual Approach to Ocean Governance. The Cases of Zonal and Integrated Management in the Law of the Sea (Ashgate Farnham Surrey 2008).

19  See B Cicin-Sain et al, ‘Education and Training in Integrated Coastal Management: Lessons from the International Arena’ (2000) 43 Ocean & Coastal Management 29; MF Frost, ‘The Convergence of Integrated Coastal Zone Management and the Ecosystems Approach’ (2009) 52 Ocean and Coastal Management 294.

20  F Douvere, ‘The Importance of Marine Spatial Planning in Advancing Ecosystem-based Sea Use Management’ (2008) 32 Marine Policy 762, 767.

21  S Jay, G Ellis, and S Kidd, ‘Marine Spatial Planning: A New Frontier?’ (2012) 14 Journal of Environmental Policy and Planning 1, 2.

22  See J Lévy, ‘A National Ocean Policy: An Elusive Quest’ (1993) 17 Marine Policy 75; DC Watt, ‘An Integrated Marine Policy. A Meaningful Concept?’ (1990) 14 Marine Policy 299.

23  See D Freestone, ‘Modern Principles of High Seas Governance: The Legal Underpinnings’ (2009) 39 International Environmental Policy and Law 44; DR Rothwell and T Stephens, The International Law of the Sea (Hart Publishing Oxford 2010) ch 19.

24  Great Barrier Reef Marine Park Act 1975 (Cth), as amended.

25  See JC Day, ‘Zoning—Lessons from the Great Barrier Reef Marine Park’ (2002) 45 Ocean and Coastal Management 139.

26  Australia’s Oceans Policy (Vols 1 and 2), in Australian Government Department of the Environment, Publications Archive, available at <http://www.environment.gov.au/about-us/publications/archive>.

27  For an overview of Australian oceans policy see M Tsamenyi and R Kenchington, ‘Australian Oceans Policymaking’ (2012) 40 Coastal Management 119.

28  Ibid, 123.

29  Ibid, 127.

30  Environmental Protection and Biodiversity Act 1999 (Cth) as amended, § 176.

31  Tsamenyi and Kenchington, n 27, 129.

32  E Foster, M Haward, and S Coffen-Smout, ‘Implementing Integrated Oceans Management: Australia’s South East Regional Marine Plan (SERMP) and Canada’s Eastern Scotian Shelf Integrated Management (ESSIM) Initiative’ (2005) 29 Marine Policy 391, 392–3; G Wescott, ‘Stimulating Vertical Integration in Coastal Management in a Federated Nation: The Case of Australian Policy Reform’ (2009) 37 Coastal Management 501, 511.

33  Oceans Act, SC 1996, c 31 (Canada).

34  Canada’s Oceans Strategy: Policy and Operational Framework for Integrated Management of Estuarine, Coastal and Marine Environments in Canada (2002), available at <http://www.dfo-mpo.gc.ca/oceans/publications/cosframework-cadresoc/pdf/im-gi-eng.pdf>.

35  Canada’s Oceans Action Plan (2005), available at <http://www.dfo-mpo.gc.ca/oceans/publications/oap-pao/pdf/oap-eng.pdf>.

36  T McDorman and A Chircop, ‘Canada’s Oceans Policy Framework: An Overview’ (2012) 40 Coastal Management 133, 129.

37  Ibid, 142–3.

38  See W Flannery and M Ó Cinnéide, ‘Deriving Lessons Relating to Marine Spatial Planning from Canada’s Eastern Scotian Shelf Integrated Management Initiative’ (2012) 14 Journal of Environmental Policy and Planning 97.

39  For a discussion of some of these disputes which have arisen in the context of the Eastern Scotian Shelf Integrated Management Initiative, see ibid, 100.

40  Marine and Coastal Access Act 2009, c 23 (UK). See also the Marine (Scotland) Act 2010 asp 5 (Scot) and the Marine Act (Northern Ireland) 2013 c 10 (NI).

41  Marine and Coastal Access Act, n 40, §§ 44 and 49. The MPS was formally adopted in 2011 and is available at <https://www.gov.uk/government/publications/uk-marine-policy-statement>.

42  For details on progress, see UK Government, East Inshore and East Offshore Marine Plan Areas (2004), available at <http://www.marinemanagement.org.uk/marineplanning/areas/east.htm>.

43  For details on progress, see UK Government, South Inshore and South Offshore Marine Plan Areas (2014), available at <http://www.marinemanagement.org.uk/marineplanning/areas/south.htm>.

44  Marine and Coastal Access Act, n 40, ch 2.

45  See generally S Kidd, ‘Rising to the Integration Ambitions of Marine Spatial Planning: Reflections from the Irish Sea’ (2013) 39 Marine Policy 273.

46  Discussed in Section 4 below.

47  For an overview of European initiatives, see P Drankier, ‘Embedding Maritime Spatial Planning in National Legal Frameworks’ (2012) 14 Journal of Environmental Policy & Planning 7.

48  Ordinance on Spatial Planning in the German EEZ in the North Sea, BGBI I, 2009, 3107 (21 September 2009) (Germany), available at <http://www.bsh.de/en/Marine_uses/Spatial_Planning_in_the_German_EEZ/documents2/ordinance_north_sea.pdf>; Spatial Plan for the German Exclusive Economic Zone in the North Sea, available at <http://www.bsh.de/en/Marine_uses/Spatial_Planning_in_the_German_EEZ/documents2/Spatial_Plan_North_Sea.pdf>.

49  Ordinance on Spatial Planning in the German EEZ in the Baltic Sea, BGBI I, 2009, 3861 (10 December 2009) (Germany), available at <http://www.bsh.de/en/Marine_uses/Spatial_Planning_in_the_German_EEZ/documents2/ordinance_baltic_sea.pdf>; Spatial Plan for the German Exclusive Economic Zone in the Baltic Sea, available at <http://www.bsh.de/en/Marine_uses/Spatial_Planning_in_the_German_EEZ/documents2/Spatial_Plan_Baltic_Sea.pdf>.

50  AR Farham and S Lim, ‘Integrated Coastal Zone Management Towards Indonesia Global Ocean Observing System (INA-GOOS): Review and Recommendation’ (2010) 53 Ocean and Coastal Management 421.

51  RK Larsen, JM Acebes, and A Belan, Philippines Integrated Coastal Management: Diverging Stakeholder Agendas and Elite Co-option in the Babuyan Islands, Stockholm Environment Institute Working Paper (2010).

52  See SG Kim and H Choi, ‘The Evaluation of the 2nd Ocean Plan in Korea: Focused on the Implementing Power of the Plan’ (2013) 41 Coastal Management 470.

53  See K Zou, ‘China’s Ocean Policymaking: Practice and Lessons’ (2010) 40 Coastal Management 145.

54  White House Council on Environmental Quality, Final Recommendations of the Interagency Ocean Policy Task Force (19 July 2010) 4, 6, 19–27, 32, and 41–69, available at <http://www.whitehouse.gov/files/documents/OPTF_FinalRecs.pdf>.

55  Executive Order 13547 (19 July 2010), available at <http://www.whitehouse.gov/files/documents/2010stewardship-eo.pdf>.

56  Ibid. See also National Oceans Council website, at <http://www.whitehouse.gov/administration/eop/oceans>.

57  Final Recommendations of the Interagency Ocean Policy Task Force, n 54, 52.

58  National Oceans Council, National Oceans Policy Implementation Plan (April 2013), available at <http://www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf>.

59  National Oceans Council, Marine Planning Handbook (July 2013), available at <http://www.whitehouse.gov//sites/default/files/final_marine_planning_handbook.pdf>.

60  For a general introduction to IOM in European waters, see J Reis, T Stojanovic, and H Smith, ‘Relevance of systems approaches for implementing Integrated Coastal Zone Management principles in Europe’ (2014) 43 Marine Policy 3.

61  ‘Communication from the European Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions’, An Integrated Maritime Policy for the European Union, Doc COM(2007) 575 Final (10 October 2007).

62  T Koivurova, ‘Integrated Maritime Policy of the European Union: Challenges, Successes, and Lessons to Learn’ (2012) 40 Coastal Management 161, 164–6. See also W Qiu and PJS Jones, ‘The Emerging Policy Landscape for Marine Spatial Planning in Europe’ (2013) 39 Marine Policy 182.

63  Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy, OJ L 164/19 (hereinafter Marine Strategy Framework Directive).

64  ‘Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions’, Progress Report on the EU’s Integrated Maritime Policy, Doc COM(2009) 540 Final (15 October 2009).

65  Regulation No 1255/2011 of the European Parliament and of the Council of 30 November 2011 establishing a Programme to support the further development of an Integrated Maritime Policy, OJ L/321/1. The 2011–2012 Programme of Work had a budget of 40 million Euros.

66  ‘Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions’, Progress Report on the EU’s Integrated Maritime Policy, Doc COM(2012) 491 Final.

67  R Churchill, ‘The European Union and the Challenges of Marine Governance: From Sectoral Response to Integrated Policy’ in D Vidas and PJ Schei (eds), The World Ocean in Globalisation. Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (Martinus Nijhoff Leiden 2011) 395, 395.

68  Qiu and Jones, n 62, 188–9. Nevertheless, the European Commission issued guidance for States on MSP in 2008 and, in 2013, proposed the adoption of a framework directive on MSP and integrated coastal management. For the 2008 guidance, see: ‘Communication from the Commission’, Roadmap for Maritime Spatial Planning: Achieving Common Principles in the EU, Doc COM(2008) 791 Final (25 November 2008). For the 2013 draft Directive see ‘Proposal for a Directive of the European Parliament and of the Council’, Establishing a framework for maritime spatial planning and integrated coastal management, Doc COM(2013) 133 Final (12 March 2013).

69  Qiu and Jones, n 62, 187.

70  Ibid.

71  See generally H Backer, ‘Transboundary Maritime Spatial Planning: A Baltic Sea Perspective’ (2011) 15 Journal of Coast Conservation 279.

72  1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area, Arts 3(2) and 7 (hereinafter Helsinki Convention).

73  Helsinki Commission (HELCOM) Recommendation 15/5, System of coastal and marine Baltic Sea protected areas (1994).

74  For an overview of BSPAs, see HELCOM, HELCOM Protect—Overview of the status of the network of Baltic Sea marine protected areas (HELCOM 2013).

75  HELCOM Baltic Sea Action Plan (15 November 2008), available at <http://helcom.fi/Documents/Baltic sea action plan/BSAP_Final.pdf>. The ecosystem approach had also been previously endorsed by a joint HELCOM/OSPAR Commission statement in 2003 at the first joint meeting of the OSPAR and the HELCOM Commissions. See the Record of the First Joint Ministerial Meeting of the Helsinki and the OSPAR Commissions (25–26 June 2003) Annex 5.

76  For information on this process, see Joint HELCOM-VASAB Maritime Spatial Planning Working Group, available at <http://helcom.fi/helcom-at-work/groups/helcom-vasab-maritime-spatial-planning-working-group/>.

77  Baltic Sea Broad-Scale Maritime Spatial Planning (MSP) Principles, available at <http://helcom.fi/Documents/HELCOM%20at%20work/Groups/MSP/HELCOM-VASAB%20MSP%20Principles.pdf>.

78  HELCOM, Regional Baltic Maritime Spatial Planning Roadmap 2013–2020, available at <http://helcom.fi/Documents/Ministerial2013/Ministerial%20declaration/Adopted_endorsed%20documents/Regional%20Baltic%20MSP%20Roadmap.pdf>.

79  Ibid.

80  See Planning the Bothnian Sea. Outcome of Plan Bothnia—A Transboundary Maritime Spatial Planning pilot in the Bothnian Sea (2013), available at <http://helcom.fi/Documents/Action%20areas/Maritime%20spatial%20planning/Planning%20The%20Bothnian%20Sea%20(digital%20edition%202013).pdf>.

81  For a discussion of the North East Atlantic more generally, see Chapter 29 in this volume.

82  1992 Convention for the Protection of the Marine Environment of the North-east Atlantic, Art 2(1) and (2) and Annex 5 (hereinafter OSPAR Convention).

83  The North-East Atlantic Environment Strategy, Strategy of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic 2010–2020 (hereinafter OSPAR Agreement 2010–2020), available at <http://www.ospar.org/html_documents/ospar/html/10-03e_nea_environment_strategy.pdf#BDC>.

84  Ibid, Preamble [2].

85  E Hey, ‘The International Regime for the Protection of the North Sea: From Functional Approaches to a More Integrated Approach’ (2002) 17 International Journal of Marine and Coastal Law 325.

86  Declaration, North Sea Ministerial Meeting on the Environmental Impact of Shipping and Fisheries (Göteborg, Sweden 4–5 May 2006), available at <http://qsr2010.ospar.org/media/assessments/Basic_documents/Gothenburg_Declaration.pdf>.

87  OSPAR Recommendation 2003/3 on a network of marine protected areas, as amended by OSPAR Recommendation 2010/2.

88  See OSPAR Decisions 2010/1–2010/6 and OSPAR Recommendations 2010/12–2010/17 adopted by the OSPAR Commission at its meeting in Bergen, Norway (20–24 September 2010). The initial network of six MPAs was increased to seven in 2010 with the designation of the Charlie-Gibbs North High Seas MPA in 2010 (see OSPAR Decision 2012/1).

89  OSPAR Commission, 2012 Status Report on the OSPAR Network of Marine Protected Areas (2013) 4, available at <http://www.ospar.org/documents/dbase/publications/p00618/p00618_2012_mpa_status%20report.pdf>.

90  The North-East Atlantic Environment Strategy, n 83, Part I [1.3].

91  Ibid, Part I [4.4.d]. See also ibid, Part II [3.1.c].

92  OSPAR Convention, n 82, Annex 5, Art 4. See KN Scott, ‘Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas’ (2012) 27 International Journal of Marine and Coastal Law 849, 853.

93  For a discussion of the Mediterranean Sea more generally, see Chapter 27 in this volume.

94  1976 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (amended and renamed in 1995), Art 4(3)(a), (c), and (d) (hereinafter Barcelona Convention).

95  In particular, see Decision IG 17/6, Implementation of the ecosystem approach to the management of human activities that may affect the Mediterranean marine and coastal environment (2008), and Decision IG 20/4, Implementing MAP ecosystem approach roadmap: Mediterranean Ecological and Operational Objectives, Indicators and Timetable for implementing the ecosystem approach roadmap (2012).

96  The revised 1995 Mediterranean Action Plan is available at <http://195.97.36.231/dbases/webdocs/BCP/MAPPhaseII_eng.pdf>.

97  1995 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, Arts 4–9 (hereinafter 1995 SPA Protocol). See also Decision IG 20/7 Conservation of sites of particular ecological interest in the Mediterranean (2012).

98  The Pelagos Sanctuary for Marine Mammals. For further information on SPAMI sites see <http://www.rac-spa.org/spami>.

99  Barcelona Convention, Art 4(3)(e).

100  1995 Mediterranean Action Plan, [1.4].

101  2008 ICZM Protocol, Art 2(f).

102  Ibid, Art 3(1).

103  See the Paris Declaration adopted at the 17th Meeting of the Contracting Parties to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean Region and its Protocols (Paris 8–10 February 2012) Annex I, available at <http://www.pap-thecoastcentre.org/razno/PART%20I_Report.pdf>.

104  Decision IG 20/2 (2012), Adoption of the Action Plan for the implementation of the ICZM Protocol for the Mediterranean (2012–2019).

105  The 2010 Amended Convention will replace the 1985 Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region once it enters into force. For a discussion of the Indian Ocean region more generally, see Chapter 31 in this volume.

106  2010 Amended Nairobi Convention, n 105, Arts 4, 11, and 14. The 1985 Protocol Concerning Protected Areas and Wild Fauna and Flora in the East African Region, Arts 8–11, also provides for the designation of MPAs.

107  R Billé and J Rochette, Feasibility Assessment of an ICZM Protocol to the Nairobi Convention (UNEP 2010), available at <http://www.unep.org/NairobiConvention/docs/UNEP(DEPI)_EAF_CP_6_INF_20_Feasibility%20Assessment%20of%20an%20ICZM%20Protocol%20to%20the%20Nairobi%20Convention.pdf>.

108  The Work Programme for the Nairobi Convention 2008–2012 is available at <http://www.unep.org/NairobiConvention/docs/COP5_WORK_PROGRAMME.pdf>.

109  For a discussion on the Caribbean region more generally, see Chapter 30 in this volume.

110  1983 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention), Arts 10 and 12; 1990 Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena SPA Protocol), Arts 4–9 and 13.

111  Cartagena Convention, n 110, Preamble; 1990 Cartagena SPA Protocol, n 110 Preamble.

112  1999 Protocol Concerning Pollution from Land-Based Sources and Activities to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Art III.2.

113  UNGA Res A/57/261 (2002).

114  See further the Micronesia Challenge website, at <www.micronesiachallenge.org>.

116  See further The Nature Conservancy, ‘The Caribbean Challenge Initiative’ available at <http://www.nature.org/ourinitiatives/regions/caribbean/caribbean-challenge.xml>.

117  See further Coral Triangle Initiative, at <http://www.coraltriangleinitiative.org>.

118  UNGA Res A/68/70 (2013) [214].

119  For a more general discussion of oceans governance in ABNJ, see Chapter 33 in this volume.

120  1982 United Nations Convention on the Law of the Sea, Art 194(5) (hereinafter LOSC) does require parties to protect rare or fragile ecosystems and Art 145(a) calls upon states to prevent interference with the ‘ecological balance of the marine effects of fishing on dependent or associated species’ (ibid, Arts 61(4) and 119(1)(b)).

121  For example, the UNGA Res A/68/70 (2013) advocates the application of ecosystem approaches to ocean management, which ‘should be focused on managing activities in order to maintain and, where needed, restore ecosystem health to sustain goods and environmental services…’ [184(b)].

122  Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its Fourth Meeting, UN Doc A/58/95 (2003).

123  Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its Seventh Meeting, UN Doc A/61/156 (2006).

124  1992 Convention on Biological Diversity, Art 8(d) (hereinafter CBD).

125  The earliest instrument to endorse an ecosystem approach to fisheries management in ABNJ is the 1980 Convention for the Conservation of Antarctic Marine Living Resources (CAMLR Convention).

126  1995 Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stock Art 5(d)–(g) (hereinafter FSA).

127  1995 FAO Code of Conduct for Responsible Fisheries, Art 6(2) (hereinafter FAO Code of Conduct).

128  FAO International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (2008), available at <http://www.fao.org/docrep/011/i0816t/i0816t00.HTM> (hereinafter 2008 FAO Deep-Sea Fisheries Guidelines).

129  J Morishita, ‘What is the Ecosystem Approach for Fisheries Management?’ (2008) 32 Marine Policy 19; S Parsons ‘Ecosystem Considerations in Fisheries Management: Theory and Practice’ (2005) 20 International Journal of Marine and Coastal Law 381.

130  H Wang, ‘Ecosystem Management and its Application to Large Marine Ecosystems: Science, Law, and Politics’ (2004) 35 Ocean Development and International Law 41, 43.

131  UNEP, Taking Steps towards Marine and Coastal Ecosystem-Based Management—An Introductory Guide (2011) 10.

132  Discussed in Section 5.4 below.

133  R Rayfuse, ‘Precaution and the Protection of Marine Biodiversity in Areas beyond National Jurisdiction’ (2012) 27 International Journal of Marine and Coastal Law 773, 774.

134  See generally S Marr, The Precautionary Principle and the Law of the Sea. Modern Decision-Making in International Law (Martinus Nijhoff Leiden 2003).

135  Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) [2011] ITLOS Rep 10 (hereinafter Area Advisory Opinion).

136  Ibid, [135]. See also Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, [164] (hereinafter Pulp Mills Case).

137  CBD, n 124, Art 14.

138  See eg UNGA Res A/68/70 (2013) [160].

139  On the application of EIA in ABNJ generally, see AG Oude Elferink, ‘Environmental Impact Assessment in Areas beyond National Jurisdiction’ (2012) 27 International Journal of Marine and Coastal Law 449; R Warner, ‘Oceans beyond Boundaries: Environmental Assessment Frameworks’ (2012) 27 International Journal of Marine and Coastal Law 481.

140  1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, Annex 2.

141  Legal and Technical Commission of the International Seabed Authority, Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area, ISBA/19/LTC/8 (2013).

142  See eg the 2010 Convention for the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Art 22. See also the 2008 FAO Deep-Sea Fisheries Guidelines, n 128.

143  CBD Decision VIII/28 (2006), Impact Assessment: Voluntary guidelines on biodiversity-inclusive impact assessment.

144  The guidelines developed in CBD Decision VIII/28 were annotated with a view to their application in ABNJ at a workshop held in 2009 and formally adopted in 2012. See CBD, Report of the Expert Workshop on Scientific and Technical Aspects Relevant to Environmental Impact Assessment in Marine Areas Beyond National Jurisdiction, UNEP/CBD/EW-EIAM/2 (2 November 2009), and CBD Decision XI/18 (2012), Marine and coastal biodiversity: sustainable fisheries and addressing adverse impacts of human activities, voluntary guidelines for environmental assessment and marine spatial planning, Part B.

145  See the Letter dated 23 September 2013 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, UN Doc A/68/399 (2013) (BBNJ) [34].

146  Pulp Mills Case, n 136, [204]; Area Advisory Opinion, n 135, [145] and [148].

147  See B Cicin-Sain and S Belfiore, ‘Linking Marine Protected Areas to Integrated Coastal and Ocean Management: A Review of Theory and Practice’ (2005) 48 Ocean & Coastal Management 847.

148  A detailed discussion of these issues is beyond the scope of this chapter. See Scott, n 92.

149  A ‘Regular Process’ for reporting on the global marine environment was launched by the UN General Assembly and the first draft of the first global marine assessment is due to be released in 2015. It is envisaged that this process will begin to fill the many knowledge gaps. For further information, see Doalos, ‘A Regular Process for Global Reporting and Assessment of the State of the Marine Environment, including Socio-economic Aspects (Regular Process)’, available at <http://www.un.org/depts/los/global_reporting/global_reporting.htm>.

150  Whale sanctuaries in the Indian and Southern Oceans currently encompasses approximately 20 per cent of ocean space.

151  The first formal MPA was established under CAMLR Convention in respect of the South Orkney Islands Southern Shelf in 2009. See CCAMLR Conservation Measure (CM) 91-03 (2009), Protection of the South Orkney Islands Southern Shelf.

152  Special Areas have been designated under 1973 International Convention for the Prevention of Pollution, as modified by the Protocol of 1978, Annexes I, II, and IV–VI (hereinafter MARPOL) within which stricter discharge regulations are applicable.

153  See the text accompanying nn 82–4.

154  For an overview of existing high seas MPAs, see P Drankier, ‘Marine Protected Areas in Areas beyond National Jurisdiction’ (2012) 27 International Journal of Marine and Coastal Law 291.

155  UNGA Res A/66/288 (2013) [177].

156  CBD Decision IX/20 (2008), Marine and Coastal Biodiversity, [14], [19], and Annexes I and II; CBD Decision XI/17 (2012), Marine and coastal biodiversity: ecologically or biologically significant marine areas. In 2010, the parties to the CBD extended the deadline originally agreed at the World Summit on Sustainable Development to protect 10 per cent of the oceans by 2012 to 2020 as part of the Aichi Biodiversity Targets. See CBD Decision X/2 (2010), The Strategic plan for biodiversity 2011–2020 and the Aichi Biodiversity Targets, Target 11. This was subsequently endorsed in UNGA Res A/66/288 (2012), [177].

157  Letter dated 23 September 2013 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, UN Doc A/68/399 (2013) (BBNJ), [31].

158  Cicin-Sain and Belfiore, n 147, 848–850.

159  G Carneiro, ‘Evaluation of marine spatial planning’ (2013) 37 Marine Policy 214.

160  See Douvere, n 20.

161  C Ehler and F Douvere, Marine Spatial Planning: A Step-by-Step Approach Toward Ecosystem-Based Management, IOC Manual and Guides No 53, ICAM Dossier No 6 (Paris 2009) 19.

162  RW Duck, ‘Marine Spatial Planning: Managing a Dynamic Environment’ (2012) 14 Journal of Environmental Policy and Planning 67, 69–70.

163  S Jay, ‘Marine Space: Manoeuvring Towards a Relational Understanding’ (2012) 14 Journal of Environmental Policy and Planning 81.

164  For example, LOSC, n 120, Art 87(2) provides that high seas freedoms ‘shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area’. Although the International Seabed Authority undoubtedly has functions permitting it to engage in a level of MSP with respect to the seabed beyond national jurisdiction under Part XI of the LOSC, those functions are limited to activities associated with minerals exploitation.

165  UNGA Res A/66/288 (2012) [177].

166  CBD Decision XI/18 (2012), Marine and coastal biodiversity: sustainable fisheries and addressing adverse impacts of human activities, voluntary guidelines for environmental assessment and marine spatial planning. See also, Synthesis Document on the Experience and Use of Marine Spatial Planning, UNEP/CBD/SBSTTA/16/INF/18 (2 April 2012).

167  FAO Code of Conduct, n 127, Art 10.1.1.

168  See E Norse, ‘Ecosystem-based Spatial Planning and Management of marine Fisheries: Why and How?’ (2010) 86 Bulletin of Marine Science 179; A Rassweiler, C Costello, and D A Siegel, ‘Marine Protected Areas and the Value of Spatially Optimized Fishery Management’ (2012) 109 Proceedings of the National Academy of Sciences 11884.

169  See KN Scott, ‘International Environmental Governance: Managing Fragmentation through Institutional Connection’ (2011) 12 Melbourne Journal of International Law 177.

170  See more generally Chapter 3 in this volume.

171  Created in order to support the implementation of Agenda 21, n 8, ch 17, UN-Oceans was originally named the Sub-committee on Oceans and Coastal Areas of the Administrative Committee on Coordination before being renamed in 2003 as the Oceans and Coastal Areas Network (and subsequently renamed again as UN-Oceans). See further UN Oceans website, at <http://www.unoceans.org>.

172  UNGA Res A/68/70 (2013) [279] and Annex.

173  See further Doalos, Ocean Compact, available at <http://www.un.org/depts/los/ocean_compact/oceans_compact.htm>.

174  Ibid.

175  Letter dated 8 June 2012 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, UN Doc A/67/95 (2012) [13].

176  Ekstrom et al, n 4, 532.

177  Y Tanaka, ‘Zonal and Integrated Management Approaches to Oceans Governance: Reflections on a Dual Approach in International Law of the Sea’ (2004) 19 International Journal of Marine and Coastal Law 483, 514.