1. From Law of the Sea to Ocean Governance: UNCED, WSSD, Rio + 20 and Beyond Professor David VanderZwaag Canada Research Chair in Ocean Law and Governance Marine & Environmental Law Institute, Dalhousie University Shanghai Jiao Tong University November 2011

2. Introduction The 1982 Law of the Sea Convention (LOSC), often refered to as the “Constitution of the Oceans”, provides the overall international framework for coastal/ocean management +Clarifies the rights of coastal States and other States to ocean areas and uses, e.g. –Coastal State sovereignty over internal waters and the territorial sea –Coastal State sovereign rights over the EEZ and continental shelf –Rights of all States to innocent passage through territorial seas, transit passage through straits used for international navigation, and freedoms of the high seas (such as navigation and fishing) +Sets out numerous State responsibilities, such as –Obligation to protect and preserve the marine environment (Art. 192) –Obligation to take all measures necessary to ensure that activities under the State’s jurisdiction or control do not cause damage by pollution to other States (Art. 194(2))

3. –Responsibility to take measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life (Art. 194(5)) –Numerous international cooperation responsibilities including to develop conservation measures for transboundary fish stocks in EEZs, (Art. 63(1)), stocks straddling EEZs and the high seas (Art. 63(2)) and fish stocks shared on the high seas (Art. 118) +Established three new institutions –Commission on the Limits of the Continental Shelf –International Tribunal for the Law of the Sea –International Seabed Authority

4. Since LOSC was concluded, the world of coastal/ocean management has become much more complex and complicated with the term “ocean governance” capturing many of the key trends +Shifting from top-down, bureaucratic rule by governments towards more participatory decision-making involving various non-government actors, including the private sector, scientists, NGOs, academics, community groups, and others +Moving from command-control emphasis to cooperative approaches, e.g. voluntary programs, integrated planning, co-management +Increasing reliance on soft law instruments +Expanding roles of non-legal disciplines such as ethics, sociology, ecology, economics and engineering in public policy formation

5. +Growing skepticism towards the primacy of science and expert opinions in reaching decisions +Increasing “legitimacy” burden on decision-makers in light of competing social interests (such as full employment and a clean environment) and social values towards nature (commodity vs. place to be preserved or conserved) +Shifting focus from law of the sea jurisdictional entitlements to principled governance of human uses Maritime Zones (Schofield, 2003: 18)

6. This presentation explores the evolution of ocean governance discussions and developments in the wake of LOSC from five perspectives 1.Quick look at two Earth Summits and their roles in promoting strengthened ocean governance +UN Conference on Environment and Development (1992) UNCED +World Summit on Sustainable Development (2002) WSSD 2.Highlight the key roles of UN processes and resolutions in addressing ocean governance issues and gaps 3.Summarize one of the key challenges in achieving “principled ocean governance”, namely, getting a grip on the slippery nature of key sustainability principles (multiple interpretations) 4.Review of the exponential growth of meetings and decisions relevant to oceans under various multilateral environmental agreements

7. 5.Provide an overview of the preparations for Rio + 20 +Multiple assessments on progress in meeting ocean governance commitments +Many proposals on best ways forward Like to conclude by opening discussion in this room +What do people here think about “the blue yonder”? +What are the most pressing national, regional and global issues needing to be addressed? +If you were asked to suggest a major strengthening to the global ocean governance framework, what would it be?

8. 1.Quick look at the two Earth Summits and their roles in promoting strengthened ocean governance United Nations Conference on Environment and Development (UNCED) Held in Rio De Janeiro, Brazil in 1992, UNCED produced two legally-binding agreements and two soft law documents especially relevant to oceans +Legally-binding agreements –UN Framework Convention on Climate Change *Industrialized countries agreed to aim at stabalizing greenhouse gas emissions at 1990 levels by 2000 *Parties agreed to establish secretariat and to keep reviewing scientific, technological and management dimensions of climate change through Conferences of the Parties

9. – Biodiversity Convention Parties agree to: * Establish a system of protected areas (which should include marine areas) (Art. 8(a)) * Develop legislation / regulations for the protection of threatened species (Art. 8(k)) * Preserve practices of indigenous and local communities embodying traditional lifestyles (Art. 8(j)) * Require national EIA processes to consider impacts of proposed projects on biological diversity (Art. 14(1)(a))

10. + Soft law documents –Agenda 21 * Global action plan for achieving sustainable development (40 chapters) * Chapter 17 “Protection of Oceans, All Kinds of Seas, Including Enclosed and Semi-Enclosed Seas, and Coastal Areas and the Protection, Rational Use and Development of Their Living Resources” * Chapter 17 on oceans / coasts set out seven program areas (calls for action) (i) Integrated coastal / maritime area management, e.g. † Each coastal State should consider establishing or strengthening coordinating mechanisms for integrated coastal / marine management at both the local and national levels involving all interested groups (para. 17.6) † Coastal States urged to develop and maintain databases for managing coastal / marine areas, e.g. marine uses, resource potentials, critical habitat areas (para. 17.8)

11. (ii) Marine environmental protection > UNEP invited to convene, as soon as practicable, an intergovernmental meeting on protection of the marine environment from land-based activities (para. 17.26) > States encouraged to further control sea-based activities, e.g. † Conclusion of a future strategy for the London Dumping Convention (para. 17.30(b)) † Reduction of water pollution from organotin compounds used in anti-fouling

12. (iii) Conservation of high seas marine living resources, e.g. > States urged to convene, as soon as possible, an intergovernmental conference on straddling fish stocks and highly migratory fish stocks (para. 17.50) (iv) Conservation of marine living resources under national jurisdiction, e.g. > Coastal States should develop inventories of marine living resources (para. 17.79(a)) > Coastal States should strengthen their legal / regulatory frameworks including enforcement / surveillance capabilities (para. 17.79(d)) > Coastal States should recognize the rights of indigenous people and local communities to fisheries (para. 17.82(1))

13. (v) Addressing uncertainties in managing the marine environment and climate change, e.g. > Need to bolster scientific research particularly in the areas of climate change and sea level rise and effects of ozone depletion on the marine environment (paras. 17.97 – 17.99) (vi) Strengthening international cooperation / coordination, e.g. > General Assembly urged to provide for regular consideration within the UN of marine and coastal issues (para. 17.18) > A catalyst for establishing the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea (established by G.A. Resolution 54/33 of November 24, 1999)

14. (vii) Sustainable development of Small Island States, e.g. > SIDS urged to develop and implement sustainable development plans (para. 17.129(e)(f)) > SIDS encouraged to design / implement response strategies to climate change impacts (para. 17.129(g)) > Global and regional conferences on sustainable development of SIDS called for (para. 17.131) † Led to Barbados Programme of Action on the Sustainable Development of Small Island Developing States (1994) † A comprehensive review of the Programme occurred in 2005 in Mauritius which resulted in the Mauritius Strategy for the Further Implementation of the Programme of Action for the Sustainable Development of SIDs

15. * Agenda 21’s other chapters may also be relevant for oceans, e.g. Chapter 38 on International Institutional Arrangements > Called upon the General Assembly to establish the Commission on Sustainable Development (CSD) to monitor progress in follow-up of UNCED commitments

16. – Rio Declaration on Environment and Development * Sets out 27 principles, guideposts for reaching sustainable development * Key principles especially relevant to national ocean law and policy reforms include: > Precaution (Principle 15) > Public Participation (Principle 10) > Community-Based Management (Principle 22) > Polluter Pays (Principle 16) > Intergenerational Equity (Principle 3) > Integration (Principle 4) > Environmental Impact Assessment (Principle 17)

17. World Summit on Sustainable Development (WSSD) + Johannesburg Plan of Implementation (adopted 4 September 2002) not a huge “wave-maker” regarding oceans – Government leaders reaffirm commitments to Rio principles and full implementation of Agenda 21 – Only 7 paragraphs (30-36) dedicated to ocean / coastal issues with quite general commitments, e.g. * Establish an effective, transparent and regular inter-agency coordination mechanism on ocean / coastal issues within the UN system * Encourage the application by 2010 of the ecosystem approach * Strengthen cooperation / coordination among regional environmental and fisheries organizations

18. * Maintain or restore fish stocks to levels that can produce the maximum sustainable yield with the goal to be achieved for depleted stocks on an urgent basis and where possible not later than 2015 * Support the sustainable development of aquaculture * Implement the work programme from the Jakarta Mandate on the Conservation and Sustainable Use of Marine and Coastal Biological Diversity through urgent mobilization of financial resources and technological assistance * Establish representative networks of marine protected areas by 2012 * Make every effort to achieve substantial progress in protecting the marine environment from land-based activities by the next GPA Conference in 2006 * Accelerate the development of measures to address invasive alien species in ballast water * Establish by 2004 a regular state of the marine environment reporting process under the UN including socio-economic aspects

19. 2.Highlight the key roles of UN processes and resolutions in addressing ocean governance issues and gaps UN Processes +UN Open-ended Informal Consultative Process on Oceans and Law of the Sea (UNICPOLOS or ICP) –The ICP, first established pursuant to a General Assembly resolution in November 1999, with a three-year mandate, has been renewed through subsequent resolutions for additional three year periods –The ICP might best be described as a “discussion and learning” forum –The UN Secretary-General provides annual reports on Oceans and law of the sea that inform ICP discussions –Sessions have invited leading scientific and policy experts to share their views on topics selected by UN member States –Following expert panel presentations, States, NGOs and other organizations have been invited to ask questions and articulate viewpoints

20. – Reports of the ICP are submitted to the General Assembly and then circulated under the agenda item, “Oceans and law of the sea” – Central topics for ICP discussion have varied considerably over the 12 ICP sessions to date *ICP-1 (2000) – Fisheries and marine environmental protection two main themes *ICP-2 (2001) – Marine science and transfer of marine technology, and cooperation in combating piracy and armed robbery at sea *ICP-3 (2002) – Two organizing themes, protection and preservation of the marine environment and cross-cutting issues of capacity-building, regional cooperation and ocean management *ICP-4 (2003) – Protecting vulnerable marine ecosystems and the safety of navigation *ICP-5 (2004) – Conservation and management of biological diversity of the seabed in areas beyond national jurisdiction *ICP-6 (2005) – Marine debris and fisheries and their contribution to sustainable development

21. *ICP-7 (2006) – Ecosystem approaches and oceans *ICM-8 (2007) – Marine genetic resources *ICP-9 (2008) – Maritime security and safety *ICP-10 (2009) – Review of the ICP’s achievements and shortcomings in its first nine meetings *ICP-11 (2010) – Capacity-building in ocean affairs and law of the sea, including marine science *ICP-12 (2011) – Contributing to the assessment in the context of Rio+20, of progress to date and remaining gaps in the implementation of outcomes of the major summits on sustainable development and addressing new and emerging challenges *ICP-13 (2012) – Will focus on marine renewable energies –ICP has served as a feeder of ideas and recommendations to the UN General Assembly for further endorsement and expansion through resolutions, e.g. *ICP-6 in 2005 encouraged RFMOs to initiate performance reviews and to protect vulnerable marine ecosystems as a matter of urgency *UNGA Res. 61/105 of December 2006 urged RFMO/As to undertake performance reviews with some element of independent evaluation (para. 73) and called on RFMO/As to protect VMEs from bottom fishing activities (para. 83)

22. – At its 7 th session in 2006, the ICP contributed to further fleshing out the core elements of an ecosystem approach with the meeting agreeing on main thrusts of the EA, such as *Emphasizing conservation of ecosystem structures and their functioning in order to maintain ecosystem goods and services *Ensuring stakeholders and communities participate in planning and management *Using best available knowledge (traditional, indigenous and scientific) *Applying the precautionary approach *Assessing the cumulative impacts of multiple human uses *Taking into account ecological, social, cultural, economic, legal and technical perspectives *Seeking to minimize adverse impacts of human activities on marine ecosystems and biodiversity, in particular rare and fragile marine ecosystems *Using integrated decision-making processes *Considering factors originating outside the boundaries of the defined ecosystem management area

23. – While furthering international thinking in regard to the ecosystem approach, the ICP still left the fleshing out process at quite a very general level with a type of “disclaimer” as well. The report concluded that “there is no necessarily agreed definition of an ecosystem approach, which is interpreted differently in different contexts …” (para. 6) 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 (ABNJ WG) +Has held four meetings (2006, 2008, 2010, 2011) +Has served as a discussion forum on possible future directions for strengthening high seas governance with two main issues in controversy –Whether there is a governance gap in relation to bioprospecting –Whether an implementing agreement to LOSC should be forged to address the protection and sustainable use of marine biodiversity beyond national jurisdiction +At June 2011 meeting, the ABNJ WG recommended that the UN General Assembly continue discussions, through the ABNJ WG and international workshops, with the next meeting to take place in 2012

24. Commission on Sustainable Development (CSD) +The CSD, established after UNCED as a discussion forum to facilitate and monitor implementation of Rio commitments, particularly Agenda 21, has not been effective overall and certainly not in relation to oceans +CSD has only reviewed ocean issues twice in 1994 (4 th session) and 1998-1999 (7 th session) +CSD not scheduled to review ocean development and management issues again until 2014 (22 nd session)

25. UN Resolutions +It has now become common to have yearly UN resolutions adopted on two central ocean governance topics –Oceans and the law of the sea –Sustainable fisheries +Resolutions have largely played “agenda setting” roles –Initiating processes, meetings and reports to further discuss and promote strengthenings in coastal/ocean governance, e.g. *The ICP, ABNJ WG and CSD are all creatures of UN resolutions *The 2012 UN Conference on Sustainable Development and its basic objectives and topics have been established pursuant to UN Res. 64/236 (December 2009) >Objectives include †Securing renewed political commitment for sustainable development †Assessing progress to date and the remaining gaps in the implementation of the outcomes of the major summits on sustainable development †Addressing new and emerging challenges

26. >Two main themes to be discussed †A green economy in the context of sustainable development and poverty eradication †The institutional framework for sustainable development *Oceans and law of the sea resolutions have mandated the preparation of annual Secretary-General reports on issues and developments in ocean affairs and law of the sea which must include a section addressing the upcoming topic of the ICP –Sustainable fisheries resolutions have helped set the agenda for strengthening fisheries management and protection of marine biodiversity, e.g. *Continually calling for States and RFMO/As to apply precautionary and ecosystem approaches to fisheries management *Urging the enhancement of shark conservation measures, for example, pursuant to Res. 65/38 December (2010)

27. >States are urged to urgently adopt measures to further implement the International Plan of Action for the Conservation and Management of Sharks (IPOA – Sharks) for both directed and non-directed shark fisheries by †Establishing limits on catch or fishing effort †Requiring their flagged vessels to collect and regularly report data on shark catches (species specific), disregards and landings †Undertaking comprehensive shark stock assessments †Reducing shark by-catch and by-catch mortality †Not increasing fishing effort in directed shark fisheries where scientific information is uncertain or inadequate (para. 13) >States are urged to take immediate and concerted action to improve the implementation of and compliance with existing RFOM/A and national regulatory measures for shark fisheries, incidental catch of sharks, and in particular shark finning prohibitions or restrictions (para. 14)

28. >States are encouraged to take other measures to address shark finning, such as requiring all sharks to be landed with each fin naturally attached (para. 14) >RFMO/As with competency to regulate highly migratory species are urged to strengthen or establish precautionary, science-based conservation and management measures for sharks (para. 15) >FAO is requested to prepare a comprehensive report on the implementation of IPOA – Sharks and on progress in resolution implementation (para. 16) *Calling for enhanced regulation of bottom fishing activities on the high seas, e.g. >Res. 61/105 (December 2006) calls upon †RFMO/As with competence to regulate bottom fisheries to adopt and implement not later than 31 December 2008 measures, such as ~To close bottom fishing in vulnerable marine ecosystems, including seamounts, hydrothermal vents and coldwater corals, where they are known or likely to occur and to ensure such activities do not proceed unless conservation and management measures have been established to prevent significant adverse impacts (para. 83(c))

29. ~To require State members of RFMO/As to require vessels flying their flag to cease bottom fishing in areas where VMEs are encountered and to report the encounter (move on rule) (para. 83(d)) ~To assess whether individual bottom fishing activities would have significant adverse impacts (SAIs) on VMEs and if it is assessed that those activities would have SAIs to ensure preventative management measures or refusal of authorization (para. 83(a)

30. †Flag States are urged to adopt the above measures in para. 83 where there is no RFMO/A with competence to regulate bottom fishing (para. 86) †The Secretary-General, in cooperation with FAO, was requested to prepare a report for the 64 th Session of the General Assembly in 2009 on the actions taken by States and RFMO/As to implement the resolution provisions on bottom fishing (para. 91) >Res. 64/72 (December 2009), reviewing the S-G report on the implementation of Res. 61/105, noted with concern the limited implementation to date and added further recommendations and clarifications relating to bottom fishing management on the high seas, such as, †Calling upon RFMO/As and flag States ~To make publicly available assessments of whether individual bottom fishing activities would have significant adverse impacts on VMEs and any management measures adopted (para. 122(b))

31. ~To conduct further marine scientific research to identify where VMEs are or likely to occur (para. 119(b)) ~To establish and implement protocols regarding encounters with VMEs including definitions of what constitutes evidence of an encounter, in particular threshold levels and indicator species (para. 119(c)) †Deciding to conduct a further implementation review in 2011 with the Secretary-General requested to publish a further implementation progress report for the 66 th session of the General Assembly

32. – Progress in implementing the sustainable fisheries resolutions has been mixed with “good news” and “bad news” *Good news >Noteworthy progress has been made pursuant to UN sustainable fisheries resolutions in protecting VMEs from bottom fishing activities, e.g. †The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) has imposed a limited ban on bottom trawling in the high seas areas of the CCAMLR Convention Area (Conservation Measure 22-05, 2008) †The South East Atlantic Fisheries Organization (SEAFO) has closed 11 sub-areas known or likely to contain VMEs †The Northwest Atlantic Fisheries Organization (NAFO) has closed bottom fishing in 18 areas (6 Seamounts and 11 Coral areas) until at least 2014 which represents some 14% of the total NAFO Regulatory Area

33. Report of the NAFO Performance Review Panel 2011 (page 80).

34. †New RFMO Conventions have been concluded for the South Pacific Ocean (2009) and for the North Pacific Ocean (2011) and, although not yet in force, various interim measures to protect VMEs have been agreed to such as ~Freezing the fishing footprint ~“Move one” rule when VMEs are encountered †Many States have used MPAs and specific area closures in national waters to restrict bottom fishing activities †Palau has banned all bottom trawling in areas under its national jurisdiction and by its nationals and vessels anywhere in the world >Many RFMOs have undertaken performance reviews and have modernized their mandates or are in the process of doing so, e.g., for the Atlantic †NAFO, NEAFC and ICCAT have all completed performance reviews †The North Atlantic Salmon Conservation Organization (NASCO) has agreed to undertake an independent performance review

35. *Bad news – various implementation weaknesses stand out, particularly >Limited nature of VME encounter protocols generally adopted †High level of threshold levels set to define an encounter invoking the move on rule †Limited number of encountered organisms that trigger the move on rule (corals and sponges)

36. †Limited move on distance required, 2-5 nautical miles >Limited VME impact assessment follow throughs, e.g. †Failure to make assessments publicly available †Restricting the scope of impact assessment requirements as exemplified by NAFOs 2010 decision to only require impact assessments ~In new fishing areas outside the historically fished “footprint” ~Within the footprint if new scientific information comes to light on the existence of VMEs or if significant changes occur in fishing conduct or technology

37. 3.Summarize one of the key challenges in achieving “principled ocean governance” Getting a grip on the slippery nature of meanings for key principles (For example, sustainable development, integration, ecosystem approach) +Sustainable development – World Commission on Environment and Development (1987) *Popularized the concept of sustainable development *Famous definition Development that meets the needs of the present without compromising the ability of future generations to meet their own needs (Our Common Future, p. 43)

38. – 4 major reasons the sustainable development principle is frustrating / confusing *“Unknowability of needs of future generations” *Differing terminologies >Concept >Principle >Objective >Goal >Ethic *Multiple dimensions that need to be addressed >Population >Poverty >Defense spending >North – South equity *Does not clearly resolve conflicts in worldviews >Transcendent / utilitarian (SD is a “juggling act” among economic, social and environmental factors) >Immanent / ecocentric (SD means meeting social and economic needs must not significantly alter ecological integrity)

39. +Integration Confusing because of multiple meanings (at least nine): –Environment – economy integration (ensuring proposed development policies and activities incorporate environmental and social considerations) –Integrated pollution control (reducing fragmentation in pollution control where air, water and land emissions may be separately regulated)

40. – Horizontal integration (coordinating the policy & planning efforts of sectoral government agencies, e.g., agriculture, fisheries, forestry, tourism, transportation, communications, energy, defense, environment) – Vertical integration (enhancing cooperation among levels of government, national, provincial/state, local) – Multi-disciplinary integration (promoting the use of natural and social science information and insights in decision-making) –Integrated culturing (supporting ecological engineering where production systems are integrated with ecosystem functions) – Integrated surveillance, compliance and enforcement (coordinating environmental, natural resource and security surveillance / enforcement) – Integrated coastal/ocean area management (managing multiple land and sea uses in the coastal zone and offshore) – International integration (incorporating international responsibilities and obligations into domestic law and policies)

41. +Ecosystem Approach Also has “slippery” aspects –Terminology *Ecosystem approach vs. Ecosystem-based management *Are the terms interchangeable? >Some authors think so >FAO has preferred ecosystem approach for couple of reasons †Consistency with precautionary approach †Concern over giving environmental considerations pre- eminence over socio-economic and cultural interests

42. –Multiple fora developing guidance, e.g. *FAO Technical Guidelines on the Ecosystem Approach to Fisheries (2003) *Convention on Biological Diversity decisions on the ecosystem approach >Decision V/6 at 5 th Conference of the Parties called upon Parties and international organizations to apply the ecosystem approach with 12 supporting principles recommended >Decision VII/11 at 7 th COP in 2004 provided annotations to the 12 principles

43. –Relationship of ecosystem approach to other principles, e.g. precaution, public participation, integration (considerable “blurring” has occurred) –Continuing uncertainty over how ecosystem boundaries should be established for management purposes *National *Transboundary –Spectrum of implementation measures, as exemplified in the fisheries sector *Establishing MPAs *Prohibiting “destructive” fishing practices at least in some sensitive areas, such as seamounts and corals *Encouraging more selective fishing practices such as longlining and development of more environmentally friendly gears *Reducing fleet sizes *Restoring fish habitats *Applying ecological impact assessment to fisheries *Promoting use of eco-labelling

44. –Lack of clarity as to “end points” (overall ecosystem objectives) *Ecological integrity (How much of the oceans should be dedicated to “no take” areas?) *Ecosystem health (What should be the indicators?)

45. +Lack of resolution regarding how ecosystem objectives and human use objectives should be “balanced” +Limited scientific foundations to support the ecosystem approach *Limited scientific data *Limited scientific capacity *Limited scientific understanding of ecosystem complexities

46. 4.Review the exponential growth of meetings and decisions relevant to oceans pursuant to multilateral environmental agreements (MEAs) Over 500 MEAs have been negotiated, many relating to oceans and marine species Between 1992-2007, UNEP has estimated that Conferences of the Parties under major MEAs have +Held 540 meetings +Taken 5,084 decisions

48. A major challenge is to keep up-to-date on the continually evolving ocean governance seascape within MEAs with the CBD providing an example of the numerous decisions and documents to take into account in relation to marine biodiversity protection, e.g. +CBD Strategic Plan for Biodiversity 2011- 2020 –Adopted at the 10 th COP in Nagoya, Japan in October 2010 through decision X/2 –Sets out 20 targets called the “Aichi Biodiversity Targets” serving as aspirations for achievement at the global, regional and national levels *Four of the targets specifically refer to marine areas or oceans stress on: >Target 6 - By 2020 all fish and invertebrate stocks and aquatic plants are managed and harvested sustainably, legally and applying ecosystem based approaches, so that overfishing is avoided, recovery plans and measures are in place for all depleted species, fisheries have no significant adverse impacts on threatened species and vulnerable ecosystems and the impacts of fisheries on stocks, species and ecosystems are within safe ecological limits.

49. >Target 7 - By 2020 areas under agriculture, aquaculture and forestry are managed sustainably, ensuring conservation of biodiversity. >Target 10 - By 2015, the multiple anthropogenic pressures on coral reefs, and other vulnerable ecosystems impacted by climate change or ocean acidification are minimized, so as to maintain their integrity and functioning. >Target 11 - By 2020, at least 17 per cent of terrestrial and inland water areas, and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area- based conservation measures, and are integrated into the wider landscapes and seascapes.

50. *Other targets are more general but still carry implications for sustaining marine biodiversity, for example: >Target 3 urges the elimination or phasing out of incentives, including subsidies, harmful to biodiversity by 2020. >Also by 2020, Target 8 calls for bringing down levels of pollution, including that from excess nutrients, to levels not detrimental to ecosystem function and biodiversity >Target 12 encourages the prevention of extinction of human- threatened species and the improvement of their conservation status.

51. +CBD Programme of Work on Marine and Coastal Biodiversity –Developed pursuant to the 1995 Jakarta Mandate on Marine and Coastal Diversity (decision II/10)) and refined and extended for an additional six years through decision VII/5 in 2004 –Urges Parties to undertake activities under five programme themes, for example: *Theme 1, implementation of integrated marine and coastal area management (IMCAM), Parties are urged to promote the application of ecosystem-based management and to develop/implement strategies to overcome obstacles to IMCAM. *Under Theme 2, marine and coastal living resources, Parties are encouraged to eliminate destructive fishing practices and restore fisheries stocks to sustainable levels by 2015. *Pursuant to Theme 3, marine and coastal protected areas, the establishment by 2012 of integrated networks of marine and coastal protected areas was suggested at both national and regional levels. *For mariculture, the 4 th theme, Parties were urged develop effective site selection methods in the framework of integrated marine and coastal area management and to use native species in mariculture.

52. *For invasive alien species, the 5 th theme, Parties were encouraged to take measures to address invasive alien species in ballast water, including through the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, and to exchange information on effective prevention and control techniques. –Through decision X/29 on marine and coastal biodiversity taken at the 10 th COP in October 2010, Parties reaffirmed the programme of work, but the decision suggested enhancements on many fronts. *The need to highlight the role and potential of marine and coastal habitats, such as salt marshes, mangroves and seagrasses, in mitigating and adapting to climate change is stressed. *The need to address the potential adverse impacts of ocean acidification on marine and coastal biodiversity is emphasized. *Targets of the programme of work are aligned with the Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets. *Parties are invited to increase efforts to apply marine spatial planning tools.

53. +Issuance of CBD Guidelines CBD Parties have forged five key sets of guidelines especially important for sustaining marine biodiversity. – The Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity, adopted in 2004, through Decision VII/12, offer 14 practical principles along with operational guidelines for each principle. *The need for governance frameworks to empower and support rights of local users to biodiversity components is highlighted (principle 2), as is the need to ensure equitable distribution of benefits to indigenous and local communities (principle 12). *The avoidance or minimization of adverse impacts on ecosystem services is also advocated in the context of sustainable use of biodiversity resources (principle 5).

54. – A second set of guidelines, also adopted in 2004 through Decision VII/16F (annex) is the Akwé:Kon Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities (CBD Conference of the Parties 2004). *The Guidelines provide guidance to Parties on the incorporation of cultural, environmental and social considerations of indigenous and local communities into impact assessment procedures. *Taking into account value systems of indigenous and local communities, and possible impacts of proposed developments on traditional systems of tenure and resource uses, is advocated (para. 47) and Parties are encouraged to provide appropriate legislative authority (para. 67).

55. – A third set of guidelines to assist implementation of the ecosystem approach was embraced by CBD Parties in 2004 through Decision VII/11. The guidelines offer guidance on how to implement the 12 principles of the ecosystem approach adopted in Decision V/6 of the Conference of the Parties. *Key principles include: >Decentralizing management to the lowest appropriate level (principle 2) >Maintaining ecosystem services as a priority target of the ecosystem approach (principle 5) >Managing ecosystems within the limits of their functioning (principle 6) >Seeking an appropriate balance between conservation and use of biological diversity (principle 10) >Considering all forms of relevant information, including scientific and indigenous and local knowledge (principle 11). *Implementation guideline 6.2 urges application of the precautionary approach, given the uncertainty associated with defining the limits of ecosystem functioning under most circumstances.

56. – Two other closely associated guidelines seek to strengthen the incorporation of biodiversity considerations into impact assessment procedures. *The Voluntary Guidelines on Biodiversity-inclusive Environmental Impact Assessment, endorsed through Decision VIII/28 (2006), urge Parties to provide clear criteria for taking biodiversity into account in decision-making and to apply the precautionary approach in cases of scientific uncertainty when there is a chance of significant harm to biodiversity. *Draft Guidance on Biodiversity-inclusive Strategic Environmental Assessment, also endorsed through Decision VIII/28, encourages the application of strategic environmental assessment (SEA) procedures to proposed policies, plans and programmes which may affect one or more important ecosystem services and highlights the need to fully involve all stakeholders in the SEA process, because they can represent the multiple societal values surrounding biodiversity.

57. 5.Provide an overview of the preparations for Rio + 20 Getting a clear picture on how the global community has been implementing the various Earth Summit and other ocean-related commitments is difficult as no global evaluation framework has been developed +However, four key reports prepared in preparation for Rio + 20 do shed light on how the world is faring in the quest for sustainable seas and coastal communities –An inter-agency paper, A Blueprint for Ocean and Coastal Sustainability (2011)

58. – Oceans at Rio + 20: How Well Are We Doing in Meeting the Commitments from the 1992 Earth Summit and the 2002 World Summit on Sustainable Development” Summary for Decision-Makers (2011) (prepared by Global Oceans Forum) – Ocean Earth: How Rio + 20 Can and Must Turn the Tide (2011) (Pew Environment Group) – Report of the Secretary-General on Oceans and Law of the Sea (April 2011)

59. +Overall, the picture is quite bleak, e.g. –Some 85% of fish stocks are fully exploited, over exploited, depleted or recovering from depletion –For various shark species, population declines as much as 70-80% have been reported globally –Current fishing capacity has been estimated to be 2.5 times more than needed to land MSY –Benefits lost to fishing nations as a result of overfishing has been calculated to be around USD 50 billion/year –Global loads of the nutrients nitrogen and phosphorus have shown about a three-fold increase since pre-industrial times from various sources, particularly agricultural run-off and sewage –Fluxes of dissolved nitrogen in the oceans are predicted to increase by an additional 50% by 2050 –The number of “dead zones” (hypoxic or anoxic areas) has grown around the globe from 49 in the 1960s to over 400 in 2008 –Over 80% of the world’s 232 marine eco-regions have reported the presence of invasive species

60. - Coastal habitats have suffered substantial losses, e.g., * About 20% of the world’s coral reefs have been lost with another 20% degraded * Mangroves have been reduced to 30-50% of their historical cover * Some 29% of seagrass beds have disappeared since the late 1800s Heron rests in a mangrove forest in South Florida. (Photo courtesy USGS)USGS http://www.ens-newswire.com/ens/feb2008/2008-02-03-01.html

61. - Only a little over 1% of the world’s oceans have been protected to date through MPA establishment - Besides overcapacity and overfishing the Secretary General has identified ongoing challenges in achieving suitable use of marine living resources, including: * Illegal, unregulated and un- reported fishing * Inadequate flag State control * Excessive by-catch and discards * Inadequate data collection and reporting * Lack of scientific information and understanding * Ineffective monitoring, control and surveillance * Limited transfer of technology and capacity-building (Madagascar) http://www.ird.fr/peches-et-pecheurs-du- sud/index.php?page=P2C5R8&langue=fr

62. + Nevertheless, there are some bright spots, such as: - Over 100 countries have established integrated coastal management programs - With GEF support at least 17 LME projects have been funded since 1998 in excess of USD 3 billion resulting in * Several new LME Commissions and * Documented reversal of the large-scale “dead zone” in the Black Sea through pollution abatement and nutrient management reforms www.skep.org.za/images/GEF%20logo%20CROPPE D.gif

63. - A UN Regular Process for Global Reporting on the State of the Marine Environment, called for by the WSSD Plan of Implementation, was finally approved by the UN General Assembly in 2010 regarding scope and operational details with a first state of the environment report expected by 2014, in time for the CSD review of oceans http://www.quasimeme.org/gfx_content/background%20webpage.jpg

64. - Major binding and voluntary fisheries agreements/documents have been forged * Binding > Agreement to Promote Compliance with International Conservation and Management Measures for Fishing Vessels on the High Seas (1993) > UN Fish Stocks Agreement (1995) > Agreement on Port State Measures to Prevent, Deter and Eliminate IUU Fishing (2009) http://www.google.ca/imgres?imgurl=http://0.tqn.com/d/gocalifornia/1/0/9/2/3/IMG_ 2197- a.jpg&imgrefurl=http://gocalifornia.about.com/od/toppicturegallery/ig/Monterey- Harbor-Tour/Fishing-Trawler.-1Hc.htm&usg=__mloD0GkGJBlYFN- iwv3k1u55jrQ=&h=500&w=373&sz=65&hl=en&start=17&zoom=1&tbnid=nZkvoi0wf rbgvM:&tbnh=130&tbnw=97&ei=J3LBTo3RHKjL0QGoqNTCBA&prev=/images%3F q%3Dfishing%2Btrawler%26hl%3Den%26sa%3DX%26rlz%3D1T4ADBR_enCA33 0CA330%26tbm%3Disch&itbs=1

65. * Non-binding > FAO Code of Conduct for Responsible Fisheries (1995) > Four International Plans of Action + Seabirds in Longline Fisheries (1999) + Conservation and Management of Sharks (1999) + Management of Fishing Capacity (1999) + Prevent, Deter and Eliminate IUU Fishing (2001) > Over 20 sets of FAO technical guidelines, e.g. + Precautionary Approach to Capture Fisheries and Species Introductions (1996) + The Ecosystem Approach to Fisheries (2003) + International Guidelines for the Management of Deep-sea Fisheries in the High Seas (2008) + International Guidelines on Bycatch Management and Reduction of Discards (2011) ftp://ftp.fao.org/docrep/fao/005/v9878e/v9878e00.pdf

66. - Conclusion of the global Convention on Ballast Water and Sediments (2004) and the catalyzing of a global multibillion dollar ballast water treatment and management industry - Establishing stricter standards for vessel-source pollution discharges, particularly for garbage and air emissions.

67. Envisioning future directions in coastal/ocean governance The various reports have suggested numerous possible ways forward at the global, regional and national levels + Global - Phase out of deep sea bottom trawling by 2015 - Prohibiting the take of threatened or endangered sharks - Negotiating an implementing agreement to LOSC on the protection and sustainable use of biodiversity beyond national jurisdiction - Developing a global strategy on blue carbon including the creation of an international blue carbon market - Forging a legally-binding agreement on hull fouling The basking shark (Cetorhinus maximus) is classed as "globally vulnerable to extinction" in the IUCN's new red list of oceanic shark species. Photograph: Alan James/NPL/Rex Features http://www.google.ca/imgres?imgurl=http://static.guim.co.uk/sys- images/Guardian/Pix/pictures/2009/6/23/1245777821189/Sharks-endangered-Basking- 010.jpg&imgrefurl=http://www.guardian.co.uk/environment/gallery/2008/feb/19/endangered.sharks&us g=___BpQgbeGNCZY27WQKbbeN3Vlpuk=&h=390&w=544&sz=40&hl=en&start=14&zoom=1&tbnid= HYpDIcEIkOkOSM:&tbnh=95&tbnw=133&ei=hWLBTrfsHYjn0QGWstG9BA&prev=/images%3Fq%3Ds harks%26hl%3Den%26sa%3DX%26rlz%3D1T4ADBR_enCA330CA330%26tbm%3Disch&itbs=1

68. - Establishing a UN oceans ambassador or other high level ocean advocacy mechanism - Ensuring oceans are considered regularly within the CSD - Developing a UN Secretary-General “Oceans Budget” report to track previous and current expenditures relating to capacity-development and technology transfer in coastal/ocean development and management - Forging a global legally-binding instrument on land-based marine pollution - Adopting a comprehensive chemicals convention - Reaching a new global agreement on greenhouse gas emission controls and reductions - Transforming UNEP into a UN Environment Organization

69. + Regional - Transforming RFMO/As into regional ocean management organizations (RFMOs) - Enhancing coordination among regional organizations and arrangements such as RFMO/As, regional sea programs and LME initiatives - Completing RFMO/A performance reviews and convention modernizations http://www.fao.org/fishery/rfb/en

70. + National - Incorporating key sustainability principles, such as precautionary and ecosystem approaches, into national legislation and regulations - Developing stricter regulation of nutrients, e.g., * Setting standards for nutrient removal from waste water * Mandating nutrient management plans in agriculture * Enhancing regulation of manure applications and other fertilizers - Forging national laws and policies to address growing offshore uses such as renewable ocean energy and aquaculture http://eu.oceana.org/sites/default/files/euo/feature_Marine_Ren ewable_Energy_5.jpg

71. Time for Discussion! + What do you think are the most pressing national, regional and global issues needing to be addressed? + If you were asked to suggest a major strengthening to the global ocean governance framework, what would it be? + Are you hopeful for major steps forward at Rio+20?

72. Appendix Ensuring national implementation of sustainability principles with the real world example of Canada (a focus upon precautionary and the ecosystem approaches) Precautionary approach Three quick snapshots on Canadian implementation –How Canada has been approaching in general –How Canada has been approaching in areas of marine pollution control –How Canada has been approaching in living resource management

73. – General approach to precaution * Canada has developed a Framework for the Application of Precaution in Science-based Decision Making about Risk (2003) > Document prepared by interdepartmental committee and the various federal departments / agencies, including the Department of Fisheries and Oceans > Has been heavily criticized by NGOs and academics on numerous grounds, e.g. † Tries to limit application of the precautionary approach to situations where scientific risk assessment has identified threats of serious or irreversible harm † Avoids the most powerful implication of the principle - shifting the burden of proof to those who propose development / change † Suggests only cost-effective measures need to be taken † Fails to mention the need to give priority to “alternatives assessment” (rather than focusing on risk assessment and acceptable risk, the focus of decision-makers should shift to identifying alternatives to hazardous technologies and ecologically harmful activities)

74. * Canada has adopted precautionary approach in Canadian Environmental Assessment Act (through 2003 amendments) > As a purpose of the Act > Projects are to be “considered in a careful and precautionary manner … in order to ensure that such projects do not cause significant adverse environmental effects” (s. 4(1)) * A recent environmental impact assessment review process of a proposed rock quarry in Nova Scotia provides a useful case study on how important the precautionary approach may be in EIA decisionmaking

75. >Proposed quarry location on Nova Scotia’s Fundy Coast

76. >Many potential marine environmental effects †Ships striking endangered North Atlantic Right Whales ~Only about 350 individuals remain ~Extremely vulnerable to increased ship traffic Large bulk carrier similar to the vessel proposed for the Project

77. †Ships bringing invasive marine species from the United States to Canada via ballast water ~Special concern over parasitic lobster disease (decimating local lobster populations) ~Occurs in waters off New Jersey and New York but not in Canada †Blasting/crushing noise ~Possibly disrupting migratory behavior of endangered Inner Bay of Fundy salmon (fewer than 250 wild salmon thought to exist) ~Possibly effecting marine mammals (whales, porpoises) ~Possibly causing crustaceans (such as lobsters and snow crabs) to alter movements

78. http://www.kidport.com/RefLib/WorldGeography/Canada/Images/FishingBoats.JPG

79. >A joint federal-provincial environmental assessment panel was appointed to review the proposal †Both federal and provincial environmental legislation call for a precautionary approach †Joint panel took a strong precautionary stance (proponent bears the burden of showing the project will not have significant adverse environmental effects)

80. †In October 2007 Final Report, the Panel recommended rejection of the project on various grounds including ~Failure by the proponent to demonstrate significant adverse environmental effects would not be caused ~Inconsistency of the project with community “core values” >Based upon report, Nova Scotia’s Minister of the Environment subsequently refused to approve the project (November 20, 2007) The project poses the threat of unacceptable and significant adverse effects to the existing and future environmental, social and cultural conditions †Federal government subsequently rejected the proposed project also

81. – How Canada has been approaching precaution in areas of marine pollution control * Only strong embrace has been in area of ocean dumping (“reverse listing” approach where only listed “safe” wastes allowed to be disposed of at sea pursuant to a permit) * Quite weak in addressing land-based pollution, e.g. > No province mandates pollution prevention plans as a precondition to licensing / approving industrial emissions > Only one province (Nova Scotia) has adopted the precautionary approach in general environmental legislation

82. >While the Canadian Environmental Protection Act, 1999 (CEPA) requires government officials to follow the precautionary principle in implementing the Act, CEPA wanders away from strong precaution † Leaves over 23,000 chemicals on the market and continues a reactive substance by substance toxicity assessment approach † Gives very limited authority for federal government to control land-based pollution other than toxic substances (only objectives, guidelines and codes of practice may be established) † Limits power of MOE to impose pollution prevention plans (for listed toxic substances and international air or water pollutants)

83. >While federal Fisheries Act has prohibitions against deleterious deposits and against harmful alterations of fish habitats, the Act has not favored precaution in practice † Regulations have been passed for six industries authorizing deposits with weak and crude discharge standards † Regulatory and legislative provisions have not been strictly enforced (e.g. various environmental groups documented over 2,400 Alleged Violations of Pulp and Paper Mill Effluent Regulations from 1995-2000 in Central and Eastern Canada with only 8 prosecutions)

84. * Canada also quite weak in addressing pollution from seabed activities (petroleum developments), e.g. > No mention of the PP in the multiple statutes governing offshore petroleum activities > No specific regulatory requirements for chemicals used in offshore drilling and production activities (just 1999 Guidelines Respecting the Selection of Chemicals Intended to Be Used in Conjunction with Offshore Drilling and Production Activities)

85. > Joint federal-provincial petroleum boards have been accused of favoring industry interests over precaution, e.g. †In March 2003, the Canada-Nova Scotia Offshore Petroleum Board gave approval for two oil companies to undertake seismic testing in marine waters off Cape Breton, Nova Scotia with various precautionary measures such as: ~ Seismic ships to stay at least 10 km offshore ~ Air-gun blasts to be phased in to encourage species to swim away † Fishermen and environmental groups outraged in light of limited scientific information on effects of seismic testing on species like snow crabs and lobsters

86. – How Canada has been approaching precaution in living resource management * DFO has yet to “spell out” what the precautionary approach should mean in the ocean context (The Oceans Strategy simply reiterates a general commitment and the need to give priority to maintaining ecosystem health and integrity) * DFO has held various national workshops on the precautionary approach in fisheries but the focus has been on how to establish cautious catch limits not on the broader issues, such as promoting environmentally appropriate fishing techniques/gears and enhancing public participation in fisheries management * Canada’s Fisheries Act dates back to 1868 and has yet to be modernized to reflect modern ocean governance principles including the precautionary approach

87. *DFO has adopted a Fisheries Decision-making Framework for Incorporating the Precautionary Approach (March 2007) >Advocates the establishment of two key fish stock reference points †Limit reference point (stock status level below which serious harm to productivity is likely to occur) †Upper stock reference point (target stock status for ensuring an adequate buffer for avoiding serious harm to productivity) >Suggests the categorization of fish stocks into three categories †Critical zone (below the limit reference point) (red light) †Cautious zone (between the limit reference point and upper stock reference point) (yellow light) †Healthy zone (above the upper stock reference) (green light)

88. >Proposes fisheries removal/exploitation rates should vary according to the category †Critical Zone ~Conservation concerns are paramount ~Removals must be kept to the lowest possible level †Cautious Zone ~Socio-economic and biological factors must be balanced ~Exploitation rate should set to ensure high probability of moving toward the healthy zone †Healthy Zone ~Socio-economic considerations prevail *Precautionary reference points have been established thus far for relatively few fish stocks

89. * DFO has yet to issue regulations clarifying the precautionary approach to genetic modification of aquatic organisms (for example, transgenic fish) > Present federal government policy appears to be in favor of allowing future commercial development > However, restricting transgenic aquatic organisms to land- based facilities where they cannot escape * No Province has included the precautionary approach in aquaculture or fisheries legislation

90. +The ecosystem approach –Canada has made general commitments to manage human uses of the oceans to ensure healthy ecosystems, for example *Canada’s Oceans Act states: “Canada holds that conservation, based on an ecosystem approach, is of fundamental importance to maintaining biological diversity and productivity in the marine environment.” *Canada’s Oceans Act (s. 42(e)) authorizes the Minister of Fisheries and Oceans to: “Carry out investigations for the purpose of understanding oceans and their living resources and ecosystems.” –Canada has established eight MPAs pursuant to the Oceans Act (far from a comprehensive network)

91. –Canada has held various workshops to discuss objectives and indicators for ecosystem-based management *National workshop in 2001 developed three broad ecosystem objectives >To conserve enough components (ecosystems, species, populations, etc.) so as to maintain the natural resilience of the ecosystem >To conserve each component of the ecosystem so that it can play its historic role in the food web >To conserve the physical and chemical properties of the ecosystem *2004 Workshop developed a further 32 guidelines for moving towards an ecosystem approach (The Habitat Status Report on Ecosystem Objectives is available at the Canadian Science Advisory Secretariat website ).

92. –Canada has been hesitant to protect sensitive benthic ecosystems from bottom trawling because of powerful socio-economic interests *A DFO Policy for Minimizing the Impacts of Fishing on Sensitive Benthic Areas (Last Updated January 21, 2008) is obviously concerned over totally closing sensitive sea areas (like cold water corals and sponge beds) to bottom trawling >In frontier areas (deep water ecosystems below 2000 m and Arctic marine ecosystems) DFO willing to consider exploratory, small- scale fisheries to collect data on the presence of benthic habitats and non-target species >In historically trawled areas †A balancing act to protect identified sensitive benthic areas and to recognize the socio-economic importance of the fishery is suggested †A menu of management measures set out, e.g. ~Partial or total time and area closures ~Gear restrictions or modifications to reduce contact with the seaflour ~Effort reduction

93. http://msnbcmedia1.msn.com/j/msnb c/Components/Photos/061003/06100 3_trawler_hmed_1p.h2.jpg http://kfs.infopop.cc/groupee_file s/attachments/4/2/1/4211019822 /4211019822_5.jpg