Forthcoming in Jill Barrett and Richard Barnes (eds.), UNCLOS at 30 and Beyond. British Institute of
International and Comparative Law, London, 2015.
GOVERNANCE OF AREAS BEYOND NATIONAL JURISDICTION:
AN UNFINISHED AGENDA OF THE 1982 CONVENTION ?
Nearly 50 per cent of the Earth’s surface is covered by marine areas beyond national jurisdiction.
These are the marine areas that are beyond the limits of the Exclusive Economic Zones
recognized by the 1982 United Nations Law of the Sea Convention (“the Convention”) and of
the continental shelf, which the Convention recognizes may extend beyond 200 nm to its outer
Since the finalization of the Convention, human activities in the ocean,
particularly in areas beyond national jurisdiction (“ABNJ”) have burgeoned, as have their
These impacts are not only the result of new activities but also of the unprecedented
increase of existing activities such as maritime transport, the laying of submarine cables (for
internet connections), interest in seabed exploration and mining, and, of course, fishing.
In the more than thirty years since the adoption of the Convention it has become clear
that the co-operative regime for ABNJ which the Convention seems to have envisaged, has not
materialised. This chapter looks at the limitations of the current ocean governance regime and
identifies important issues that need to be addressed more specifically in ABNJ, such as basic
principles of ocean governance, the conservation and sustainable use of marine biological
diversity, environmental impact assessment for new activities and the establishment of marine
protected areas (MPAs). It looks at developments within the United Nations (“UN”) system,
such as the establishment 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”) and proposals for a new implementation
agreement to the Convention which were also discussed at the UN Conference on Sustainable
Development in Rio de Janeiro in June 2012. It then looks in detail at the Sargasso Sea project –
which is designed to see what protection measures can be put in place to protect a unique
This chapter is a revised and updated version of D Freestone, ‘Can We Protect High Seas Ecosystems under
Current International Law? Lessons from the Sargasso Sea Project’ in M Ribeiro (ed), Proceedings of the International
Conference 30 Years after Signature of the United Nations Convention on the Law of the Sea: the protection of environment and the
future of the Law of the Sea (Coimbra Editora 2014). The author is grateful to both publishers for allowing him to
publish a version of this chapter in both volumes.
* The author is extremely grateful to Kate Killerlain Morrison, my Deputy Executive Director, for her help in
putting this chapter together. Some parts draw heavily upon the article we wrote together: D Freestone and K
Killerlain Morrison, ‘The Sargasso Sea Alliance: Seeking to Protect the Sargasso Sea’ (2012) 27 IJMCL 647. I am also
grateful to Kristina Gjerde, IUCN Senior High Seas Policy Adviser, for carefully reading the manuscript and for her
excellent comments. Thanks also to Olivier Yambo for assisting with references.
B Halpern et al, ‘A Global Map of Human Impact on Marine Ecosystems’ (2008) 319 (No 5865) Science 948; E
Ramirez-Llodra et al ‘Man and the Last Great Wilderness: Human Impacts on the Deep Sea’ (2011) 6(8) PLoS
2 | P a g e
ecosystem in ABNJ using existing international institutions, without waiting for the UN to take
more comprehensive action.
II. THE REGIME ENVISAGED BY THE CONVENTION FOR AREAS BEYOND
Part VII of the Convention covers the rights and duties of States on the high seas.
Article 87 of the Convention provides for “Freedom of the high seas” making it clear that the
high seas are open to all States, whether coastal or landlocked. It then itemises six specific
freedoms, namely: freedom of navigation; freedom of overflight; freedom to lay submarine
cables and pipelines, subject to Part VI;
freedom to construct artificial islands and other
installations permitted under international law, subject to Part VI; freedom of fishing, subject to
the conditions laid done in section 2;
and freedom of scientific research, subject to Parts VI and
Article 87(1) also makes the point reiterated in detail in other provisions that these
freedoms are not unconditional. They may only be exercised “under the conditions laid down by
this Convention and by other rules of international law.” Article 87(2) reinforces the point that
shall be exercised by all States with due regard for the interests of other States in their
exercise of the freedom of the seas, and also with due regard for the rights under the
Convention with respect to the Area.
Having said that, the only specific additional restrictions that can be made to the exercise
of these rights are by international agreement that would be binding only on the States which are
party to them. Of course, Part XII of the Convention does impose general obligations in relation
to the Protection and Preservation of the Marine Environment, which extend to the high seas
and international seabed area. Article 192 obliges all States to “protect and preserve the marine
and Article 194(5) specifies that measures under Part XII are to include “those
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.”
Article 197 further obliges
[C]o-operate on a global basis and, as appropriate, on a regional basis, directly or through
competent international organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent with this Convention,
for the protection and preservation of the marine environment, taking into account
characteristic regional features.
In Part XI, the Convention also establishes an international regime for the exploration
and exploitation of seabed mineral resources in ‘the Area’ overseen by the International Seabed
It designates the Area and its mineral resources as the Common Heritage of
Mankind, and mandates the ISA to administer the resources for the benefit of mankind. In
On the Continental Shelf.
Part VI places limits on research activities on the continental shelf where it extends under the high seas. Part XIII
sets out general provisions and co-operative requirements concerning the conduct of marine scientific research.
Under Art 133, “resources” means “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath
the seabed including polymetallic nodules”. This is important given debates about the extent to which living
resources comprise part of the regime for the Area, or are subject to the freedom of the high seas.
3 | P a g e
addition to provisions for the sharing of financial and other economic benefits from mining
activities, it also envisages the development of detailed rules and regulations for the prevention
of damage from mineral exploration and extraction activities and for the conservation of the
flora and fauna of the seabed.
However, these rules do not apply to activities such as deep-sea
bottom fishing, marine scientific research, cable-laying or potential new activities such as ocean
fertilization and other forms of marine geo-engineering.
A range of other global and regional treaties do regulate specific activities which take
place in ABNJ, such as fishing, dumping and navigation. But of course these detailed sectoral
treaties are only binding on States Parties. So, the problem of proper (ie integrated and generally
applicable) governance in ABNJ is exacerbated by the patchwork of treaties that exists. A
number of experts have conducted detailed reviews of existing organizations with jurisdiction
over activities in ABNJ which show that there are serious gaps in coverage.
In relation to
sectoral activities, these gaps are both functional as well as geographic. This is not necessarily a
defect in the basic Convention regime itself, but it is a serious defect in its implementation.
In fact, the lacunae in implementation are vividly shown by the Convention’s provisions
relating to the monitoring and reporting of potentially polluting activities. These provisions,
which are quite rigorous, are based entirely on good faith implementation by States Parties; there
is no international process for receiving or reviewing these reports or even for publicizing them.
The Convention provides as follows:
Article 204(2): “… States shall keep under surveillance the effects of any activities which
they permit or in which they engage in order to determine whether these activities are
likely to pollute the marine environment.”
Article 205: “States shall publish reports … or provide such reports at appropriate
intervals to the competent international organizations, which should make them available
to all States.”
Article 206: “When States have reasonable grounds for believing that planned activities
under their jurisdiction or control may cause substantial pollution of or significant and
harmful changes to the marine environment, they shall, as far as practicable, assess the
potential effects of such activities on the marine environment and shall communicate
reports of the results of such assessments...”.
Although there are international treaty requirements for prior environmental impact assessment
for the permitting of human activities in some areas of the ocean, such as the Southern Ocean
under the Madrid Protocol
or for some activities such as ocean dumping, this is very much the
See, eg: R Rayfuse, M Lawrence and K Gjerde, ‘Ocean Fertilisation and Climate Change: The Need to Regulate
Emerging High Seas Uses’ (2008) 23 IJMCL 297; K Scott, ‘Regulating Ocean Fertilization under International Law:
The Risks’ (2013) 2 CCLR 108
K Gjerde et al, Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine
Biodiversity in Areas beyond National Jurisdiction (IUCN 2008)
<http://cmsdata.iucn.org/downloads/iucn_marine_paper_1_2.pdf>. See also: D Freestone, ‘Problems of High
Seas Governance’ and K Gjerde, ‘High Seas Fisheries Governance: Prospects and Challenges in the 21st Century’ in
D Vidas and PJ Schei (eds) The World Ocean in Globalisation: Challenges and Responses (Martinus Nijhoff 2011). For an
excellent wider discussion of the ABNJ legal regime, see: R Warner, Protecting the Oceans beyond National Jurisdiction:
Strengthening the International Law Framework (Martinus Nijhoff 2009).
The Protocol on Environmental Protection to the Antarctic Treaty (signed in Madrid on October 4 1991 and
entered into force in 1998), (1991) 30 ILM 1455. Annex 1 is on Environmental Impact Assessment. For text see
4 | P a g e
exception rather than the rule.
The recent decision of the Parties to the London Convention
which establishes an assessment framework in relation to ocean fertilization, also
represent an important step forward on this front.
Verlaan reports that in 2008 the London
Convention and London Protocol Parties defined and essentially prohibited Ocean Fertilization
(“OF”) except for legitimate scientific research.
She further notes that “‘Legitimate scientific
research’ (LSR) is defined as ‘those [scientific research] proposals [for OF] that have been
assessed and found acceptable under the Assessment Framework.’”
Framework, developed by the LC/LP joint Scientific Groups and adopted by the parties in 2010,
is a “tool . . . to determine if the proposed [OF] activity constitutes [LSR].”
To constitute LSR,
the proposed OF activity must first demonstrate ‘proper scientific attributes’.
In 2013, the
Parties further adopted resolution LP.4(8), thereby amending the Protocol to include marine
geoengineering activities. The amendments, adopted on 18 October 2013 by the Protocol
Parties, add a new Article 6bis which states that:
Contracting Parties shall not allow the placement of matter into the sea from vessels,
aircraft, platforms or other man-made structures at sea for marine geoengineering
activities listed in Annex 4, unless the listing provides that the activity or the sub-category
of an activity may be authorized under a permit.
Despite these recent efforts to fill the lacunae on potentially polluting activities, much
work remains to done in relation to emerging new concerns in ABNJ. Recent research by the
Census of Marine Life and other projects has highlighted the huge impact that human activities
have already had on marine biodiversity and the importance which biodiversity at all trophic
levels plays in maintaining ocean ecosystem health and functions.
This research also made it
clear that despite the strong and unequivocal obligations to protect the marine environment in
the Convention discussed above, insufficient attention is directed at conservation of marine
ecosystems outside areas of national jurisdiction. For example, experience at the national level
has demonstrated beyond doubt the beneficial effects that the establishment of protected areas
has on the conservation of biomass, even though these are often established in the face of
See: R Warner and S Marsden, Transboundary Environmental Governance: Inland, Coastal and Marine Perspectives (Ashgate
Resolution LC-LP.2(2010) on the Assessment Framework for Scientific Research Involving Ocean Fertilization,
adopted on 14 October 2010. Available
Resolution.pdf. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972,
1046 UNTS 120; 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter, 2006 ATS 11.
See: P Verlaan, ‘Marine Scientific Research: its Potential Contribution to Achieving Responsible High Seas
Governance’ in D Freestone (ed) The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas
(Martinus Nijhoff 2013); P Verlaan, ‘Marine Scientific Research: its Potential Contribution to Achieving Responsible
High Seas Governance’ (2012) 27 IJMCL 805.
Verlaan (2013) ibid, 133. Ocean fertilization is defined as “… any activity undertaken by humans with the
principal intention of stimulating primary productivity in the ocean…” Resolution LC-LP.1(2008) on the
Regulation of Ocean Fertilization, para 2. Available
Ibid, citing para 7 of Resolution LC-LP.1(2008).
Section 1.2 of the Assessment Framework. This is annexed to Resolution LC-LP.2(2010) above n 14.
Ibid, section 1.3.1. Res. LC-LP.2(2010). See further Verlaan (2012) (n 15) 807-808.
spx See also passim CMG Vivian, Brief Summary of Marine Geoengineering Techniques (CEFAS February 2013).
R Danovaro et al, ‘Exponential Decline of Deep-Sea Ecosystem Functioning Linked to Benthic Biodiversity Loss’
(2008) 18 Current Biology 1; and references at n 2.
5 | P a g e
strident opposition from user groups, particularly fishermen.
General international law, and
indeed the Convention itself, does not provide a mechanism for the establishment of
conservation or other areas on the high seas that would have objective status and would thus be
binding on all States.
An important result of the sectoral approach in the treaty regimes applicable to ABNJ is
that although the parties to all these treaties must have regard to the sweeping obligation of
Article 192 to protect and preserve the marine environment, the modalities by which this is done
vary widely from regime to regime. Each sectoral regime has its own distinctive protection
mechanisms and assesses differently the factors that need to be taken into account; the result is a
plethora of distinct sectoral regimes designed to protect specific areas of the ocean from
individual sector-specific risks. Examples abound, with a corresponding welter of acronyms:
envisages the establishment of ‘Special Areas’ of the ocean, in which more
rigorous regimes apply for the discharge of various substances from vessels. The International
Maritime Organization (“IMO”) also envisages the designation of Particularly Sensitive Sea
Areas (“PSSAs”) to denote areas of particular vulnerability to shipping activities,
have to date been established in the high seas.
Regional Fisheries Management Organisations
(“RFMOs”) envisage protection measures, including closing areas for fisheries management
reasons. As a result of pressure from the UN General Assembly (“UNGA”), States and RFMOs
were called upon to protect marine biodiversity, including ‘vulnerable marine ecosystems’ from
significant adverse impacts of deep-sea bottom trawling.
In August 2008, the FAO’s
Committee on Fisheries adopted International Guidelines for the Management of Deep-Sea
Fisheries in the High Seas which provide criteria for identifying ‘Vulnerable Marine Eco-systems’
and outline procedures for preventing significant adverse impacts from the impacts of bottom
trawling including closure of areas and prior environmental impact assessments.
UNGA reviews recognize that despite some progress, much work remains to be done to
effectively implement these procedures and RFMOs have yet to adopt similar provisions with
respect to vulnerable marine species in the superjacent water column.
There is wide range of literature on this. For a recent examples see SE Lester et al, ‘Biological effects within no-
take marine reserves: a global synthesis’ (2009) 384 Marine Ecology Progress Series 33–46; PB Fenberg et al, ‘The
science of European marine reserves: Status, efficacy, and future needs’ (2012) 36 (5) Marine Policy 1012–102; K
Grorud-Colvert et al, ‘Marine Protected Area Networks: Assessing Whether the Whole Is Greater than the Sum of
Its Parts’ (2014) 9(8) PLoS ONE 9: e102298; GJ Edgar et al, ‘Global conservation outcomes depend on marine
protected areas with five key features’ (2014) 506 Nature 216–220.
International Convention for the Prevention of Pollution by Ships, 1973/78 (1978) 17 ILM 546.
IMO Assembly Resolution A.982(24) Revised guidelines for the identification and designation of Particularly Sensitive Sea
Areas (PSSAs). Further details at:
http://www.imo.org/OurWork/Environment/PollutionPrevention/PSSAs/Pages/Default.aspx; also see: K Gjerde
and D Freestone (eds) ‘Special Issue: Particularly Sensitive Sea Areas: an Important Environmental Concept at a
Turning Point’ (1994) 9 IJMCL 431.
Although MARPOL Special Areas have been established in ABNJ eg in Antarctica. See also J Roberts et al,
‘Area-based Management on the High Seas: Possible Application of the IMO’s Particularly Sensitive Sea Area
Concept’ (2010) 25 IJMCL 483-522.
UNGA Res 59/25 (17 November 2004) para 66; UNGA Res 61/105 (8 December 2006) paras 80-90.
FAO, International Guidelines for the Management of Deep-sea Fisheries in the High Seas (Rome 2009).
UNGA Res 64/72 (4 December 2009) para 118. Reports on implementation of these obligations have been
prepared, inter alia, by IUCN and the Deep Sea Conservation Coalition, see M Gianni, Review of the Implementation of
the UNGA Agreement to Protect Deep-sea Ecosystems on the High Seas (Deep Sea Coalition 2009). Available at
<www.savethehighseas.org>. More recently see G Wright et al, Advancing marine biodiversity protection through regional
fisheries management: a review of high seas bottom fisheries closures. Working Paper 14/14 (IDDRI Paris 2014). Available
6 | P a g e
Various protocols to the Regional Seas treaties envisage the establishment of Specially
Protected Areas (“SPAs”) and in the Mediterranean, Specially Protected Areas of Mediterranean
The International Sea Bed Authority (“ISA”) has also recently
recognised Areas of Particular Environmental Interest (“APEIs”) in relation to work in the
Clarion-Clipperton Zone in the Pacific.
In addition, over the past few years, the Parties to the
Convention on Biological Diversity (“CBD”) have developed a process to describe Ecologically
or Biologically Significant Areas (“EBSAs”) to inform and advise sectoral managers. This
process is discussed in more detail below.
While all these initiatives are to be welcomed, existing measures are still essentially mono-
sectoral and designed to protect from specific sectoral threats. There is still no mechanism to
designate an area of the high seas as a marine protected area, allowing management planning for
the area and protection from a suite of threats or from cumulative threats, or even to preserve
important marine ecosystems in a precautionary way for future generations in the way that we
take for granted on land (or in coastal waters). Given that the States participating in these
sectoral processes are usually the same, the “silo” or “stovepipe” approach of national
governments, where different ministries often have difficulty liaising with each other, also
permeates the international arena. Thus, meetings of fisheries management bodies attract a
different epistemic community from that attending IMO meetings, or meetings of the ISA
bodies. They each prefer their own brand of protection measures, regulating a single issue such
as fishing, marine discharges or seabed prospecting, and exercising firm, but different, controls
on the way that these restrictions are applied. This is not the sort of situation which Article 197
of the Convention, with its general instruction to co-operate, seems to have envisaged.
Having said that, some progress has been made at a regional level towards the
establishment of MPAs in ABNJ that come within the jurisdictional areas of regional
environment agreements. In 2002, the Johannesburg Plan of Implementation, agreed at the
World Summit on Sustainable Development (WSSD), set out the goal of establishing a network
of representative MPAs by 2012.
Furthermore, as Scott reminds us, ‘States party to the 1992
Convention on Biological Diversity (CBD) endorsed this strategy in 2004 and, furthermore,
The first such Protocol was the 1982 Protocol on Specially Protected Areas to the 1976 Barcelona Convention for
the Protection of the Mediterranean Sea against Pollution (see below n 36). This was revised in 1995 to reflect the
1992 Biodiversity Convention and the more cutting edge approach of the 1990 Kingston Protocol on Specially
Protected Areas and Wildlife (SPAW) to the Convention for the Protection and Development of the Marine
Environment in the Wider Caribbean Region (“Cartagena Convention”). For text see D Freestone, ‘Specially
Protected Areas and Wildlife in the Caribbean’ (1990) 5 International Journal of Estuarine and Coastal Law 362-382,
369. East Africa and the South East Pacific are also covered by similar measures. See Protocol Concerning
Protected Areas and Wild Fauna and Flora in the Eastern African Region 1985, available at
Protocol for the Conservation and Management of Protected Marine and Coastal Areas of the South-East Pacific
When the ISA Council approved the environmental management plan for the Clarion-Clipperton Zone, it decided
that “… for a period of five years from the date of the present decision or until further review by the Legal and
Technical Commission or the Council, no application for approval of a plan of work for exploration or exploitation
should be granted in areas of particular environmental interest referred to in the annex”’ ( Decision of the Council
relating to an environmental management plan for the Clarion-Clipperton Zone, ISBA/18/C/22 26 July 2012.
Available at http://www.isa.org.jm/sites/default/files/files/documents/isba-18c-22_0.pdf
See also Fitzmaurice on regional protection measures for the Baltic Sea, Chapter x, page 000 below.
Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August-4 September
2002. A/CONF.199/20* Plan of Implementation (2002) at para 32(c), at http://daccess-dds-
7 | P a g e
included the goal of protecting ten per cent of the world’s ecological regions by 2012 within their
In 2010, this was further elaborated in the CBD Aichi Target 11:
[b]y 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 integrated into the wider landscape and
Where regional treaty regimes do envisage the establishment of MPAs in high seas areas,
there has been some progress, as in the OSPAR region,
and the Southern
In the Southern Ocean, as Scott notes, the South Orkney Islands southern shelf MPA
covers just under 94,000 square kilometres of high seas within which fishing, scientific research
related to fishing, and discharges and dumping from fishing vessels are regulated”.
area, steps have been taken to develop MPAs,
although the principal concern is control of
fisheries, rather than a broader spatial management of activities. In the overwhelming majority of
ocean areas beyond national jurisdiction, however, there is no such regional framework.
These developments have led to discussions of this issue within the UNGA, where
mechanisms to improve the conservation and management of marine biodiversity in ABNJ have
been studied for more than a decade.
III. GOVERNANCE OF AREAS BEYOND NATIONAL JURISDICTION: DEBATE
WITHIN THE UN GENERAL ASSEMBLY
In 2004, in order to address the full range of issues particularly related to the conservation of
biodiversity in areas beyond national jurisdiction, the UNGA agreed to the recommendation of
the UN Informal Consultative Process on the Oceans and the Law of the Sea (“UNICPOLOS”)
to establish an Ad Hoc Open-ended Informal Working Group to study issues relating to the
CBD COP 7 Decision VII/30 Strategic Plan: future evaluation of progress, Annex II, Goal 1.1; K Scott,
‘Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas’ (2012) 27
IJMCL 849, 850.
For text see http://www.cbd.int/sp/targets/rationale/target-11/
Convention for the Protection of the Marine Environment of the North-East Atlantic (adopted 22 September
1992, entered into force 25 March 1998) (1992) 32 ILM 1069 (“OSPAR Convention”).
Convention for the Protection of the Marine Environment and Coastal Region of the Mediterranean (adopted 16
February 1976, amended 10 June 1995, entered in force 9 July 2004) 1102 UNTS 27 (“Barcelona Convention”);
Protocol concerning Mediterranean Specially Protected Areas and Biodiversity (adopted 10 June 1995, entered into
force 12 Dec 1999) 2102 UNTS 203.
Commission for the Conservation of Antarctic Marine Living Resources (“CCAMLR”), Conservation Measure
91-03 (2009) “Protection of the South Orkney Islands southern shelf” and Conservation Measure 91-04 (2011)
“General framework for the establishment of CCAMLR Marine Protected Areas”. Both texts are available on the
CCAMLR website at: http://www.ccamlr.org/en/conservation-and-management/conservation-measures
Scott (n 33) 852 (footnotes omitted).
Report of the 2007 Workshop on Bioregionalisation of the Southern Ocean (Brussels, Belgium, 13 to 17 August
2007), available at http://www.ccamlr.org/en/system/files/e-sc-xxvi-a9.pdf; Report of the Workshop on Marine
Protected Areas (Brest, France, 29 August to September 2011) para 2.2, available at
8 | P a g e
conservation and sustainable use of marine biological diversity beyond areas of national
Several important proposals have been discussed at these meetings including a European
Union proposal for a new implementing agreement to develop a more specific framework to
address conservation and sustainable use of marine biodiversity beyond national jurisdiction
within the Convention framework.
Issues highlighted in the discussions have included the
absence of a global instrument regulating the establishment and monitoring of MPAs in ABNJ
(even though protected areas have proven to be extremely effective in maintaining biodiversity in
coastal contexts), the absence of comprehensive environmental impact assessments (“EIAs”) for
new activities in ABNJ, as well as the lack of co-ordination between those international
organizations that are charged with regulating specific sectoral activities.
Other States have indicated that improved implementation should be the first priority,
but not all have provided their views on what might be done to enhance implementation with
respect to biodiversity conservation in general. Unfortunately, the lively debates on improved
governance have been overshadowed by controversy over the future regime for exploitation of
marine genetic resources beyond national jurisdiction.
The G77 and China have argued that the
common heritage of mankind concept that the Convention applies to deep seabed minerals,
should also apply to the living resources of the deep ocean floor, many of which may have
important industrial and pharmaceutical potential. They argue that, rather than being subject to
the open access regime of the high seas as advocated by some States, if the drafters of the
Convention had been aware of these resources – rather than simply being aware of the famous
‘manganese nodules’ – they would doubtless have specifically included these living resources
within the deep sea bed regime.
These polarised positions produced stalemate in the discussions at the BBNJ Working
Group. However, at the May 2011 Meeting there was something of a breakthrough. It was
agreed that the issues of protection of biodiversity through conservation and management tools
such as EIAs and MPAs should be linked with issues relating to access and benefit sharing of
This Working Group held its first meeting in 2006, with further meetings held in 2008, 2010, 2011, 2012, 2013
and 2014. A final meeting was held in January 2015. For details of the meetings see the UN website at:
See reports of meetings at
It has also been suggested that the international community should reaffirm some of the basic principles that have
been agreed in a wide range of existing instruments, including the Convention, in relation to national activities in
ABNJ. At the IUCN 4th World Conservation Congress, in Barcelona on 7 October 2008, IUCN President Valli
Moosa of South Africa chaired a plenary session presenting the IUCN ‘Ten Principles of High Seas Governance.’
For a more detailed exposition of these principles and their legal basis see D Freestone, ‘Principles Applicable to
Modern Oceans Governance’ (2008) 23 IJMCL 385; and D Freestone, ‘Modern Principles of High Seas
Governance: The Legal Underpinnings’ (2009) 39 International Environmental Policy and Law 44.
For an excellent assessment of the issues and potential of bio-prospecting, see: D Leary et al, ‘Marine Genetic
Resources: A Review of the Scientific and Commercial Interest’ (2009) 33 Marine Policy 183.
See Art 138 UNCLOS: “The Area and its resources are the common heritage of mankind”. Art 133 UNCLOS
further provides that resources means “all solid liquid or gaseous mineral resources in situ in the Area at or beneath
the seabed, including polymetallic nodules.”
For records of these discussions see:
For a general flavor of various concerns, see particularly the Co-Chairpersons’ summary of discussion, appended to
Letter dated 16 March 2010 from the Co-Chairpersons of the Ad Hoc Open-ended Informal Working Group to the
President of the General Assembly, UN Doc A/65/68 (17 March 2010). Available at: http://daccess-dds-
9 | P a g e
marine genetic resources.
This was discussed further at the 2012 BBNJ Working Group
and at the UN Conference on Sustainable Development (Rio + 20) in June 2012. The
Outcome Document of the Rio Conference, entitled ‘The Future We Want’
We recognize the importance of the conservation and sustainable use of marine
biodiversity beyond areas of national jurisdiction. We note the ongoing work under the
General Assembly of an 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. Building on the work of the ad hoc working group and
before the end of the sixty-ninth session of the General Assembly we commit to address,
on an urgent basis, the issue of the conservation and sustainable use of marine biological
diversity of areas beyond national jurisdiction, including by taking a decision on the
development of an international instrument under the United Nations Convention on
the Law of the Sea.
Acting on this undertaking, the UNGA in Resolution 68/70 requested the Secretary-General to
convene three more meetings of the BBNJ Working Group.
These took place between 1-5
April and 16-19 June 2014 and 20-23 January 2015. At that last meeting the Working Group
decided, after protracted debate, to recommend to the UNGA that it: “Decide to develop an
international legally binding instrument under the Convention on the conservation and
sustainable use of marine biological diversity of areas beyond national jurisdiction…”.
recommendations of the Working Group also envisage the establishment of a preparatory
committee, to begin work in 2016 and to report to the UNGA in 2017 with recommendations
on a text. The proposed negotiations will address the topics identified in the package agreed by
the BBNJ Working Group in 2011, namely the conservation and sustainable use of marine
biodiversity in areas beyond national jurisdiction, in particular, together and as a whole, marine
genetic resources, including questions on the sharing of benefits, measures such as area-based
management tools, including marine protected areas, environmental impact assessments and
capacity building and the transfer of marine technology.
As indicated above, the Working Group has been discussing this possible new multilateral
instrument for more than a decade. In 2010, the Sargasso Sea project evolved out of some
frustration at the slow rate of progress and a desire to see what can or cannot be done to protect
an iconic high seas ecosystem using the existing international legal mechanisms. The Sargasso
Sea project therefore is intended to be an important case study of both the strengths and
limitations of the existing system of high seas governance.
Recommendations 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 and Co-Chairs’
summary of discussions, UN Doc A/66/119 (30 June 2011). Available on the UN website at: http://daccess-dds-
Held in New York, 7-11 May 2012; see: Agenda UN Doc A/AC.276/5 (7 May 2012). http://daccess-dds-
Para 162 of the Annex to UNGA Res 66/288 (27 July 2012), UN Doc A/RES/66/288 (11 September 2012).
Para 200 of UNGA Res 68/70 Oceans and law of the sea (9 December 2013) UN Doc A/RES/68/70 (27
Recommendations 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. See UN Doc
A/69/780* 1(3 February 2015)
Ibid, para 6.
10 | P a g e
IV. THE SARGASSO SEA PROJECT
The Sargasso Sea is a two million square nautical mile ecosystem in the North Atlantic. It is
named for the two species of holopelagic algae which reproduce solely by fragmentation without
contact with land (Sargassum natans and Sargassum fluitans) and accumulate in the North Atlantic
Subtropical Gyre where they form into large mats or windrows. The Sargasso Sea is thus the
world’s only sea without coasts; only the tiny islands of Bermuda have direct coastal frontage.
The Sargasso Sea is bounded on all sides by the clockwise flow of major ocean currents: the Gulf
Stream and North Atlantic Drift form the western and northern boundaries, the Canary Current
forms a more diffuse eastern boundary, and the North Equatorial Current and Antilles Current
form the southern boundary. Just as the currents vary, so too do the boundaries of the Sargasso
The Sargasso Sea was first written about by Christopher Columbus. In September 1492
on his first voyage he recorded “much weed …in some place so thick that it actually held back
Nowadays mats as big as those Columbus saw are rare, possibly as a result of
increased maritime traffic through the area once the change from sail to motorised propulsion of
vessels overcame mariners’ fear of their vessels becoming becalmed in the gyre. Despite the
increasingly rare occurrence of such large algal mats, the Sargasso Sea is still a unique ecosystem.
The Sargassum is home to a range of endemic species and the Sargasso Sea is a major feeding and
migration route for a number of vulnerable, threatened and endangered species, including sea
turtles, and humpback and sperm whales. The Sea is also vital for commercially important
species of tuna and billfish. It is the only place in the world where the catadromous anguillid eels
spawn - the American eel (Anguilla rostrata) and the critically endangered European eel (Anguilla
Bermuda, at the centre of the Sargasso Sea, is an overseas territory of the United Kingdom. It
claims a 200 nm EEZ of some 180,000 square nm.
Beyond the Bermudian EEZ, however, the
remainder of the Sargasso Sea is largely beyond national jurisdiction.
There is no regional
marine environmental treaty framework (like OSPAR), or regional fisheries agreement (like the
North East Atlantic Fisheries Commission) in place for this part of the Atlantic. There are
Thursday, 20 September 1492 he recorded in his log that: “Today I changed course for the first time since
departing Gomera because the wind was variable and sometimes calm. I first sailed west by north and then WNW,
making 21 or 24 miles… The sailors caught a little fish, and we saw much weed of the kind I have already
mentioned, even more than before, stretching to the north as far as you can see. In a way this weed comforted the
men, since they have concluded that it must come from some nearby land. But at the same time, it caused some of
them great apprehension because in some places it was so thick that it actually held back the ships.” The following
day, Friday, 21 September 1492 he reported “At sunrise we saw so much weed that the sea seemed to be a solid mat,
coming from the west.” My thanks to Dr William Curry and Professor Brian Lapointe for this reference. C
Columbus (trans CR Markham) Journal of Christopher Columbus (during his first voyage 1492-93): and documents relating to the
voyages of John Cabot and Gaspar Corte Real (Ashgate 2010) 26-7.
The European eel is protected by EC Regulations. Council Regulation (EC) No. 1100/2007 of 18 September
2007 establishes measures for the recovery of the stock of European eel. OJ 2007 L248/17.
In June 1996, the Governor of Bermuda published a Proclamation declaring a 200 nm EEZ around Bermuda,
measured from the territorial sea coastal baselines (set out in the Bermuda (Territorial Sea) Order in Council of
1988), to come into force at the same time as the 1996 Bermuda Fisheries Amendment Act (1996/10). Bermuda
declared a 200 nm fishing zone in May 1977 (Proclamation No 202) and a 200 nm EEZ in June 1996 (Fisheries
Amendment Act 1996:10)
Depending on what is defined to be the geographical extent of the Sargasso Sea, it can be taken to extend into the
EEZs of the United States to the East and the Northern Antillean islands to the south. The Alliance commissioned
a new map based on criteria such as ocean current and eddy occurrence, remote sensing of Sargassum weed, and
historical mapping, which excludes national EEZs. It calls this area the Sargasso Sea Study Area. The map can be
viewed at http://www.sargassoalliance.org/where-is-the-sargasso-sea.
11 | P a g e
however a number of wider sectoral treaty regimes governing a wide range of activities in the
Sargasso Sea, which are discussed in detail below. In March 2014, Bermuda hosted an
international meeting of government representatives to sign the Hamilton Declaration on
Collaboration for the Conservation of the Sargasso Sea.
The Hamilton Declaration – also
discussed further below - established a regular Meeting of Signatories and envisaged the
establishment of a Sargasso Sea Commission to “exercise a stewardship role for the Sargasso Sea
and keep its health, productivity and resilience under continual review”.
This is designed to be a
new paradigm for high seas conservation, based on voluntary intergovernmental collaboration.
A. The Sargasso Sea Alliance
The Sargasso Sea Commission essentially replaced the Sargasso Sea Alliance (“the Alliance”) that
was formed in 2010 under the leadership of the Government of Bermuda to bring together
governments and non-government actors with a commitment to environmental protection in the
Sargasso Sea. Other members of the Alliance were the International Union for Conservation of
Nature (IUCN), Woods Hole Oceanographic Institution, the WWF International, the Marine
Conservation Institute, the Mission Blue/Sylvia Earl Foundation, together with the Bermuda
Underwater Exploration Institute, the Bermuda-based Atlantic Conservation Partnership and the
famous Bermuda Institute for Ocean Sciences. The small secretariat, headed by an Executive
Director, was established in 2010 in the IUCN office in Washington DC. The Bermuda Ministry
of Environment has the Government lead on the project.
The Alliance had three key objectives: to build a partnership to secure international
recognition of the ecological significance of the Sargasso Sea and the threats that it faces; to use
existing regional, sectoral and international organizations to secure a range of protective
measures for all or parts of the Sargasso Sea to address key threats; and to use the process as an
example of what can and cannot be delivered through existing institutions in ABNJ.
The general strategy of the Alliance was therefore to identify the most important threats
to the Sargasso Sea ecosystem and to address these by seeking appropriate protection measures
within the relevant existing international or regional sectoral organization. Possible threats from
shipping or vessel source pollution would be addressed through the IMO; threats from fishing
through the only two relevant fishing organisations – the International Commission for the
Conservation of Atlantic Tunas (“ICCAT”) and (for the small area of the Sargasso Sea above
35°N) the North-west Atlantic Fisheries Organisation (“NAFO”); Seabed mining issues through
the ISA. No one appears to have attempted to do this before: to use the range of existing bodies
to attempt to put complementary sectoral measures in place for an important area beyond
national jurisdiction. Hence, the project has attracted a lot of international attention.
The leadership of the Government of Bermuda is crucial to this project because the
project involves engaging primarily with intergovernmental bodies. Bermuda is an overseas
Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea, adopted 11 March 2014,
reproduced in D Freestone and KK Morrison, ‘The Signing of the Hamilton Declaration on Collaboration for the
Conservation of the Sargasso Sea: A new paradigm for high seas conservation?’ (2014) 28 IJMCL 345 at 354.
Annex II, para (a), Hamilton Declaration, ibid at 361.
Freestone and Morrison, (n 57) 345-6.
In 2010 this was the Ministry of Environment and Strategic Planning. In 2014, after a reshuffle, it was combined
with Health and Seniors – currently it is the Ministry of Health, Seniors and the Environment.
See generally, D Freestone and KK Morrison, ‘The Sargasso Sea Alliance: Seeking to Protect the Sar gasso Sea’
(2012) 27 IJMCL 647; D Freestone, ‘The Sargasso Sea Alliance: Working to Protect the “Golden Floating Rain
Forest of the Ocean.”’ (2014) 44 Environmental Policy and Law 151.
12 | P a g e
territory of the United Kingdom. It is internally self-governing, but its head of state is Queen
Elizabeth II, whose representative is the Governor. Under a general letter of entrustment signed
by the UK Foreign Secretary, Bermuda has limited rights to negotiate and conclude bilateral and
multilateral agreements in certain areas of external affairs, in relation to specific subject areas.
International treaties to which the UK is party may, depending on their terms, be extended by
the UK to Bermuda at its request.
This can result in some interesting situations, for example, in
relation to ICCAT. The UK is no longer a party to ICCAT in respect of its metropolitan
territory; the EU has exclusive fishery competence for its Member States and has been a member
of ICCAT since 1997.
The UK retains membership only in relation to its overseas territories,
including Bermuda, which may be allocated separate allowable catch quotas under ICCAT. The
UK is a party to the Convention on Biological Diversity (CBD), but its ratification has not been
extended to Bermuda. Bermuda is not a separate member of the IMO. Since 2003, Bermuda has
been an Associate Member of CARICOM – the Caribbean Economic Community.
Support from the UK was therefore crucial to Bermuda being able to make
representations to international organisations with competence to regulate sectoral activities. The
UK Foreign and Commonwealth Office requested a high quality peer-reviewed scientific study
justifying the importance of the Sargasso Sea before lending its support. This report was
published in late 2011, after review by the Bermudian Cabinet and the UK government.
2012, in response to a Parliamentary Question from Mr Zac Goldsmith MP, the UK Minister for
Overseas Territories, Mr Henry Bellingham stated that the Government of Bermuda supported
the proposal to provide appropriate protection for the Sargasso Sea and that the British
Government, the Sargasso Sea Alliance and the Government of Bermuda are working together
to this end through the appropriate forums.
So what are those “appropriate forums”? The
following section looks at the progress that has been made to date using existing international
B. Relevant International Organizations
1. United Nations
The Alliance has hosted or co-hosted a number of side events at UN Law of the Sea meetings,
including the BBNJ Working Group and UNICPOLOS, discussed above. In December 2012,
the work of the Alliance was recognised in the annual UNGA Resolution on the law of the sea,
which noted “the efforts of the Sargasso Sea Alliance, led by the Government of Bermuda, to
Letter from Secretary of State to Governor of Bermuda, 30 September 2009. See I Hendry and S Dickson, British
Overseas Territories Law (Hart 2011) 237-239. See also the text of the letter at 243-245.
Hendry and Dickson, ibid, 253-257.
Since 14 November 1997. See http://www.iccat.int/en/contracting.htm
Since 2 July 2003.
Published as D Laffoley et al, The Protection and Management of the Sargasso Sea: The Golden Floating Rainforest of the
Atlantic Ocean. Summary Science and Supporting Evidence Case (Sargasso Sea Alliance 2011). Available at
Bermuda Royal Gazette, ‘UK supporting efforts to create marine reserve.’ 13 July 2013,
http://www.royalgazette.com/article/20120713/NEWS07/707139917 See also House of Commons
Environmental Audit Committee's enquiry into MPAs, especially its focus on the UK OTs. See EAC's 1st report:
http://www.publications.parliament.uk/pa/cm201415/cmselect/cmenvaud/221/22102.htm; and the
Government's response Sept
2014:http://www.publications.parliament.uk/pa/cm201415/cmselect/cmenvaud/651/65102.htm; and the EAC
report on Sustainability in the UKOTs, Jan 2014, which has a section on MPAs:
13 | P a g e
raise awareness of the ecological significance of the Sargasso Sea.”
This language was the result
of a joint proposal from South Africa, the UK and the USA. In 2013 the same language was
included in the annual UNGA Resolution, with the support of the UK, US and Bahamas.
2014 South Africa and Bahamas, with the support of the UK, US and Monaco, proposed more
extensive language, but encountered opposition; however the same wording as in previous years
was included in the 2014 Resolution.
2. Convention on Biological Diversity
At the tenth session of the Conference of Parties (COP 10) to the CBD in Nagoya, Japan, the
parties decided to initiate a science-driven process to identify EBSAs.
To that end a series of
workshops have been organised by the CBD Secretariat in association with other organisations
to identify such areas.
At the Wider Caribbean and Western Mid-Atlantic Regional Workshop
on EBSAs held in Recife, Brazil in February/March of 2012, the Government of Bermuda, on
behalf of the Alliance, put forward a proposal for the ‘description’ of the Sargasso Sea as an
EBSA. The case for the Sargasso Sea as an EBSA was discussed and adopted by the scientists at
the workshop, then forwarded as part of the Workshop Report to the CBD’s Subsidiary Body on
Scientific, Technical and Technological Advice (SBSTTA) meeting in April 2012, and, ultimately,
the Eleventh Session of the Conference of Parties (COP 11) in Hyderabad in October 2012,
where it was officially described as an EBSA.
The COP decision makes it clear that application of the scientific criteria for ecologically
or biologically significant marine areas is a scientific and technical exercise. It emphasizes that the
selection of appropriate conservation and management measures is a matter for States and
competent intergovernmental organizations, in accordance with international law.
But it does
request the Executive Secretary to include the summary reports on the description of areas that
meet the criteria for ecologically or biologically significant marine areas, in the Repository
maintained by the CBD Secretariat,
and to submit them to the UNGA and particularly its
BBNJ Working Group, as well as to submit them to Parties, other Governments and relevant
It is clear from this that a ‘description’ of an area as an EBSA has in itself no legal
significance, but it is intended that the CBD process will be taken into account by other
UNGA Res 67/78 (11 December 2012), UN Doc A/67/78*, para 199.
UNGA Res 68/70 (9 December 2013), UN Doc A/68/70, para 215
UNGA Res 69/245 (1 December 2014) UN Doc A/69/245, para 231.
“[The] primary objective [is] to facilitate the description of ecologically or biologically significant marine areas
through application of scientific criteria in annex I of decision IX/20 as well as other relevant compatible and
complementary nationally and intergovernmentally agreed scientific criteria, as well as the scientific guidance on the
identification of marine areas beyond national jurisdiction, which meet the scientific criteria in annex I to decision
IX/20”.” CBD Decision X/29, para 36. Available at: http://www.cbd.int/decision/cop/?id=12295
Workshops have been held in virtually all maritime regions. For a full list see http://www.cbd.int/meetings/
UNEP/CBD/COP/DEC/XI/17 (5 December 2012) 23, item 13;
As stated in para 26 of Decision X/29 (n 71).
Ibid, para 36. See the EBSA Repository at http://www.cbd.int/ebsa/
This is reiterated in Decision X/17 Marine and coastal biodiversity: ecologically or biologically significant marine
areas. Doc UNEP/CBD/COP/DEC/XI/17 of 5 December 2012, para 6. See
http://www.cbd.int/doc/decisions/cop-11/cop-11-dec-17-en.pdf. It further requested the Executive Secretary to
submit them to the Ad Hoc Working Group of the Whole on the Regular Process for Global Reporting and
Assessment of the State of the Marine Environment, including Socio-economic Aspects, as well as to provide them
as a source of information to United Nations specialized agencies.
14 | P a g e
international processes charged with managing and conserving ocean resources. For example,
while the COP to the CBD does not have competence to designate MPAs, information shared
through the EBSA identification process may help strengthen the scientific basis for protective
measures through other regional or sectoral entities. The Alliance has therefore taken the
“description” of the Sargasso Sea as an EBSA as a significant success in its aim of achieving
international recognition of the ecological significance of the Sargasso Sea. It has used this EBSA
description in making approaches to other international organizations – as the CBD process
3. North West Atlantic Fisheries Organisation
The first opportunity to utilise the Sargasso Sea EBSA classification arose in the context of the
34th Annual Meeting of the Fisheries Commission of the North West Atlantic Fisheries
Organisation (“NAFO”), meeting in St Petersburg, Russian Federation, 17-21 September 2012.
The northern edges of the Sargasso Sea classified as an EBSA and of the Bermudian EEZ
extend beyond the 35°N latitude demarking the geographical scope of the NAFO Convention.
In that small area two seamount areas are already temporarily closed to bottom trawling.
On the basis of an Alliance proposal through the UK, the EU brought forward a
proposal to the September NAFO Commission for a resolution on the Sargasso Sea. It resolved
to take into account the available information about the Sargasso Sea, including its designation as
an EBSA, and consider management measures to protect that ecosystem. However, some
Contracting Parties indicated they regarded it as premature considering that the COP to the
CBD was not due to consider the proposal describing the Sargasso Sea as an EBSA until its
meeting in October 2012. The proposed resolution was therefore not adopted at that meeting.
Nevertheless, the issue was referred to NAFO’s Scientific Council. The Fisheries Commission
requested the Scientific Council
to comment and advise on whether the Sargasso Sea provides forage area or habitat for
living marine resources that could be impacted by different types of fishing; and on
whether there is a need for any management measure including a closure to protect this
The Science Council met in June 2013 in Dartmouth, Nova Scotia, Canada, but the issue was
deferred to the Fisheries Commission meeting in July 2013, at which point the proposals were
sent for consideration by the joint Fishery Commission/Science Council Working Group on
D Freestone and KK Morrison, “Sargasso Sea Alliance: Leveraging an EBSA definition for High Seas Protection”
Global Ocean Biodiversity Initiative Newsletter (October 2013) at p 5.
The NAFO Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries applies to most
fishery resources of the Northwest Atlantic except salmon, tunas/marlins, whales, and sedentary species (e.g.
shellfish). In 2009, NAFO has 12 Members from North America, Europe, Asia and the Caribbean. Among them are
four coastal members bordering the Convention Area: USA, Canada, France (in respect of St. Pierre et Miquelon),
and Denmark (in respect of Faroe Islands and Greenland).
Northwest Atlantic Fisheries Organization (NAFO), NAFO/FC DOC. 12/24, Fisheries Commission’s Request
for Scientific Advice on Management in 2014 and Beyond of Certain Stocks in Subareas 2, 3 and 4 and Other
Matters (September 2012), para 15. Reproduced in NAFO Report of the Fisheries Commission 2012 NAFO/FC
Doc 12/31, Annex 6, p 38. Available at:
15 | P a g e
Ecosystem Approach Framework to Fisheries Management.
A number of further discussions
have been held within the Commission and the issue is still under consideration.
4. International Commission for the Conservation of Atlantic Tunas
The International Commission for the Conservation of Atlantic Tunas (ICCAT) is responsible
for the conservation of tuna and tuna-like species in the Atlantic Ocean and its adjacent seas.
Sargassum had already been the subject of a 2005 ICCAT Resolution 05-11 on Pelagic Sargassum
initiated by the US.
The origin of this 2005 resolution appears to be a decision of the US South
Atlantic Fishery Management Council, the federal body responsible for protecting ocean fish and
their habitat from North Carolina to part of Florida.
The US decision declared Sargassum as
‘essential fish habitat’ under the US Magnuson-Stevens Fishery Conservation and Management
Act, that charges the Council with minimizing the ‘adverse effects on such habitat caused by
ICCAT Resolution (05-11) on Pelagic Sargassum requested Contracting Parties and others
to provide to the Standing Committee on Research and Statistics (SCRS – the ICCAT Science
body) information and data on activities that impact pelagic Sargassum in the convention area on
the high seas, directly or indirectly, with particular emphasis on the Sargasso Sea. As a result, the
SCRS was asked to examine available and accessible information and data on the status of
pelagic Sargassum and its ecological importance to tuna and tuna-like species. The following year,
in 2006, the SCRS Sub-Committee on Ecosystems noted that there was no information on this
matter and therefore recommended that scientists from the Contracting Parties provide available
information to the Sub-Committee, which would facilitate giving a response to the
It appears however that no further information was forthcoming.
Nevertheless building on these previous actions, Bermuda was represented at the 2011
Meeting of the ICCAT Sub-Committee on Ecosystems held in Miami, and, on behalf of the
Sargasso Sea Alliance, made a presentation on the importance of the Sargasso Sea ecosystem.
In the light of the 2005 ICCAT resolution, the 2006 recommendation from the Sub-Committee
on Ecosystems, and the information provided by the Sargasso Sea Alliance, the Sub-Committee
Northwest Atlantic Fisheries Organization (NAFO). Sargasso Alliance,
institutions/nafo (last visited Jan. 25, 2014).
The International Convention for the Conservation of Atlantic Tunas was signed in Rio de Janeiro, Brazil, in
1966. It entered into force in 1969 and currently has 48 parties. Further details at:
http://www.iccat.int/en/contracting.htm. For geographical scope see Article 1, ICCAT Convention – text at
ICCAT Resolution 05-11 on Pelagic Sargassum, at https://www.iccat.int/Documents/Recs/compendiopdf-
See South Atlantic Fisheries Management Council, Fisheries management Plan for Pelagic Sargassum Habitat of
the South Atlantic Region (SAFMC 2002). Available : http://safmc.net/Library/pdf/SargFMP.pdf
Current version is 109th Congress Public Law 479; An Act to amend the Magnuson-Stevens Fishery Conservation
and Management Act to authorize activities to promote improved monitoring and compliance for high seas
fisheries, or fisheries governed by international fishery management agreements, and for other purposes. Jan. 12,
2007 - [H.R. 5946] Text at: http://www.gpo.gov/fdsys/pkg/PLAW-109publ479/html/PLAW-109publ479.htm.
The US South Atlantic Fishery Management Council prepared a Fishery Management Plan that limits commercial
harvest of Sargassum in US waters to 5,000 lbs per year. The long-term objective is to give Sargassum full protection
and ensure that there is no net loss of this important fish habitat off US shores.
ICCAT Report 2006-2007, Appendix 10, item 6.
The presentation is summarized in Appendix 8 of the 2011 Report. Available at
16 | P a g e
encouraged scientists from Contracting Parties to examine the available data to assess better the
importance of pelagic Sargassum to tuna and tuna-like species.
In 2011, the Government of
Bermuda formally introduced the Alliance objectives to the full ICCAT Commission through an
intervention at the Commission meeting.
The following year, in November 2012, at the Annual ICCAT Commission meeting in
Agadir, Bermuda proposed a recommendation that the SCRS examine the data compiled on the
Sargasso Sea and the impacts of fishing activity on tuna and tuna-like species and on the area’s
ecosystems, and that it consider the viability of establishing special conservation and
management measures within the Sargasso Sea.
The proposed recommendation noted that the
Convention requires Parties to protect and preserve rare or fragile ecosystems, as well as the
habitat of depleted, threatened or endangered species; that the UN Fish Stocks Agreement calls
for the protection of biodiversity in the marine environment, and refers to the need to take
ecosystem considerations into account, as well as to ensure compatibility between conservation
and management measures adopted on the high seas and those adopted in areas under national
and noted also that many countries, including Contracting Parties, are moving to
incorporate ecosystem considerations into their fisheries management measures.
The proposed recommendation was strongly supported by the EU, the US and a number
of other delegations, but encountered opposition from countries that appeared not to accept the
significance of the 2012 CBD COP decision on EBSAs discussed above.
Commission did resolve to request the SCRS to examine the available data and information
concerning the Sargasso Sea and its ecological importance to tuna and tuna-like species and
ecologically associated species;
and to provide an update on the progress of this work in 2014
and report back to the Commission with its findings in 2015.
The long time frame is the result
of the fact that the main brunt of the work will be undertaken by the Sub-Committee on
Ecosystems, which is currently involved in a major assessment of turtle by-catch but which has
not to date had to assess the ecological importance of a complete ecosystem like the Sargasso
At the 2013 Meeting of the Subcommittee, Bermuda and the Alliance put forward a
major inventory of the ‘tuna and tuna-like species’ found within the Sargasso Sea.
Ecosystem Subcommittee report states that:
Above n 85.
Which was narrowly defined to include those ICCAT squares outside the EEZs of coastal States (except
Bermuda) and west of the mid-Atlantic and delineated by a polygon with the following co-ordinates: (-65.0 25.0,-
70.0 25.0,-70.0 30.0,-70.0 35.0,-65.0 35.0,-65.0 40.0,-60.0 40.0,-55 40,-50.0 40.0,-50.0 35.0,-50.0 30.0,-50.0 25.0,-55.0
25.0,-60.0 25.0,-65.0 25.0).
Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of
10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 88, Arts 5(d), 5(e), and
The draft is not in the record of the meeting, but see further D Freestone et al, “Place -based Dynamic
Management of Large Scale Ocean Places: Papahānaumokuākea and the Sargasso Sea” (2014) 33 Stanford
Environmental Law Journal 191, 215.
See n 73, and the accompanying text.
Resolution by ICATT on the Sargasso Sea, Res 12-12 (2102). Reproduced in ICATT, Report for biennial period 2012-
13 Part I, (ICAAT 2012) vol 1 at 215. Available at http://www.iccat.es/Documents/BienRep/REP_EN_12-
13_I_1.pdf, para 1.
ibid, para 2.
BE Luckhurst, ‘Inventory and Ecology of Fish Species of Interest to ICCAT in the Sargasso Sea’
(SCRS/2013/132). Noted in ICCAT Secretariat, Sub-Committee on Ecosystems, Report from the 2013 Inter-
17 | P a g e
The Group recommends continuing the contact with Sargasso Sea research teams and
the U.K.-Bermuda scientists to develop a scientific collaborative plan to accomplish
objective 2 of Res [12-12]. Additionally, the Group recognized that the above work is
providing a useful foundation for adopting this region as a basis for a case study in
implementing the Ecosystem Based Fisheries Management (EBFM) approach within
ICCAT and this collaboration should continue to be supported.
This conclusion was reported at the 2013 SCRS Meeting, and at the ICCAT Commission
Meeting in Cape Town, South Africa in November 2013, the chair of the SCRS reported that the
ecosystem group “recognized that basic biological and ecological data provided for the Sargasso
Sea offers a useful foundation for adopting the region as a basis for a case study…’
submitted two further papers to the Subcommittee meeting in Portugal in September 2014.
Under ICCAT Res [12-12], the SCRS is due to report to the full Commission at its meeting in
Malta in November 2015. The Sargasso Sea Commission Secretariat is commissioning further
research work in support of this process.
5. International Maritime Organization
The IMO has sponsored a complex web of international conventions regulating international
maritime shipping and vessel-source pollution issues. Its Marine Environmental Protection
Committee (“MEPC”) meets every eight months or so. Its primary environmental instrument is
the 1973/1978 MARPOL Convention. The IMO issues guidelines on a range of issue including
the establishment of Particularly Sensitive Sea Areas (PSSAs).
To date, however, PSSAs, which
need to be linked with an Associated Protection Measure (APM), such as ship routing
requirements or discharge restrictions, have not been declared in the high seas.
In 2011, the
Alliance commissioned a major study on maritime traffic through the Sargasso Sea, which
demonstrates the extent of heavy traffic which passes regularly through that part of the North
In 2011 and 2012, the Alliance organised a well-attended side events at the MEPC,
highlighting the importance of the ecosystem and the need for some forms of protection.
Bermuda has its own shipping registry with some two hundred vessels, but it is not a separate
member of the IMO. Any Bermudian proposal for new shipping measures in the Sargasso Sea to
be adopted by the IMO would therefore need to be presented through the UK. Discussions with
the UK as to what might be appropriate protection measures are still ongoing.
6. International Seabed Authority
sessional Meeting of the Sub-Committee on Ecosystems (Madrid, Spain – July 1 to 5, 2013) 2, available at
Summary of the Report of the Inter-Sessional Meeting of the Sub-Committee on Ecosystems, in ICAAT, ICCAT
Report for the biennial period, 2012-2013 Part II - vol 2. (ICAAT 2014) Appendix 9: 334, 336. Available at:
BE Luckhurst, Analysis of ICCAT reported catches of tunas and swordfish in the Sargasso Sea (1992-2011)
(SCRS/2014/119), available at http://www.sargassoalliance.org/storage/documents/Luckhurst_2014_-
_SCRS_2014_119.pdf and BE Luckhurst, A preliminary food web of the pelagic environment of the Sargasso Sea with a focus on
the fish species of interest to ICCAT (SCRS/2014/120), available at
On the evolution of this concept see Gjerde and Freestone (n 24).
See Roberts (n 25).
J Roberts, Maritime Traffic in the Sargasso Sea: an Analysis of International Shipping Activities and their Potential
Environmental Impacts. Sargasso Sea Alliance Science Report Series, No 9 (2011). Available only on line at
18 | P a g e
The ISA has jurisdiction over seabed mineral resource exploration and exploitation in the Area
including beneath the Sargassum habitat of the Sargasso Sea.
According to a recent study
conducted by the Alliance, the geological context of the region suggests that mineral resources
may be found in the Sargasso Sea Study Area.
While some resources like aggregates or
phosphates are likely not viable for exploitation, hydrocarbons, gas hydrates, manganese nodules
and polymetallic sulphides might be of potential commercial interest.
Manganese nodules and
cobalt-rich manganese crusts are likely to be the most commonly occurring mineral resource in
the Sargasso Sea Study Area. Despite their relatively low value, the high local abundance and
grade of these resources means that in the long run they might be extracted. As yet there seems
to be little interest, although in 2010, the Russian Federation requested an exploration license in
the Mid-Atlantic Ridge, adjacent to the Study Area, signalling a growing interest in polymetallic
sulphides as an economically viable ore deposit likely for rare earth and trace metal deposits used
in computers and mobile phones. The French institution IFREMER also has an exploration
license for an area north of the Russian area also on the Mid-Atlantic Ridge.
While it seems unlikely in the near future, it is possible that deep seabed mining,
particularly for polymetallic sulphides could be contemplated in the eastern part of the Sargasso
Sea Study Area. However, no action has yet seemed appropriate in relation to seabed mining in
the Sargasso Sea, which is currently a remote possibility. The ISA Secretariat has participated in
Alliance scientific and other meetings and was represented at the Hamilton Meeting in March
2014. The Secretariats of the ISA and the new Sargasso Sea Commission are also developing a
form of collaboration to promote further discussion and information sharing between the two
7. Convention on the Conservation of Migratory Species of Wild Animals
The 1979 Convention on the Conservation of Migratory Species (“CMS”) aims to protect
migratory species throughout their ranges. Under the CMS, States can enter into Range State
Agreements and/or Memoranda of Understanding to protect species (which are listed in the
Appendices) within their full habitat range and can serve as a strong example of how
international collaboration can improve marine protection for a species present across
jurisdictions, and even in ABNJ.
Well-known examples include the Agreement on the
Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area
and the Memorandum of Understanding on the Conservation of Migratory
the latter of which is open to a broader range of governments which may not be party
to the CMS, such as the US.
The ISA was established under UNCLOS, Arts 156–158.
This is partially due to the availability of plentiful non-marine sources for phosphates. See L Parson and R
Edwards, The Geology of the Sargasso Sea Alliance Study Area: Potential Non-Living Marine Resources and an Overview of the
Current Territorial Claims and Coastal State Interests. Sargasso Sea Alliance Science Report Series No. 8 (2011). Available
The Russian Federation proposal is specifically on the Mid-Atlantic Ridge itself, south of 10°S. Ibid.
Signed 23 June 1979, entered into force 1 November 1983; text at (1980) 19 ILM 11. Migratory species may be
listed under Appendix I and/or II. Appendix II species may be the subject of Range State AGREEMENTS (sic, per
text of Article V) between Parties.
Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area
1996, (1997) 36 ILM 777.
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The CMS is potentially a significant tool for Sargasso Sea conservation because many
animal species migrate through the Sargasso Sea, including the commercially important American
and European eels, and several cetacean species. The UK has extended its ratification of the
CMS to Bermuda. Early in 2014, conscious of the fact that the CMS COP was to take place in
November 2014, the Alliance commissioned a draft science proposal for the listing of the
European eel (Anguilla anguilla) on Appendix II of the Convention.
Species can be listed under
Appendix II if they have an “unfavourable conservation status” and if, inter alia, their
conservation status “would significantly benefit from the international cooperation that could be
achieved by an international agreement.”’
Although listing a species under Appendix II does
not prohibit harvesting or trade, parties to the CMS must ‘endeavour to conclude Agreements
covering the conservation and management’ of listed species.
However, Anguilla anguilla is
already listed under CITES Appendix II (requiring certification of exports) and the EU has
banned trade with third countries.
After the Hamilton meeting in March 2014, in furtherance
of the agreement to collaborate contained in the Hamilton Declaration, the Government of
Monaco took up the case for the listing of Anguilla anguilla and submitted a proposal to the CMS
Science Council in July 2014.
The Science Council recommended listing under Appendix II,
and at the CMS COP in Quito, Ecuador in November 2014 the Parties agreed to include Anguilla
anguilla in Appendix II.
The next step will be the facilitation of a Range State workshop to
discuss appropriate collaborative conservation measures.
8. Inter-American Convention for the Protection and Conservation of Sea Turtles
The 1996 Inter-American Convention for the Protection and Conservation of Sea Turtles came
into force in 2001 and now has 15 parties.
The Convention promotes the protection,
conservation and recovery of the populations of sea turtles and those habitats on which they
depend, on the basis of the best available data and taking into consideration the environmental,
socioeconomic and cultural characteristics of the Parties.
Several endangered or critically
endangered species of turtle, including green turtles (Chelonia mydas), hawksbill turtles
(Eretmochelys imbricate), loggerhead turtles (Caretta caretta), and Kemp’s Ridley turtles (Lepidochelys
kempii), use Sargassum weed for cover, feeding and nursery habitat. The UK (and hence Bermuda)
is not a party to the Convention.
After preliminary discussion about a collaboration arrangement between the Sargasso Sea
Commission and the Convention’s Secretariat, the secretariats have agreed informally to
collaborate on a joint paper on the importance of Sargassum and the Sargasso Sea for Atlantic sea
turtles. This paper will demonstrate the important migration links between turtles in Bermuda
and many of the Central American countries.
Proposal for inclusion of the European eel (Anguilla anguilla) on Appendix II of the Convention on the Conservation of Migratory
Species of Wild Animals, prepared for the SSA by Dr M Gollock and Dr D Jacoby of the Zoological Society of
London, June 2014. (On file with author)
CMS, Art IV(1).
CMS, Art IV(3)(c).
Council Regulation (EC) No. 1100/2007 of 18 September 2007 establishes measures for the recovery of the
stock of European eel. OJ 2007 L248/17.
UNEP/CMS/ScC18/Doc.7.2.18. Proposal II/12
For text see: http://www.iacseaturtle.org/eng-docs/Texto-CIT-ENG.pdf. Parties are: Argentina, Belize, Brazil,
Chile, Costa Rica, Ecuador, Guatemala, Honduras, Panama, Mexico, Peru, the Netherlands, United States of
America, Uruguay and Venezuela. Nicaragua has signed but not ratified.
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9. The World Heritage Convention
The 1972 World Heritage Convention (“WHC”) envisages the inscription, in the World Heritage
List, of sites of “outstanding universal value” that are part of the world’s “natural” and “cultural”
heritage, defined in Articles 1 and 2 respectively.
As at 10 March 2015, 1007 sites are inscribed
on the World Heritage List of which about twenty per cent are “natural” sites. Of these, forty-six
sites in thirty-five countries are inscribed specifically for their marine values.
Nothing in the texts of Articles 1 and 2 of the WHC suggests that sites proposed for
inscription could not be in areas beyond national jurisdiction. However, the procedures
established seem to restrict nomination to sites which are “situated on the territory” of any of its
Parties (Articles 3 and 4) or “in its territory” (Article 11). It has consequently been remarked that
a World Heritage List that excludes sites in ABNJ (which consists of nearly half the globe)
should perhaps be called “Half the World Heritage.”
The issue was raised in 2011 after an
audit of the “Global Strategy for a credible, balanced and representative World Heritage List.”
Consequent to this, the Convention Secretariat began, in collaboration with the IUCN, to look at
a scientifically sound method through which the concept of outstanding universal value in the
Convention might be applied to the high seas. The Alliance, and now the Sargasso Sea
Commission, is in correspondence with the Secretariat of the UNESCO World Heritage
Committee, and the Sargasso Sea would clearly be a prime candidate for such a development.
10. Other conventional regimes
a) Western Central Atlantic Fishery Commission
Although there is no regional fisheries management regime governing the entire Sargasso Sea,
there is an FAO fisheries advisory body that includes the geographic area of which the Sargasso
Sea is part: the Western Central Atlantic Fishery Commission (WECAFC),
to which the UK is
a party. WECAFC practice has recently shown potential for the adoption of conservation-
minded approaches. The February 2012 WECAFC meeting included a resolution on
strengthening the implementation of international fisheries instruments.
WECAFC noted the
Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 23 November 1972,
entered into force 15 December 1975); 1037 UNTS 151.
For an official list of sites see: UNESCO World Heritage List. Available http://whc.unesco.org/en/list/
Attributed to Professor Dan Laffoley, Marine Vice Chair of the IUCN World Commission on Protected Areas.
See Freestone and Morrison (n 61) 654.
Available at http://whc.unesco.org/en/globalstrategy/
The WECAFC was established under FAO Resolution 4/61 (1973), as amended by Resolution 3/74 (1978). IN
2006, it was revised by Resolution 1/131 (2006). Available at:
ftp://ftp.fao.org/FI/DOCUMENT/wecafc/statutes.pdf. The general objective of the Commission is to promote
the effective conservation, management and development of the living marine resources of the area of competence
of the Commission, in accordance with the FAO Code of Conduct for Responsible Fisheries, and address common
problems of fisheries management and development faced by members of the Commission. The work of the
Commission is guided by the following three principles: promote the application of the provisions of the FAO Code
of Conduct on Responsible Fisheries and its related instruments, including the precautionary approach and the
ecosystem approach to fisheries management; ensure adequate attention to small-scale, artisanal and subsistence
fisheries; and coordinate and cooperate closely with other relevant international organizations on matters of
Resolution on Strengthening the Implementation of International Fisheries Instruments-WECAFC 14 Session,
Panama City, 6–9 February 2012 (WECAFC/XIV/2012/7. Available at:
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need to preserve biodiversity, minimize the risks of long-term or irreversible effects of
fishing operations, avoid adverse impacts on the marine environment, maintain the
integrity of marine ecosystems including deep-sea vulnerable marine ecosystems and
effectively apply the precautionary and ecosystem approaches to fisheries management.
Furthermore, WECAFC “agree(d) to take actions and measures to strengthen implementation of
existing international fisheries instruments and those that may be developed in the future .…”.
The Alliance is in communication with the WECAFC Secretariat and representatives of the
Alliance Secretariat as well as of Bermuda have participated in WECAFC meetings, including a
workshop financed by the Global Environment Facility to prepare a billfish management and
conservation plan for the western Central Atlantic.
b) Related regional sea treaties
Although there is no regional sea agreement covering the waters of the Sargasso Sea, there are a
number of regional seas agreements which cover adjacent, if not necessarily abutting, regional
sea areas. The OSPAR Convention, discussed above,
whose geographical area of application
includes the ABNJ areas of the North East Atlantic, has already developed a network of MPAs
in ABNJ. In 2012 the Alliance and the OSPAR Secretariat signed a Collaboration
Two UNEP Regional Seas Agreements cover areas to the east and south
respectively: the Abidjan Convention for Co-operation in the Protection and Development of
the Marine and Coastal Environment of the West and Central African Region,
and the 1983
Cartagena Convention for the Protection and Development of the Marine Environment of the
Wider Caribbean Region (the Cartagena Convention).
Both Secretariats attended the Pocantico
meeting discussed below and are interested in on-going collaboration.
V. THE HAMILTON DECLARATION ON COLLABORATION FOR THE
CONSERVATION OF THE SARGASSO SEA
On 11 March 2014, the Government of Bermuda, with the support of the Alliance, convened an
historic inter-governmental meeting in Hamilton, Bermuda to adopt the Hamilton Declaration
on Collaboration for the Conservation of the Sargasso Sea.
Ibid, preambular para 9.
Ibid, para 2.
A meeting, attended by Bermuda and the Alliance, was held in Fort Lauderdale, Florida 19020 March 2013.
At n 35.
Because the Sargasso Sea Alliance does not have international legal personality, the OSPAR Linguists and Jurists
Committee recommended the use of the term “Arrangement” rather than agreement. Text is at
The 1981 Convention for the Co-operation in the Protection and Development of the Marine and Coastal
Environment of the West and Central African Region (Abidjan Convention) entered into force in 5 August 1984,
(1981) 20 ILM 746. The Abidjan Convention has 16 African States Parties who cooperate to protect and develop
the marine and coastal environment of the West and Central African Region (within their 200 nm EEZs).
The 1983 Convention for the Protection and Development of the Marine Environment in the Wider Caribbean
Region (Cartagena Convention) entered in force 11 October 1986, (1983) 22 ILM 221. The Convention has some 28
countries that border the Gulf of Mexico, the Straits of Florida and the Caribbean Sea, it applies out to a distance of
200 nm. See http://www.cep.unep.org/cartagena-convention
The full text of the Hamilton Declaration is appended to Freestone and Morrison (n 57), 354-361.
22 | P a g e
The Hamilton Declaration is the result of a two-year negotiation between interested
governments that are either located in the broader Sargasso Sea area, have an interest in species
within it, or are interested in high seas conservation more generally. It is historic in that is the
first non-binding instrument designed to provide a framework for voluntary intergovernmental
collaboration to promote measures, through existing international organizations, to minimize the
adverse effects of human activities in an ecosystem that is primarily in ABNJ. The Declaration
also envisages the establishment of a Sargasso Sea Commission, to ‘exercise a stewardship role
for the Sargasso Sea and keep its health, productivity and resilience under continual review.’
A. The Pocantico Meetings
A preliminary meeting was held in early December 2012, at the Pocantico Center in New York
to discuss the first draft of the Declaration. Invitations were issued to a large number of
countries in the Atlantic rim around the Sargasso Sea as well as in Europe (primarily the North
Sea States concerned about the fate of the European eel (Anguilla anguilla)), and a range of
relevant international organisations. Official representatives attended from the governments of
Bermuda, Belgium, Dominican Republic, Portugal, South Africa, Sweden, Trinidad & Tobago,
the United States and the United Kingdom, as did a representative from the European
In addition, representatives from international and regional organizations
participated as observers, including the UN Division of Ocean Affairs and Law of the Sea
(“DOALOS”), the Regional Coordinators from the UN Environment Programmes for the
Wider Caribbean (the Cartagena Convention) and West Africa (the Abidjan Convention), the
Secretariat of the CBD, and the Caribbean Community (“CARICOM”). At this first Pocantico
Meeting, participants developed a negotiated text for review and consideration by the
governments interested in signing it. The text was later presented to the EU Council of Minsters
Committee on Law of the Sea issues (“COMAR”) in Brussels in March 2013 and reviewed by
COMAR on a number of occasions thereafter.
A second meeting was held in Pocantico in November 2013 to finalize the text for
signature. Together with a representative from the European Commission, official
representatives attended from the governments of Portugal, the Azores, the Bahamas, Belgium,
Dominican Republic, the Netherlands and Monaco, the US and the UK. The International
Seabed Authority and the Canadian Senate participated as observers.
B. The Hamilton Meeting
Representatives from eleven governments and five international organizations were represented
at the Hamilton Meeting.
Although, the Declaration is not a legally binding instrument,
the final days before the meeting the EU apparently had reservations about the competence of
individual member States to sign without a decision of the EU Council of Ministers. The result
Hamilton Declaration, ibid, Annex II, paragraph a.
The Pocantico Center of the Rockefeller Brothers Fund in Tarrytown, New York.
Freestone and Morrison, (n 57) 350.
Available at http://archive.constantcontact.com/fs169/1109154724045/archive/1112961582336.html
Representatives from the Oslo and Paris Commission (OSPAR), the ISA, the Inter-American Convention for the
Conservation of Atlantic Sea Turtles, the CMS and the International Union for the Conservation of Nature (IUCN)
attended and spoke.
As its text explicitly states in the ninth paragraph of the preamble, Hamilton Declaration (n 57).
23 | P a g e
was that a number of EU governments did not attend or attended but did not sign the
Declaration. There was also a last minute change to the definition of the ‘area of collaboration’ as
set out in Annex I of the Declaration.
In the initial negotiations of the Declaration it was
envisaged that the area covered by the CBD EBSA (which includes the EEZ of Bermuda) would
be the area of collaboration, but at the request of the Bermuda Government, the Bermuda EEZ
was excluded from the definition and thus from the competence of the Commission.
In the event, the Declaration was signed by five governments: Azores, Bermuda,
Monaco, UK and the US. Representatives from Bahamas, British Virgin Islands, Netherlands,
South Africa, Sweden and the Turks and Caicos Islands attended and spoke in support, and
messages of support were also received from the governments of Puerto Rico and the
C. Text of the Hamilton Declaration
The Declaration recognizes the Government of Bermuda for its important leadership role in
bringing to international attention the global significance of the Sargasso Sea and for initiating
and continuing the process leading to the convening of the Hamilton meeting. The Preamble
reinforces the point that the 1982 Convention is the framework for this collaboration, recognizes
the important scientific work of the Sargasso Sea Alliance, and recognizes explicitly that the
Declaration “is not legally binding and is without prejudice to the existing legal rights and
obligations of the Signatories under international law or to the competences of regional and
The guiding principle of the Declaration is to conserve the Sargasso Sea ecosystem for
the benefit of present and future generations, and Paragraph 3 states that the basic objective is
for the Signatory States to agree to collaborate in pursuing conservation measures for the
Sargasso Sea ecosystem through existing regional and international organizations with relevant
competences. Paragraph 8 further develops this concept, entrusting the Sargasso Sea
Commission (discussed below) with the role of developing proposals for such measures for
consideration by the Signatories to the Declaration; the Signatories may then decide whether to
submit these or support them at relevant regional or international organizations. It envisages
that the Commission may develop the same type of measures as the type already developed by
the Alliance, as discussed above.
Such measures would seek to address the adverse effects of
the full range of human activities, itemized in Paragraph 8 of the Declaration.
The Declaration sets up a light intergovernmental process (loosely modelled on the
Migratory Sharks MOU negotiated under the CMS).
It envisages a ‘Meeting of Signatories’ and
endorses the establishment of a Sargasso Sea Commission with a Secretariat and supporting
financial mechanism. The small permanent Secretariat will assist both bodies, and a financial
mechanism to receive voluntary contributions from both public and private sources has been
established, including a dedicated fund in Bermuda. There are no mandatory financial
Hamilton Declaration (n 57) at 359.
ibid, preamble, para 9.
See section IV.A, above.
The structure is very loosely modelled on the structure of The Memorandum of Understanding on the
Conservation of Migratory Sharks is an instrument developed under the auspices of the Convention on Migratory
Species. Text is at: http://sharksmou.org/sites/default/files/Migratory_Shark_MoU_English.pdf. As of February
2014, the MOU has 36 Signatories: 35 national governments and the European Union. http://sharksmou.org/list-
24 | P a g e
obligations but Signatories are invited on a voluntary basis, to support the work of the
D. The Sargasso Sea Commission
The Sargasso Sea Commission is a unique body, derived from a voluntary instrument to exercise
a stewardship role for a unique ecosystem in ABNJ. It is to be composed of ‘distinguished
scientists and other persons of international repute committed to the conservation of high seas
ecosystems’ serving in their personal capacity.
In August 2014, after a nomination and
consultation process involving the Signatory governments, the Government of Bermuda
appointed the first Sargasso Sea Commission.
The Commission has taken over the role of the
Alliance and is charged with developing further proposals for conservation measures for
consideration by existing sectoral organisations (IMO, ICCAT etc.), and which Participating
Governments would consider supporting through those organisations. Through the Secretariat,
the Commission would also have the usual liaison, co-operation, monitoring, outreach and
information clearing house roles.
The work of the Sargasso Sea Alliance and the signature of the Hamilton Declaration may
indeed represent a new paradigm for high seas conservation. Regional treaty regimes, while still
important, take a long time to negotiate, move slowly and cannot bind third parties.
Alliance was funded by a group of forward thinking private donors; it worked with the
Government of Bermuda, and ultimately the UK, in a novel form of public-private partnership.
The Hamilton Declaration is not a legally binding instrument, but the Signatories have agreed to
work together through the international legal mechanisms that already exist. The Sargasso Sea
Commission will not have international legal personality, nor will it have management authority
per se. But its ‘stewardship’ role does have the potential for it to be an important voice, to provide
the scientific and policy underpinnings for monitoring and management by others, and to be the
conscience of the Signatories.
The Sargasso Sea project provides an interesting insight into the way in which the current
system of high seas governance operates within the framework of the law of the sea. As
discussed above, Article 197 can be taken perhaps as a benchmark for what the participants in
the Third Conference on the Law of the Sea had in mind for the way that the international
community would co-operate to achieve the strong requirements of marine environment
protection set out by Part XII, and particularly Article 192. Article 197 requires States Parties to
Hamilton Declaration (n 57) para 6.
The First Commissioners are: Dr Billy Causey (US), Professor Howard Roe (UK), Professor Ricardo Serrão
Santos (Azores), Professor Dire Tlade (South Africa) and Dr Tammy Trott (Bermuda). See further
The initial mandate of the Commission is set out in Annex II to the Hamilton Declaration (n 57).
For a comparison of the OSPAR experience and the SSA see David Freestone et al, ‘Can existing institutions
protect biodiversity in areas beyond national jurisdiction? Experiences from two on-going processes’ (2014) 49
Marine Policy 167-275. http://dx.doi.org/10.1016/j.marpol.2013.12.007. For a comparison with a large marine area
within national jurisdiction see D Freestone et al, ‘Place Based Dynamic Management of La rge Scale Ocean Places:
Papahānaumokuākea and the Sargasso Sea’ (2014) 33 Stanford Environmental Law Journal 191-248.
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… co-operate on a global basis and, as appropriate, on a regional basis, directly or
through competent international organizations, in formulating and elaborating
international rules, standards and recommended practices and procedures consistent with
this Convention, for the protection and preservation of the marine environment, taking
into account characteristic regional features.
There is obviously a great deal of evidence of State co-operation through some existing
organisations. The IMO has a network of nearly 100 treaties and instruments covering a wide
spectrum of navigation and vessel source pollution rules and standards. A similarly sophisticated
regime is developing through the work of the ISA in developing the ‘Mining Code’ for seabed
exploration and exploitation. The performance of Regional Fisheries Management Organisations
in “formulating and elaborating international rules, standards and recommended practices and
procedures consistent with this Convention”
is unfortunately not as impressive; even the
criteria and requirements developed by the Fish Stocks Agreement
have been poorly
However the real weakness is in the lack of any co-ordination between these
As indicated earlier, each sectoral regime has its own distinctive protection mechanisms
and assesses differently the factors that need to be taken into account, resulting in a plethora of
distinct sectoral regimes designed to protect specific areas of the ocean from individual sectorally
specific risks. The IMO uses MARPOL Special Areas and PSSAs, RFMOs use VMEs and
‘closed areas,’ and the ISA is talking of ‘reference areas’ and ‘Areas of Particular Environmental
Interest.’ Each of these approaches has value but each is developed and assessed by its own
epistemic community; it is not developed with any reference to the work of other sectoral
bodies. Hence the only relevant threats arise from within the sector – it is rare to see
consideration of cumulative impacts from different sectors.
The concept, developed by the CBD, of the science-driven description of certain marine
areas as ‘ecologically or biologically significant’ does in theory have the potential to act as a
unifying concept, that each sectoral regime could recognise and utilise. Unfortunately, it seems
for a number of reasons, EBSAs have not as yet seemed to have garnered credibility or broad
acceptance within the various sectoral organisations.
This reality may change, but at least this
has been the early experience in relation to the Sargasso Sea.
The Sargasso Sea project has to date shown some signs indicating that sector-by-sector
approaches to high seas protection utilising existing institutions may indeed be possible.
However, it has also already shown that making the necessary linkages between sectors is
difficult and that multi-sectoral protection is likely to involve a long, drawn out process. The
international governance arena is, in this respect, similar to national government, where different
ministries with different personnel have different perspectives on similar issues and do not
always liaise effectively – the so-called “silo effect”. Some national governments have worked out
ways to address this, possibly endemic problem, but at the international level the only body with
overarching responsibility is the UNGA. The UNGA has taken an active and informed interest
UNCLOS Art 197.
Fish Stocks Agreement (n 89). Most notably the requirements for the ecosystem approach and the precautionary
approach, see D Freestone, ‘Implementing Precaution Cautiously: The Precautionary Approach in the 1995
Agreement’ in E Hey (ed), Developments in International Fisheries Law (Kluwer Law International 1999); D Freestone
and Z Makuch, ‘The New International Environmental Law of Fisheries: The 1995 UN Straddling Stocks
Agreement,’ (1996) 7 Yearbook of International Environmental Law 3.
This is borne out by the series of Performance Reviews conducted on RFMOS, conveniently collected for the
Tuna Conventions at http://www.tuna-org.org/
See Freestone and Morrison (n 77) 5.
26 | P a g e
in ocean affairs, but it has a busy agenda and experience suggests that in the long term it is
probably not the most effective forum for overseeing ocean governance issues. The findings of
the Sargasso Sea project are that a more holistic approach to ocean governance in ABNJ seems
to need a more fundamental review. In this regard the January 2015 recommendation to the
UNGA from the BBNJ working Group, discussed above,
that it decide to initiate a process to
negotiate a new implementation agreement for ABNJ under the 1982 Convention is to be
Section III, above.