Available via license: CC BY 4.0
Content may be subject to copyright.
Contents lists available at ScienceDirect
Marine Policy
journal homepage: www.elsevier.com/locate/marpol
Implementation challenges of area-based management tools (ABMTs) for
biodiversity beyond national jurisdiction (BBNJ)
Elizabeth M. De Santo
Department of Earth and Environment, Franklin & Marshall College, PO Box 3003, Lancaster, PA 17603, United States
ARTICLE INFO
Keywords:
UNCLOS
MPAs
BBNJ
Science-policy interface
Enforcement
Stakeholder engagement
ABSTRACT
Area-based management tools (ABMTs), including marine protected areas (MPAs) are widely recognized as a key
mechanism for conserving and restoring biodiversity. The developing international legally-binding instrument
(ILBI) on biodiversity beyond national jurisdiction (BBNJ) is considering a range of approaches to ABMTs. While
the process is still in early stages, this paper looks ahead to anticipate implementation challenges for ABMTs,
given previous experiences with regional fisheries management organizations (RFMOs) and high seas MPAs.
Drawing on the implementation of MPAs under the OSPAR Convention and the Convention on the Conservation
of Antarctic Living Marine Resources (CCAMLR), key suggestions revolve around: (1) improving the evidence
basis for protecting BBNJ, (2) designing effective compliance and enforcement mechanisms, and (3) engaging
adequately with relevant stakeholders. In addition to the case studies, which are primarily marine pollution and
fishing-oriented, considerations related to mitigating the effects of deep sea mining and the harvesting of marine
genetic resources are also touched upon.
1. Introduction
1.1. Overview of ABNJ process and introduction to ABMTs including MPAs
Following more than a decade of informal discussions and efforts,
both within and beyond the United Nations (UN), in June 2015 the UN
General Assembly adopted a Resolution
1
on the conservation and sus-
tainable use of marine biological diversity in areas beyond national
jurisdiction (ABNJ). This action put into motion a process that will soon
shift from preparatory to formal negotiations on an international legally
binding instrument (ILBI), which will buttress the 1982 UN Convention
on the Law of the Sea (UNCLOS) and allow it to better address marine
management and conservation challenges of the 21st century. Four
Preparatory Committee (PrepCom) meetings were held between April
2016 and July 2017, aimed at providing substantive and procedural
recommendations for an ILBI to the General Assembly, and the formal
negotiations are beginning in September 2018. The key items to be
addressed under the ILBI include: (1) marine genetic resources (MGRs),
(2) area-based management tools (ABMTs), including marine protected
areas (MPAs), (3) environmental impact assessments, and (4) capacity
building and technology transfer.
ABMTs can be defined as spatial closures that offer a degree of
protection greater than the surrounding area “due to more stringent
regulation of one or more of all human activities, for one or more
purposes”[1]. In addition to MPAs, these include Emission Control
Areas/Special Areas and Particularly Sensitive Sea Areas
2
(PSSAs),
seasonal or year-round area fisheries closures, and Areas of Particular
Environmental Interest
3
(APEIs). Compared with MPAs, which offer a
https://doi.org/10.1016/j.marpol.2018.08.034
Received 27 April 2018; Received in revised form 26 August 2018; Accepted 27 August 2018
E-mail address: edesanto@fandm.edu.
1
United Nations General Assembly Resolution on the Development of an International Legally Binding Instrument under the United Nations Convention on the
Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (A/Res/69/292), 19 June 2015.
2
Emission Control Areas/Special Areas and PSSAs are under the International Maritime Organization's (IMO) International Convention for the Prevention of
Pollution from Ships (MARPOL).
3
APEIs are under the International Seabed Authority.
Marine Policy 97 (2018) 34–43
Available online 05 September 2018
0308-597X/ © 2018 The Author. Published by Elsevier Ltd. This is an open access article under the CC BY license
(http://creativecommons.org/licenses/BY/4.0/).
T
degree of long-term in situ conservation, ABMTs may be more adap-
tive/tailored to particular sectors, but also potentially shorter-term
measures [1].
MPAs
4
are widely regarded as a key tool for biodiversity con-
servation, but are not infallible, particularly in remote areas that pose
challenges for surveillance, or are inadequately planned and sup-
ported.
5
There are currently 12 high seas MPAs (HSMPAs), which were
designated under two regional management bodies: two in the Southern
Ocean, under the Convention on the Conservation of Antarctic Marine
Living Resources (CCAMLR), and ten in the North-East Atlantic, under
the jurisdiction of the OSPAR Convention
6
and the North-East Atlantic
Fisheries Commission (NEAFC). Table 1 provides further details on
these HSMPAs and outlines the complexity and fragmentation of their
current governance and management.
Note that some of these areas are under consideration to be included
within the extended continental shelf (ECS) of some States, and thus
they may not be considered ABNJ in the future. In addition, the regimes
governing fishing in the water column and on the bottom differ among
themselves, and from the regime governing the seabed and subsoil.
That is not to say that it is impossible to harmonize overlapping re-
gimes, but it is complex and there are gaps where some sites are not
currently fully protected. For example, Hatton Bank and Hatton-Rockall
Basin are currently considered ABNJ but may become part of the UK's
ECS. Portions of these sites are monitored within NEAFC as closures for
bottom trawling, yet the water column above remains unprotected.
Moving forward with a regime for ABMTs and MPAs on the high seas,
standardizing a more uniform approach to protecting both the water
column and underlying bottom would improve the effectiveness of both
monitoring and biodiversity conservation objectives. Piecemeal ap-
proaches to governance are complex and render monitoring and en-
forcement difficult. Regional approaches have played an important role
to date [4] and there are many positive aspects to be built on in the new
ILBI, as discussed below within the context of OSPAR and CCAMLR.
While many marine management-related instruments already exist,
both within and beyond national jurisdiction, the marine environment
and marine biodiversity continue to deteriorate, and there is no formal
regime for designating MPAs on the high seas. The 1982 UN Convention
on the Law of the Sea (UNCLOS) contains provisions on conserving
living resources within exclusive economic zones (EEZs
7
) (Article 61),
and on the high seas
8
(Part VII, Section 2), the Convention lacks
mechanisms for establishing MPAs. While the 1992 UN Convention on
Biological Diversity (CBD) does provide such a mechanism, it is not
applicable beyond national jurisdiction (however, there is some debate
on the CBD's jurisdictional scope in ABNJ
9
). This is of particular im-
portance with respect to the CBD's targets for biodiversity conservation.
In 2010 the 10th Conference of Parties (COP) to the Convention
adopted the Aichi Biodiversity Targets, which stipulate: “By 2020, at
least 17 per cent of terrestrial and inland water, 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 landscapes and seascapes”
(Target 11). Without the authority to designate a network of HSMPAs,
the CBD is not currently being applied beyond 200 nm (or States’ECS).
Consequently, the only tools available for restricting access to areas
on the high seas currently fall within the purview of regional fisheries
management organizations (RFMOs), environmental protection con-
ventions with authority in ABNJ, such as OSPAR, and global bodies
operating throughout the high seas, e.g. the International Seabed
Authority (ISA) and the International Maritime Organization (IMO)
through the MARPOL Convention (although some aspects of the CBD
marine portfolio (e.g. Ecologically or Biologically Significant Areas)
include consideration of ABNJ). The IMO can designate (1) Special
Areas, which require particular mandatory methods for pollution pre-
vention, and (2) Particularly Sensitive Sea Areas (PSSAs) to protect
areas of special ecological, socio-economic, or scientific importance
that are vulnerable to damage by maritime activities. The criteria for
identifying PSSAs and Special Areas are not mutually exclusive, con-
sequently PSSAs may be identified within a Special Area, and vice-
versa. To date, no PSSAs have been declared in ABNJ, however two
Special Areas (one in the Antarctic area and one in the Mediterranean
Sea) do both include some ABNJ [5]. The ISA can designate Preserva-
tion Reference Zones, in which mining is prohibited in order to main-
tain representative and stable biota to aid comparison with mined
areas. The ISA has established Preservation Reference Zones in the
Clarion Clipperton Zone in the North Central Pacific, as well as a net-
work of nine Areas of Particular Environmental Interest (APEIs), aimed
at protecting different habitat types in the region at a large scale (each
is approximately 160,000 km
2
). In APEIs and exploration is prohibited
for at least five years, and these sites can be seen as providing a pre-
cautionary approach [6] and serving a biodiversity offsetting function
[7].
In addition to this fragmented approach to ocean governance in
ABNJ, another threat to successful high seas conservation is the un-
derlying “freedom of the seas”paradigm espoused in the UN
Convention on the Law of the Sea, which inevitably leads to a tragedy
of the commons scenario. An ILBI may not be able to solve the freedom
of the seas issue, wherein some States support implementing MPAs in
4
A widely accepted, international definition of an MPA is provided by the
IUCN (International Union for Conservation of Nature) as: “a clearly defined
geographic space, recognized, dedicated and managed, through legal or other
effective means, to achieve the long-term conservation of nature with asso-
ciated ecosystem services and cultural values”[2].
5
Agardy et al. [3] categorize five types of MPA shortcomings: (i) MPAs that
are too small or poorly designed to be ecologically sufficient; (ii) in-
appropriately planned or managed MPAs; (iii) MPAs that fail due to degrada-
tion of unprotected ecosystems surrounding them; (iv) MPAs that do more harm
than good, by displacing effort elsewhere; and (v) MPAs that create a dangerous
illusion of protection when none is occurring.
6
The 1992 Convention for the Protection of the Marine Environment of the
North-East Atlantic, which replaced (1) the 1972 Oslo Convention for the
Prevention of Marine Pollution by Dumping from Ships and Aircraft, and (2) the
1974 Paris Convention for the Prevention of Marine Pollution from Land-Based
Sources.
7
EEZs comprise coastal nation state jurisdiction in the oceans, out to 200
nautical miles (nm) from the baseline (normally the low-water mark). States
can extend their EEZs further in cases where their continental shelf extends past
200 nm, subject to review by the Commission on the Limits of the Continental
Shelf. States maintain sovereign rights within the EEZ, for both exploration/
exploitation and conservation/management of marine living and non-living
resources, both in the water column and on the seabed and under its subsoil.
8
The High Seas is defined as the area beyond national jurisdiction, in which
States exhibit the freedom of the seas (these include: navigation, overflight,
laying of submarine cables and pipelines, construction of artificial islands and
(footnote continued)
other installations permitted under international law, fishing, and scientific
research). The High Seas refers only to the water column, the seabed and ocean
floor beyond the Continental Shelf is referred to as The Area.
9
Article 4 of the CBD on Jurisdictional Scope stipulates that the provisions of
the Convention apply, in relation to each Contracting Party (a) in the case of
components of biological diversity, in areas within the limits of its national
jurisdiction, and (b) in the case of processes and activities, regardless of where
their effects occur, carried out under its jurisdiction or control, within the area
of its national jurisdiction or beyond the limits of national jurisdiction.
Consequently, while the CBD does not provide a specific mechanism for States
to enact MPAs on the high seas, it can be inferred that the Convention poses
some obligations on States not to undertake activities in ABNJ that could harm
biodiversity. Regardless, the international community at times talks about the
CBD Aichi Biodiversity Targets as though they have authority to protect the
global oceans, rather than just national jurisdictions.
E.M. De Santo Marine Policy 97 (2018) 34–43
35
Table 1
HSMPAs to date (as of July 2018) MPA size data from MPAtlas.org, OSPAR MPA restrictions/protections from [20].
Year Name Location Size (km
2
) Restrictions/Protections
Water column Bottom trawling Seabed & subsoil
2009 South Orkney Islands Southern
Shelf MPA (CCAMLR)
Southern Ocean. Claimed by the UK and
Argentina are frozen under the Antarctic
Treaty System (ATS)
93,819 100% no-take Governed under ATS
2016 Ross Sea Protected Area
(CCAMLR)
Southern Ocean, adjacent to Antarctica 1117,000 General
Protection Zone
100% no-take Governed under ATS
110,000 Special
Research Zone
Limited research fishing for krill and toothfish
Krill Research Zone Controlled research fishing for krill permitted
2012 Charlie Gibbs North HSMPA
(OSPAR)
Partly situated within an area that may
become part of Iceland's Extended
Continental Shelf (ECS)
178,651 Water column is protected
collectively by all OSPAR
Contracting Parties (CPs)
Bottom trawling and fishing with static gear,
including bottom set gillnets and longlines, has
been prohibited since 2004
Governed under UNCLOS, Iceland
may eventually govern portion
within ECS
2010 Charlie Gibbs South MPA
(OSPAR)
ABNJ 145,420 Long line pelagic fishing is regulated. Seabed, subsoil, and water column are protected collectively by all OSPAR CPs
2010 Milne Seamount Complex MPA
(OSPAR)
ABNJ 20,913 Seabed, subsoil, and water column are protected collectively by all OSPAR CPs
2010 Altair Seamount HSMPA
(OSPAR)
Currently ABNJ, may become part of
Portugal's ECS
4409 Upon invitation from Portugal,
OSPAR is collectively protecting
water column
Overlap with NEAFC closures Portugal intends to protect seabed
and subsoil
2010 Mid-Atlantic Ridge North of the
Azores HSMPA (OSPAR)
93,416
2010 Antialtair Seamount HSMPA
(OSPAR)
2208
2010 Josephine Seamount HSMPA
(OSPAR)
19,370 Under jurisdiction of multiple RFMOs
2006 Rainbow Hydrothermal Vent
Field (nominated)
22 Water column currently unprotected Seabed and subsoil are protected
by Portugal
2012 Hatton Bank SAC (nominated) Currently ABNJ, may become part of UK's
ECS
15,722 Overlap with NEAFC closure Seabed and subsoil are protected
by UK2014 Hatton-Rockall Basin
(nominated)
1256 Overlap with NEAFC closure
E.M. De Santo Marine Policy 97 (2018) 34–43
36
ABNJ, but others may be unwilling to accept said designations or be
bound by them [8]. On the enormous scale of the high seas, it is difficult
to instill the self-organized management of common pool resources
recommended by e.g. Ostrom [9] and others, even with regional
management approaches such as RFMOs, as the living resources are
highly mobile and there is significant illegal poaching. Increased sur-
veillance, both within MPAs and throughout the high seas, including
new technologies discussed in more detail below, may be the only way
to halt the tragedy of the commons in on the high seas, however the
legal framework and financing mechanisms for implementing policing
on such a large scale remain undefined.
Druel and Gjerde [10] outline a few approaches the ILBI could take
with regard to the process for ABMTs and MPAs that are worth keeping
in mind when examining the current progress towards HSMPAs, and
considering what design/direction to take: (i) it could set out a process
for designating an effectively managed, biogeographically re-
presentative and connected network of sites, requiring States and global
and regional organizations to cooperate; (ii) it could take a largely re-
gional approach, giving a mandate to States and relevant regional or-
ganizations to identify and submit MPA proposals to an international
authority for approval, with management responsibility remaining at
the regional level; (iii) a global scientific body could be tasked with
developing proposals for MPAs in line with existing processes (i.e. re-
gional approaches, existing RFMOs), or (iv) a broader framework for
integrated spatial planning and management could be initiated, aimed
at coordinating efforts between States and regional and sectoral orga-
nizations, requiring a coordinated process for both MPAs and other
area-based (and non-area-based) management measures. Whatever
model is chosen, as the ILBI negotiations unfold, we have a unique
opportunity to build on past experience while resolving issues with
UNCLOS, including overcoming governance fragmentation [11].
This paper examines the potential for ABMTs, in particular MPAs,
on the high seas, focusing on implementation challenges they are likely
to face. Drawing on the previous experiences of CCAMLR and OSPAR
HSMPAs, as well as regional approaches to designing networks of MPAs
closer to shore (e.g. the UK Marine Conservation Zone (MCZ) process),
three key aspects are examined in more detail below: (1) improving the
evidence basis for protecting biodiversity beyond national jurisdiction
(BBNJ), (2) designing effective compliance and enforcement mechan-
isms, and (3) engaging adequately with relevant stakeholders.
1.2. CCAMLR MPAs
The Convention on the Conservation of Antarctic Marine Living
Resources (CCAMLR) is part of the Antarctic Treaty System (ATS) and
governs marine resource conservation in the Southern Ocean sur-
rounding Antarctica, approximately 10% of the Earth's ocean area [12].
Under the ATS, claims on Antarctica and its surrounding waters are
“frozen”, thus the marine area encompassed by CCAMLR is considered
ABNJ (although it does extend north in places, beyond the ATS area,
which is limited to 60 degrees South latitude). There are currently 25
State Members
10
to the Convention.
CCAMLR does not have a formal definition of an MPA, but rather
refers to the idea as “a marine area that provides protection for all or
part of the natural resource it contains. Within an MPA certain activities
are limited, or entirely prohibited, to meet specific conservation, ha-
bitat protection, ecosystem monitoring or fisheries management ob-
jectives”[12].Indefining MPAs, CCAMLR distinguishes between no-
take areas, in which no fishing is allowed, and multi-purpose areas
which may allow some fishing, research, or other human activities.
MPAs are included within CCAMLR's approach to marine spatial pro-
tection as a tool among others, such as fishing limits and gear restric-
tions. The 1991 Madrid Protocol to the AT provides for the creation of
two types of protected areas, Antarctic Specially Protected Areas
(ASPAs) and Antarctic Specially Managed Areas (ASMAs). There are
currently 10 APSAs which are marine or partly marine, and three partly
marine ASMAs [13].
Following years of dialogue on the need for MPAs, in 2011 CCAMLR
adopted a legally-binding Conservation Measure on establishing
CCAMLR MPAs [14]. This measure calls for CCAMLR MPAs to be es-
tablished based on the “best available scientific evidence”and aimed at
achieving the following objectives: (i) to protect representative ex-
amples of marine ecosystems, biodiversity and habitats at an appro-
priate scale to maintain their viability and integrity in the long term; (ii)
to protect key ecosystem processes, habitats and species, including
populations and life-history stages; (iii) to establish scientific reference
areas for monitoring natural variability and long-term change or for
monitoring the effects of harvesting and other human activities on
Antarctic marine living resources and on the ecosystems of which they
form part; (iv) to protect areas vulnerable to impact by human activ-
ities, including unique, rare, or highly biodiverse habitats and features;
(v) to protect features critical to the function of local ecosystems; and
(vi) to protect areas to maintain resilience or the ability to adapt to the
effects of climate change [14]. Several MPA proposals have been put
forward, however most have been unsuccessful due to some States’
political agendas and fishing interests in the Southern Ocean.
In 2009, CCAMLR established the world's first High Seas MPA
around the South Orkney Islands. It is entirely no-take, and was ac-
cepted by CCAMLR members without significant conflict, due to there
being no impact on fisheries within the area set aside, however it ap-
pears that a nearby biologically rich area was left out so as not to in-
terfere with the krill fishing industry, which calls into question the
functional importance of this MPA [15]. Further, it has been cited as
example of going after “low hanging fruit”[15]. The indentation in the
north-western portion of the MPA was removed to placate States with
an interest in crab fishing in the area, which has not been realized on a
commercial scale [16,17]. Nevertheless, it set a precedent in a region
with a history of political tension, where there have been concerns
about MPAs in the CCAMLR area serving as a potential ocean grab,
aimed at extending sovereign claims to Antarctic territory [15]; States
have been arguing about this point, and whether CCAMLR even allows
for the establishment of MPAs (prior to the adoption of the 2011
Conservation Measure).
More recently, and following several attempts and revised propo-
sals, the Ross Sea region MPA was established in 2016. Following ne-
gotiations and compromise the final MPA was reduced in area by 40%,
and approximately 72% of its 1.55 million km
2
is closed to fishing [15].
In addition to no-take areas (General Protection Zones), it includes a
Special Research Zone and a Krill Research Zone, both of which allow
limited fishing. Two additional important compromises in the desig-
nation of this area included the opening of Patagonian toothfish fishing
areas outside of the MPA that had previously been closed (i.e. displa-
cing the fishery outside of the MPA), and reducing the proposed time-
frame for the MPA from 50 to 35 years, with provisions for periodic
review/revision [15].
1.3. OSPAR MPAs
The OSPAR Convention
11
is a regional environmental agreement
covering the North-East Atlantic, encompassing five regions: Arctic
Waters, the North Sea, Celtic Seas, the Bay of Biscay and Iberian Coat,
10
CCAMLR Members as of July 2018: Argentina, Australia, Belgium, Brazil,
Chile, China, EU, France, Germany, India, Italy, Japan, Republic of Korea,
Namibia, New Zealand, Norway, Poland, Russian Federation, South Africa,
Spain, Sweden, Ukraine, UK, USA, and Uruguay.
11
OSPAR Parties include the EU plus Belgium, Denmark, Finland France,
Germany, Iceland, Ireland, Luxembourg, The Netherlands, Norway, Portugal,
Spain, Sweden, Switzerland, and the U.K.
E.M. De Santo Marine Policy 97 (2018) 34–43
37
and the Wider Atlantic (the Arctic and wider Atlantic regions include
ABNJ). With roots in pollution prevention, the Convention has ex-
panded its remit to include other environmental issues, but it does not
address fishing or maritime transport, nor does it have competence over
mineral extraction in the Wider Atlantic. Rather, the OSPAR Commis-
sion cooperates with the relevant bodies for these issues, the North-East
Atlantic Fisheries Commission (NEAFC), the IMO, and the ISA. It is
worth noting that OSPAR Maritime Area and NEAFC Regulatory Area
overlap geographically (with the exception of some areas in the Barents
Sea under Russian jurisdiction, which are not covered by OSPAR
12
).
There is also some institutional overlap with respect to both OSPAR and
NEAFC's efforts to protect marine ecosystems in ABNJ; both have pro-
ceeded with adopting measures to protect vulnerable marine ecosys-
tems, including in the Wider Atlantic subregion. However, while
OSPAR uses the term MPAs (defined below), NEAFC refers to “closed
areas”, as these spaces are closed only to bottom-fishing, on the basis of
having been identified as Vulnerable Marine Ecosystems in accordance
with FAO guidelines [18].
OSPAR broadly defines MPAs as “areas for which protective, con-
servation, restorative or precautionary measures have been instituted
for the purpose of protecting or conserving species, habitats, ecosystems
or ecological processes of the marine environment”[19]. The mo-
mentum towards designating a network of MPAs within the OSPAR
area began in 1998, with the adoption of the Sintra Ministerial State-
ment, which committed the Commission to promote the establishment
of a network of MPAs “to ensure the sustainable use, protection and
conservation of marine biological diversity and its ecosystems.”This
process has continued, with shifting targets (i.e. the initial 2010
deadline for a network was moved forward to 2012–2016). The aims of
the OSPAR MPA Network are threefold: (1) to protect, conserve and
restore species, habitats and ecological processes which have been ad-
versely affected by human activities; (2) to prevent degradation of, and
damage to, species, habitats and ecological processes, following the
precautionary principle; and (3) to protect and conserve areas that best
represent the range of species, habitats and ecological processes in the
maritime area [20]. As they currently stand, the network targets are: (1)
by 2012, to be ecologically coherent, to include sites representative of
all biogeographic regions in the OSPAR Maritime Area, and to be
consistent with the CBD target for effectively conserved marine and
coastal ecological regions; and (2) by 2016, to be well-managed (i.e.
coherent management measures have been set up and are being im-
plemented for such MPAs that have been designated up to 2010) [20].
As of October 2016, the OSPAR MPA Network included 448 MPAs, 7
of which are located beyond national jurisdiction (see Table 1). The
entire network covers 806,472 km
2
, or 5.9% of the OSPAR Maritime
Areas [20]. Proportionately, the greatest MPA coverage is within the
subregion comprising the Greater North Sea, and the lowest is in the
Arctic Waters subregion (see Table 2). The Wider Atlantic is the largest
OSPAR region, 8.3% of which is now within MPAs. However, despite
this significant progress, the OSPAR MPA network is not yet considered
to be ecologically coherent [21].
As mentioned above, NEAFC has also established closed areas in the
high seas portion of the North-East Atlantic. This process has run in
parallel with the OSPAR MPA network, and in 2008 a Memorandum of
Understanding (MOU
13
) was adopted to address the institutional
overlap between OSPAR and NEAFC, emphasizing the complimentary
yet separate competencies and responsibilities of the two organizations
(environmental protection in the case of OSPAR and fisheries man-
agement for NEAFC). NEAFC began closing areas on a precautionary
basis in 2004, and the process has run somewhat in parallel, but
without coordination between the two institutions, resulting in only
partially overlapping MPAs [15,22]. The effort toward coordination
begun in 2008 (referred to as the “Madeira Process”) continued with
subsequent meetings in 2010 and 2012 and has resulted in an initial
Collective Arrangement between OSPAR and NEAFC in 2014 [23,24].It
does not yet include the ISA or IMO (despite efforts to do so), but it is
hoped that these and other relevant organizations will participate in the
future, so as to include all human uses in the North-East Atlantic. The
Collective Arrangement intends to facilitate cooperation and co-
ordination between OSPAR and NEAFC, including sharing information
and avoiding undermining one another's conservation and management
measures [23]. The organizations observe one another's meetings,
provide written notifications, and maintain a joint overview of areas
that are subject to special measures, including having joint meetings to
discuss issues relevant to these areas [23]. The ISA has participated in
formal meetings under the Collective Agreement, despite not yet being
a formal participant, and there is some potential for both the ISA and
IMO and perhaps other international organizations to join.
2. Improving the evidence basis for protecting BBNJ
ABMTs and MPAs are not an antidote to all environmental threats,
especially external and/or exogenic pressures such as climate change.
Johnson et al. [1] estimate that nearly all
14
high seas ABMTs and MPAs
in the North-East Atlantic are likely to experience climate change im-
pacts in the next 20–50 years. Even for endogenic threats originating
within the area, spatial approaches are not always the best approach,
especially for highly mobile/migratory species [25]. ABMTs and MPAs
can be effective tools for fisheries management, but are often im-
plemented when other approaches have failed, rather than as part of a
suite of tools. In addition, RFMOs have generally been slow to follow
the advice of their science advisory bodies with respect to closures,
either ignoring recommendations or implementing closures that do not
fully meet the scientific advice [26]. There are two key concerns worth
unpacking with regard to how science will inform the implementation
of ABMTs and MPAs in ABNJ: the structure and function of scientific
advisory committees, and the standards of evidence used.
2.1. Science advisory committees and evidence-based decision-making
The relationship between science advice and political decision-
making is increasingly important, and affected by several factors, ran-
ging from the complexity of the issue itself, to the background/
knowledge of the expert and/or their employer, as well as the political
context of the issue itself and any bias/agendas on either side of the
science-policy interface [27–30]. Other factors also influence how well
science advisors inform decision-makers, including whether the latter
are even receptive to the information and/or understand it appro-
priately, i.e. whether it is pitched at the right level and accessible.
Table 2
OSPAR MPA coverage by region (adapted from [20]).
OSPAR Region Total Area of Region
(km
2
)
Area in MPAs
(km
2
)
I. Arctic Waters 5,529,716 107,109 (1.9%)
II. Greater North Sea 766,624 112,968 (14.7%)
III. Celtic Seas 366,459 27,795 (7.6%)
IV. Bay of Biscay and Iberian
Coast
539,153 32,076 (5.9%)
V. Wider Atlantic (beyond
national jurisdiction)
6,346,159 526,525 (8.3%)
TOTAL 13,548,111 806,472 (5.9%)
12
With the exception of Russia, NEAFC and OSPAR have the same mem-
bership.
13
For a full listing of OSPAR MOUs with other organizations, see: https://
www.ospar.org/about/international-cooperation/memoranda-of-
understanding (accessed 4/26/18).
14
Excluding areas designated to protect hydrothermal vents.
E.M. De Santo Marine Policy 97 (2018) 34–43
38
Science advisors themselves are often put in a difficult position, espe-
cially when the information they are assessing is incomplete and/or
mixed with policy/politics [31], i.e. it may have implications that make
it impossible for advisors to be truly neutral in their recommendations
[32]. In addition, successful science-based policy requires the inclusion
of perspectives beyond science alone, such as resource managers and
interest groups [33], and thus some transparency and public partici-
pation is necessary; this issue is further explored below.
Examining CCAMLR and OSPAR as possible models, the structure
and function of science advice in these cases is complex. As is often the
case in marine science advisory panels, both of these approaches are
primarily focused on natural science, i.e. they lack a wider range of
expertise, with participation from social scientists (i.e. economists,
political scientists, geographers, and sociologists), who could provide a
wider breadth perspectives on human uses of the oceans that are ne-
cessary for designing effective conservation measures [27]. CCAMLR
has a Scientific Committee that takes into account research from in-
dividual CCAMLR Members, and it also has several programs of its own
that collect data relevant to environmental management. These
Working Groups focus on: (i) ecosystem monitoring and management;
(ii) fish stock assessment; (iii) statistics, assessments, and modelling;
(iv) incidental mortality associated with fishing; and (v) acoustics,
survey and analysis methods. The first three meet annually, the last two
met at the Scientific Committee's request. The Scientific Committee it-
self is currently comprised of one member from each of the 25 CCAMLR
Member States.
15
Regarding science advice for decision-making in the North-East
Atlantic, ICES
16
provides scientific advice to both OSPAR and NEAFC,
as well as their government members. OSPAR and ICES have a MOU
(initiated in 1995 and updated and renewed in 2006), indicating inter
alia that the two organizations have a Coordinated Environmental
Monitoring Programme (CEMP) under the OSPAR Joint Assessment and
Monitoring Programme (JAMP), wherein ICES serves as the data center,
and OSPAR cooperates with ICES on appraising data submitted by
Contracting Parties. The two organizations are also invited to send
observers to one another's meetings and to share documents and re-
ports. However it is worth noting that this MOU predates the bulk of the
MPA related activity in the North-East Atlantic, and it may therefore
require updating in light of the developing ILBI. In addition to this
advice, OSPAR also manages its own Committees that compile data on:
biological diversity and ecosystems, environmental impacts of human
activities, hazardous substances and eutrophication, offshore industry,
and radioactive substances. According to the MOU, the Committee
findings form the basis for consultations between the Secretariats of
OSPAR and ICES. The consultations address scientific information and
advice to be provided, and data activities to be undertaken, in the
following calendar year. Again, while these cooperative efforts bode
well for regional approaches to inform the development of an ILBI,
additional science needs to be included, encompassing human uses,
motivations, and governance considerations.
In addition to the structure of science advice, it is also worth re-
flecting on the scientific basis for designating ABMTs and MPAs in
ABNJ, as two approaches with different criteria have developed in the
same timeframe, over the past decade. The Vulnerable Marine
Ecosystem (VME) concept underpins the designation of closures under
Regional Fisheries Management Organizations (RFMOs), including
NEAFC and CCAMLR, and aims to protect groups of species, commu-
nities or habitats that may be vulnerable to impacts from fishing im-
pacts. The UN Convention on Biological Diversity (CBD) is also con-
tributing to the scientific basis for protecting areas, identifying
Ecologically and Biologically Significant Areas (EBSAs) that may con-
tribute to spatially-based approaches to protecting marine ecosystems
[34]. This approach has been informing national networks of MPAs
within EEZs, as well as UN Regional Environmental Programmes, in-
cluding the Mediterranean Action Plan (which includes high seas
areas).
As set out in the report of the Preparatory Committee [35], the
suggested criteria for identifying areas include several that overlap with
EBSA criteria, as well as a few additions. EBSA criteria included in this
list include: uniqueness; rarity; special importance for the life history
stages of species; importance for threatened, endangered, or declining
species and/or habitats; vulnerability, fragility, sensitivity
17
; biological
productivity; biological diversity; and naturalness. Additional criteria
include: representativeness; dependency; connectivity; ecological pro-
cesses; and economic and social factors. It will be interesting to see how
economic and social factors are included in a scientific assessment
based on ecological criteria, and what factors are included.
The additional criteria beyond EBSAs have potential to protect
ecosystems from new and developing threats to these areas and eco-
systems, including deep sea mining for minerals and the extraction of
marine genetic resources. This would work particularly well if the in-
ternational community would agree to integrate a more formal and
explicit operationalization of the precautionary principle
18
into the
criteria for MPAs in ABNJ; the Preparatory Committee report [35] does
refer to it, among several other principles for possible inclusion in the
ILBI. Implementing a truly precautionary approach to managing an-
thropogenic activities in ABNJ is critical for protecting not only vul-
nerable and rare species and ecosystems, but also preserving those yet
to be discovered. All too often, the precautionary principle has been
misinterpreted in environmental contexts, such that damage must occur
before it kicks in, particularly in offshore marine contexts [36].
3. Designing effective management and compliance/enforcement
mechanisms
Assessing environmental regime effectiveness is complex and mul-
tidimensional [37], however two key aspects include compliance (e.g.
actor behavior) and results (e.g. environmental improvement), which
may be independent of one another, but both are necessary [38].
Compliance can take many forms along a spectrum, from spontaneous
compliance on one end, to induced on the other, to facilitated regime-
enabled compliance in the middle –and, as is the case with many en-
vironmental issues, whether and how compliance is achieved also de-
pends upon the ease of overcoming both individual and social/institu-
tional barriers [39]. International organizations can help facilitate
compliance, and if protecting ABNJ were a new issue area, it might be
appropriate to suggest how a new organization could be designed to
help the regime achieve its objectives.
While it can be argued there is little appetite in the international
community for creating an entirely new international organization to
govern the high seas [8], existing relevant bodies are already heavily
taxed with their respective areas of work, i.e. the aforementioned
15
As of July 2018, only 23 out of 25 Members have representatives on the
Scientific Committee, with Brazil and India the exceptions. For a current listing
of Scientific Committee representatives, see: https://www.ccamlr.org/en/
science/scientific-committee-representatives (accessed 7/26/18).
16
The International Council for the Exploration of the Sea (ICES) is an in-
ternational organization that develops science and provides advice to support
the sustainable use of the oceans. It brings together over 5000 scientists to
provides advice to its 20 member countries: Belgium, Canada, Denmark,
Estonia, Finland, France, Germany, Iceland, Ireland, Latvia, Lithuania, the
Netherlands, Norway, Poland, Portugal, Russian Federation, Spain, Sweden, the
UK and the USA.
17
NB: the EBSA criteria for vulnerability, fragility and sensitivity also in-
cludes slow recovery, not listed here.
18
The Precautionary Principle, codified in the 1992 Rio Declaration, states
that “where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation”(Principle 15).
E.M. De Santo Marine Policy 97 (2018) 34–43
39
RFMOs and Regional Seas Conventions, the IMO, ISA, and the branch of
the UN that oversees UNCLOS (the Division for Ocean Affairs and the
Law of the Sea (DOALOS)). If it is decided that a new overarching
mechanism is to be implemented for protecting BBNJ, it could be
structured on a Convention model, and follow the approach of the
Convention on Biological Diversity, with close linkages to advisory
commissions (i.e., legal, scientific, technical), and a decision-making
body (e.g. a Conference of Parties (COP) mechanism). Alternatively, as
noted earlier [10], a broader framework approach for integrating spa-
tial planning and management could be less taxing on the international
community, if it harnesses existing momentum and regional/sectoral
approaches. However that would require said momentum to continue
without the top-down pressure provided by a Convention and COP
mechanism.
While international organizations can help with encouraging com-
pliance and with monitoring how well an environmental agreement is
working (depending on the resources at their disposal), compromises
are often made as well, in order to keep States at the table. This point is
particularly important with respect to the politics of managing marine
living resources, for instance the pace at which RFMOs act to imple-
ment evidence-based closures and/or a precautionary approach when
under political pressure [40], and how the International Whaling
Commission has struggled with scientific uncertainty and continues to
allow Japan, Iceland, and Norway to whale under reservation to the
Convention and/or through scientific whaling loopholes, despite a
whaling moratorium and tremendous international pressure [41]. The
alternative, that nations may leave the organization and harvest re-
sources at will, is unacceptable.
In addition, how can we counteract the freedom of the seas?
Conservation measures in ABNJ are not automatically binding on third
states without their consent –as mentioned earlier, MOUs and agree-
ments facilitated cooperation between RFMOs and regional environ-
mental agreements. The same is true for non-parties to these instru-
ments who are active in the region. Therefore, if a new unified
mechanism is not created, a myriad of bilateral agreements will be
necessary. Cooperation between NEAFC and OSPAR already exists in
the water column, and between OSPAR and the ISA on the seabed, but
this will need to be harmonized throughout the oceans, and in many
places there are gaps and weakly implemented/monitored regions.
However, in the Sargasso Sea region offthe east coast of the US, the
Sargasso Sea Alliance Initiative has demonstrated the voluntary will
between the Bermuda government and a range of scientists, interna-
tional organizations, and private donors, to collaborate on research and
conservation in the high seas. This partnership has led to the Sargasso
Sea being described as an EBSA under the CBD [42] and it has potential
to be designated a HSMPA.
Focusing on measures currently in place, and drawing on the cases
examined earlier, two key points relevant to implementing MPAs in
ABNJ are important to consider: how/whether these sites are desig-
nated with clear management plans, and how/what technology exists to
help enforce them.
3.1. Management plans
The most glaring omission in the cases outlined above is a general
lack of management plans. Inshore OSPAR MPAs (i.e. within national
jurisdiction) are better protected than the high seas sites, as many of
these are also part of the Natura 2000 network and monitored under
domestic legislation implementing the EU Habitats and Birds
Directives. Even where OSPAR management plans do not yet exist,
Member States are required to implement measures in the interim,
under the EU Directives. According to a 2016 survey of OSPAR
Contracting Parties [20] there is a lot of uncertainty surrounding
whether and how well conservation measures are working in OSPAR
MPAs. These data are qualified by poor response rates (ranging from
20% to 27% on each question), however they show that among the
majority of self-reporting Contracting Parties, MPA measures are only
“partially”being implemented (54%), and monitoring is only “par-
tially”taking place (46%).
The CCAMLR South Orkney Islands MPA was also designated
without a management plan or research and monitoring plans; it relies
on research and monitoring undertaken via Conservation Measure
91–03 from 2009 and a 2014 MPA Report.
19
The latter sets out the
MPA's objectives and summarizes research and monitoring in the re-
gion, as well as assesses the effects of fishing activities on biodiversity in
the MPA. The UK submitted a draft research and monitoring plan to
CCAMLR in 2014, but it has not yet received consensus support from
other members [16]. In contrast, Ross Sea MPA proposals (2012–2015)
included a brief management plan, and there is currently a research and
monitoring plan under review, proposed in the fall of 2017.
Unfortunately, it is not unusual for MPAs to be designated without
clear management plans in place, this is not just an issue for high seas
management. For example, during the design and implementation of a
network of Marine Conservation Zones (MCZs) throughout its EEZ, the
UK proceeded with designating sites without having management
measures in place or even on the table for stakeholders to examine [43].
However, a post-facto approach to management makes it difficult for
those involved in deciding where and how much to protect without
knowing what activities will be restricted. While securing sites first and
then designing management measures later allows for some flexibility,
it can also lead to sites not being adequately protected. In the UK MCZ
example, none of the sites implemented to date are completely no-take,
off-limits to resource extraction. If the parties involved in selecting sites
for the network had known this would be the case from the start, it may
have affected their decision-making with respect to site locations and
boundaries/sizes [27,43].
This is an important issue that needs to be decided prior to the
development of a regime for MPAs and ABMTs in ABNJ: should we
select areas first and then design management measures later? Or
should possible restrictions and management measures be part of the
decision for where/what to conserve? It is not an easy decision, and
many would argue that the first approach is preferable, allowing
compromise later. However, both the EU and the Least Developed
Countries (LDCs) coalition have expressed support for including man-
agement plans in ABMT proposals at the PrepCom meetings. A com-
promise could involve implementing emergency short-term mor-
atorium measures, such as was done with the Darwin Mounds area of
cold water coral on the UK continental shelf, i.e. an emergency closure
under the Common Fisheries Policy which was then replaced by per-
manent measures under the Habitats Directive [36,44]. A temporary
moratorium can also test out a management strategy, before it is im-
plemented more stringently. It would be prudent for the ILBI to have
such a precautionary measure built into it, if it is not possible to si-
multaneously designate MPAs and draft management plans.
3.2. New technologies
Currently the high seas are surveyed with the use of satellite tech-
nology and boat and plane patrols. RFMOs work closely with member
governments to compile data and monitor ships, and in regions like the
North-East Atlantic, where there is geographic overlap between NEAFC
and OSPAR, this approach is effective for policing both agreements.
However, OSPAR on its own lacks enforcement mechanisms, neither for
Contracting Parties nor for third States [45].
Monitoring fishing vessels occurs both collaboratively, using Vessel
Monitoring System (VMS) and Automatic Identification System (AIS)
satellite tracking on board ships, and non-collaboratively, via optical or
19
Conservation Measure 91–03 (2009), see: https://www.ccamlr.org/en/
measure-91–03-2009) and an MPA Report (2014) from CAMLR XXXIII (see:
https://www.ccamlr.org/en/sc-camlr-xxxiii/bg/19) (both accessed 7/23/18).
E.M. De Santo Marine Policy 97 (2018) 34–43
40
radar satellites. There is need for both approaches due to widespread
illegal, unregulated, and unreported (IUU) fishing, as well as linkages
between IUU fishing and organized crime and drugs. In addition to
these traditional approaches, there are new technologies being devel-
oped, including using drones both in the air and under water, artificial
intelligence, on-board cameras (not a new approach, but hopefully
improved), and even smartphones [46].
Recently, new surveillance technology has been an important con-
sideration when designating large, remote MPAs. The “Eyes in the Sky”
satellite-based approach, supported by the Bertarelli Foundation, Pew
Environment Group, and a UK satellite company, was launched with the
designation of a large MPA surrounding the UK Pitcairn Islands over-
seas territory. This technology is part of a larger Project Eyes on the
Seas, that merges four sources of information: (i) data from AIS and
VMS; (ii) satellite imagery, including synthetic aperture radar, optical
imaging, and thermal imaging; (iii) data from RFMOs, including vessel
histories, fishing boundaries, marine reserve boundaries, and other in-
formation; and (iv) automation, including alerts to users when
anomalies are detected (such as a vessel entering an EEZ or a no-take
MPA, or when an AIS system is suddenly turned off)[46].
AIS data is also being used by a partnership between Oceana,
SkyTruth, and Google, called “Global Fishing Watch”, which was
launched to monitor fishing vessel activity within another large, remote
MPA, the Phoenix Islands Protected Area in Kiribati. A third new sa-
tellite program, “DigitalGlobe”, still under development, will use the
company's own satellites to provide visual evidence of infractions, to
aid prosecution efforts in remote waters [47]. As evidenced by these
examples, the technological surveillance playing field is developing
quickly, and may be beneficial for monitoring and enforcing MPAs in
ABNJ, provided the legal requirements and pathways for prosecution
are clear. Capacity building and technology transfer are also important
factors to ensure developing countries are able to monitor, control, and
survey their EEZs [48].
4. Engaging adequately with relevant stakeholders
One final issue that warrants consideration for implementing MPAs
and ABMTs in ABNJ, is the degree to which stakeholders are engaged in
the process. This is an important topic in environmental management,
with an extensive scholarship that points to a lack of public engagement
often leading to policy failure [49–51]. Best practices include starting
the process of public engagement as early as possible, with clear ob-
jectives from the outset, excellent facilitation, underpinned by strong
and interdisciplinary science (i.e both natural and social), and the
process must also be institutionalized, i.e. embedded in policy [49].
Rights to participation and decision-making have been enshrined in the
2001 Aarhus Convention on Access to Information, Public Participation
in Decision-making, and Access to Justice in Environmental Matters,
but this Convention is fairly weak legally. Additionally, it falls within
the auspices of the UN Economic Commission for Europe (UNECE), and
its membership is limited to European countries and some of the former
Soviet bloc.
In MPAs, the challenge often comes down to ensuring all relevant
sectors and participants are not just informed about where an MPA will
be designated, but actively involved in the decision-making about what
and where to protect. To date, this approach has been implemented
within EEZs, but as MPAs move further offshore, it is important to
consider how to best harness stakeholder engagement and awareness,
in order to legitimize the process and also help ensure its efficacy vis-à-
vis biodiversity conservation objectives.
4.1. Transparency and participation build legitimacy
The Preparatory Committee report [35] includes a list of general
principles and approaches that may be included in the text of the ILBI,
including inter alia relevant stakeholder engagement; public
participation; and transparency and availability of information –all
factors in line with the aforementioned Aarhus Convention and which
are widely regarded as critical to successful environmental governance.
However, if these principles are operationalized in the ILBI, it will be
important to follow-through and ensure that high seas MPAs learn
lessons from experiences with similar aims.
One recent example of MPA planning with a strong focus on sta-
keholder participation is the aforementioned UK MCZ process that
unfolded in 2009–2011 and is still ongoing with respect to actual site
designations. This process, modeled largely on an earlier regional MPA
network approach in Californian state waters, aimed to create a sta-
keholder-driven network of MCZs throughout the UK's EEZ, including
no-take Reference Areas. Both the Californian and UK processes in-
volved extensive partnership and collaboration with a range of stake-
holders, who were directly involved in site selection proposals.
Unfortunately, due to political and economic considerations, as well as
problems with interpreting the scientific evidence underpinning the
sites, the UK MCZ network has not yet been completed (and does not
include any of the recommended Reference Areas, or no-take zones),
and consequently a great deal of public trust and social capital has been
lost [43]. Unpacking stakeholder perceptions of the process, a few
problems are obvious in hindsight, namely a lack of clear objectives for
how these sites would be managed (i.e. having a sense of management
plans and what activities would be restricted), a lack of transparency in
the process (i.e. decisions were taken behind closed doors), and a lack
of communication and access to information throughout (i.e. updates to
the stakeholder community were limited and their expectations were
not managed appropriately) [43].
While MPAs in ABNJ are “out of sight, out of mind”to most of the
public, there is an opportunity to harness public concern for common
resources –not just marine living resources, but also the minerals and
precious metals that will be mined in The Area, as well as marine ge-
netic resources. It will be important to ensure that the regime for the
latter (marine genetic resources) is in line with the CBD Nagoya
Protocol on Access and Benefit Sharing
20
(ABS); whether and how these
provisions will be implemented in ABNJ has not been determined.
However, if the contentious sessions on ABS within the CBD COPs are
anything to go by, it will be challenging for the new regime to de-
termine how to share common resources equitably across the world.
The ISA and RFMOs in general have faced critiques with respect to
transparency and participation. As it currently stands, their meetings
are not very visible and do not garner the same amount of media and
NGO engagement as the CBD or other global forums. With respect to
accountability for deep-sea mining, managed by the ISA, a recent
analysis [52] recommends six areas of good transparency practice that
the ISA will need to better operationalize in order to improve their
accountability: (i) access to information; (ii) reporting; (iii) quality as-
surance; (iv) compliance information; (v) public participation; and (vi)
ability to review/appeal decisions. For RFMOs, a recent survey-based
comparative analysis of 11 organizations examined a range of questions
falling within three categories: (i) access to full, up-to-date and accurate
information; (ii) public participation in decision-making; and (iii) ac-
cess to outcomes [53]. This study concluded that with respect to
transparency, no single RFMO is doing particularly well or failing
spectacularly, rather most have some room for improvement. However,
this analysis focused on the organizations themselves and was based on
a self-reporting survey; future research on RFMO transparency should
compare these outcomes with perceptions of the scientific community,
users, and other stakeholders, and assess what improvements are
needed from the other side.
As a new regime for protecting BBNJ develops, and as ABMTs and
MPAs are debated and designated, it will be critical for the RFMOs and
20
The Nagoya Protocol on Access to Genetic Resources and the Fair and
equitable Sharing of Benefits Arising from their Utilization (2010).
E.M. De Santo Marine Policy 97 (2018) 34–43
41
other organizations to be more accessible and transparent, as well as
make information readily available to a broad audience beyond users.
These areas and the resources they contain, both unique and rare bio-
logical and ecological features, as well as mineral resources, belong to
the Common Heritage of Mankind, in the last true frontier on the
planet.
5. Conclusions and recommendations
It is critical to learn from regional experiences to date with im-
plementing ABMTs and MPAs in ABNJ as we develop a new ILBI.
Building on RFMO and regional environmental protection experiences
and utilizing existing networks of states and non-state actors will be
critical, but we must be careful not to grandfather in or replicate ex-
isting flaws. Four key recommendations can be drawn from examples
with CCAMLR, OSPAR, and regional MPA network planning discussed
in this paper:
(1) High Seas MPAs should be stronger than existing RFMO closures,
include both the water column and seabed, and include sites that
are completely off-limits to human use.
(2) Clearer pathways for science advice in the process should be
identified, ensuring the evidence-base for closures is sound, ade-
quate, and precautionary in nature. In addition, social science must
be included in the science advisory process from the start.
(3) Consideration of management plans should be included in ABMT
and MPA planning from the start, including clear monitoring and
enforcement plans, linked to new technologies, and with greater
transparency. In cases where this is not possible, emergency closure
measures should be an interim option.
(4) Equitable and transparent stakeholder engagement and participa-
tion should be implemented in the design and designation of
ABMTs and MPAs, including a wide range of user communities as
well as the scientific community and general public.
Lessons learned from the cases examined above include the ne-
cessity of avoiding a network of “paper parks”on the high seas. In the
North-East Atlantic, geographical overlap between an RFMO and the
regional environmental OSPAR Convention is beneficial, encouraging
efficient management and surveillance, as well as adequate precaution
in the decisions regarding where and what to protect. However, such
geographic overlap is the exception rather than the rule on the high
seas.
Given the currently fragmented approach to ocean governance, it
will be important to decide early on in the ILBI process whether we
should rely solely upon existing regional approaches to ocean man-
agement, or create a new global scientific body to harmonize MPA
implementation. While it is tempting to choose the latter option, this
would only work if carefully designed to be politically highly influen-
tial, which opens up several interesting questions about the architecture
of science-policy advice when governing areas of the planet with high
degrees of scientific uncertainty and enforcement challenges.
Nevertheless, it is still important to build on regional lessons and im-
prove on them, as a stepping stone towards global marine governance.
Clearly, there will be a lot of “learning by doing”over the coming years,
but there are also many lessons to be drawn from experiences with
ocean governance to date, that will hopefully inform the ongoing pro-
cess.
Acknowledgements
The author gratefully acknowledges feedback from two anonymous
reviewers. A preliminary version of this paper was presented at the
2017 International Studies Association annual conference in San
Francisco, on a panel entitled “Ocean governance in the Anthropocene:
Critical perspectives on the emerging BBNJ regime.”Thanks to Oran
Young for chairing and to Frank Biermann for serving as discussant on
the panel and providing feedback. Funding for open access publishing
provided by the Franklin & Marshall College Library and Provost's
Office.
References
[1] D. Johnson, M.A. Ferreira, E. Kenchington, Climate change is likely to severely limit
the effectiveness of deep-sea ABMTs in the North Atlantic, Mar. Policy 87 (2018)
111–122.
[2] J. Day, N. Dudley, M. Hockings, G. Holmes, D. Laffoley, S. Stalton, S. Wells,
Guidelines for applying protected areas management categories to marine protected
areas, IUCN, Gland, Switzerland, 2012〈https://www.iucn.org/content/guidelines-
applying-protected-area-management-categories-0〉(accessed 26 April 2018).
[3] T. Agardy, G. Notarbartolo di Sciara, P. Christie, Mind the gap: addressing the
shortcomings of marine protected areas through large scale marine spatial plan-
ning, Mar. Policy 35 (2011) 226–232.
[4] J. Rochette, S. Unger, D. Herr, D. Johnson, T. Nakamura, T. Packeiser, A. Proelss,
M. Visbeck, A. Wright, D. Cebrian, The regional approach to the conservation and
sustainable use of marine biodiversity in areas beyond national jurisdiction, Mar.
Policy 49 (2014) 109–117.
[5] P. Drankier, Marine protected areas in areas beyond national jurisdiction, Int. J.
Mar. Coast. Law 27 (2012) 291–350.
[6] M. Lodge, D. Johnson, G. Le Gurun, M. Wengler, P. Weaver, V. Gunn, Seabed
mining: international Seabed Authority environmental management plan for the
Clarion-Clipperton Zone. A partnership approach, Mar. Policy 49 (2014) 66–72.
[7] D. Johnson, M.A. Ferreira, ISA Areas of Particular Environmental Interest in the
Clarion-Clipperton Fracture Zone: offsetting to fund scientific research, Int. J. Mar.
Coast. Law 30 (2015) 559–574.
[8] D. Tladi, The proposed implementing agreement: options for coherence and con-
sistency in the establishment of protected areas beyond national jurisdiction, Int. J.
Mar. Coast. Law 30 (2015) 654–673.
[9] E. Ostrom, J. Burger, C.B. Field, R.B. Norgaard, D. Policansky, Revisiting the
commons: local lessons, global challenges, Science 284 (1999) 278–282.
[10] E. Druel, K. Gjerde, Sustaining marine life beyond boundaries: options for an im-
plementing agreement for marine biodiversity beyond national jurisdiction under
the United Nations Convention on the Law of the Sea, Mar. Policy 49 (2014) 90–97.
[11] F. Biermann, P. Pattberg, H. van Asselt, F. Zelli, The fragmentation of global gov-
ernance architectures: a framework for analysis, Glob. Environ. Polit. 9 (4) (2009)
14–40.
[12] Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)
Website: Convention Area. 〈https://www.ccamlr.org/en/organisation/convention-
area〉(accessed 26 April 2018).
[13] CCAMLR. Conservation Measure 91-02 (2012) Protection of the values of Antarctic
Specially Managed and Protected Areas. Available online: 〈https://www.ccamlr.
org/node/77622/〉(accessed 26 April 2018), 2012.
[14] CCAMLR. Conservation Measure 91-04 (2011) General framework for the estab-
lishment of CCAMLR Marine Protected Areas. Available online: 〈https://www.
ccamlr.org/node/74905〉(accessed 26 April 2018), 2011.
[15] D. Smith, J. Jabour, MPAs in ABNJ: lessons from two high seas regimes, ICES J.
Mar. Sci. 75 (1) (2018) 417–425.
[16] L. Wenzel, N. Gilbert, L. Goldsworthy, C. Tesar, M. McConnell, M. Okter, Polar
opposites? Marine conservation tools and experiences in the changing Arctic and
Antarctic, Aquat. Conserv.: Mar. Freshw. Ecosyst. 26 suppl. 2 (2016) 61–84.
[17] C.M. Brooks, Competing values on the Antarctic high seas: ccamlr and the challenge
of marine protected areas, Polar J. 3 (2013) 277–300.
[18] Food and Agriculture Organization of the United Nations (FAO). The FAO inter-
national guidelines for the management of deep-sea fisheries in the High Seas.
Available online: 〈http://www.fao.org/fishery/topic/166308/en〉(accessed 26
April 2018).
[19] OSPAR Website: Marine Protected Areas. 〈https://www.ospar.org/work-areas/
bdc/marine-protected-areas〉. Accessed 3/4/ (accessed 26 April 2018), 2018.
[20] OSPAR Commission 2017 Status Report on the OSPAR Network of Marine Protected
Areas. Biodiversity and Ecosystems Series. Available online: 〈https://www.ospar.
org/documents?V=37521〉(accessed 26 April 2018), 2016.
[21] D. Johnson, J. Ardron, D. Billett, T. Hooper, T. Mullier, P. Chaniotis, B. Ponge,
E. Corcoran, When is a marine protected area network ecologically coherent? A case
study from the North-east Atlantic, Aquat. Conserv.: Mar. Fresh W. Ecosyst. 24
(Suppl.2) (2014) 44–58.
[22] I. Kvalvik, Managing institutional overlap in the protection of marine ecosystems on
the high seas. The case of the North East Atlantic, Ocean Coast. Manag. 56 (2012)
35–43.
[23] NEAFC and OSPAR. The process of forming a cooperative mechanism between
NEAFC and OSPAR. UNEP Regional Seas Reports and Studies No. 196. Available
online: 〈https://www.ospar.org/documents?V=35111〉(accessed 26 April 2018),
2015.
[24] K. Hoydal, D. Johnson, A.H. Hoel, Regional governance: the case of NEAFC and
OSPAR, in: S.M. Garcia, J. Rice, A. Charles (Eds.), Governance for Fisheries and
Marine Conservation: Interaction and co-evolution. Chapter 16 Wiley-Blackwell,
2014, pp. 225–238.
[25] M.J. Kaiser, Are marine protected areas a red herring or a fisheries panacea? Can. J.
Fish. Aquat. Sci. 62 (5) (2005) 1194–1199.
[26] G. Wright, J. Ardron, K. Gjerde, D. Currie, J. Rochette, Advancing marine biodi-
versity protection through regional fisheries management: a review of bottom
E.M. De Santo Marine Policy 97 (2018) 34–43
42
fisheries closures in areas beyond national jurisdiction, Mar. Policy 61 (2015)
134–148.
[27] E.M. De Santo, California dreaming: challenges posed by transposing science-based
marine protected area planning processes in different political contexts, Environ.
Sci. Policy 75 (2017) 38–46.
[28] E.M. De Santo, Whose science? Precaution and power-play in European marine
environmental decision-making, Mar. Policy 34 (2010) 414–420.
[29] G.E. Likens, The role of science in decision making: does evidence-based science
drive environmental policy? Front. Ecol. Environ. 8 (6) (2010) e1–e9.
[30] P. Spruijt, A.B. Knol, V. Vasileiadou, J. Devilee, E. Lebret, A.C. Petersen, Roles of
scientists as policy advisers on complex issues: a literature review, Environ. Sci.
Policy 40 (2014) 16–25.
[31] T. Polachek, Politics and independent scientific advice in RFMO processes: a case
study of crossing boundaries, Mar. Policy 36 (1) (2012) 132–141.
[32] S. Jasanoff, The Fifth Branch: Science Advisers as Policymakers, Harvard University
Press, Cambridge, 1990.
[33] E.A. Wolters, B.S. Steel, D. Lach, D. Kloepfer, What is the best available science? A
comparison of marine scientists, managers, and interest groups in the United States,
Ocean Coast. Manag. 122 (2016) 95–102.
[34] D.E. Johnson, C. Barrio Frojan, P.J. Turner, P. Weaver, V. Gunn, D.C. Dunn,
P. Halpin, N.J. Bax, P.K. Dunstan, Reviewing the EBSA process: improving on
success, Mar. Policy 88 (February 2018) (2018) 75–85.
[35] United Nations General Assembly. Report of the Preparatory Committee established
by General Assembly resolution 69/292: Development of an international legally
binding instrument under the United Nations Convention on the Law of the Sea on
the conservation and sustainable use of marine biological diversity of areas beyond
national jurisdiction. 31 July 2017, United Nations document A/AC.287/2017/PC.
4/2. Available online: 〈https://undocs.org/A/AC.287/2017/PC.4/2〉(accessed 14
July 2018), 2017.
[36] E.M. De Santo, P.J.S. Jones, Offshore marine conservation policies in the North East
Atlantic: emerging tensions and opportunities, Mar. Policy 31 (2007) 336–347.
[37] O. Young, International Governance: Protecting the Environment in a Stateless
Society, Cornell University Press, Ithaca, 1994.
[38] M. Peterson, International organizations and the implementation of environmental
regimes, in: O. Young (Ed.), Global Governance: Drawing Insights from the
Environmental Experience. Chapter 5 MIT Press, Cambridge, 1997.
[39] J. Blake, Overcoming the ‘value-action gap’in environmental policy: tensions be-
tween national policy and local experience, Local Environ. 4 (3) (1999) 257–278.
[40] G. Wright, J. Ardron, K. Gjerde, D. Currie, J. Rochette, Advancing marine biodi-
versity protection through regional fisheries management: a review of bottom
fisheries closures in areas beyond national jurisdiction, Mar. Policy 61 (2015)
134–148.
[41] M. Heazle, Scientific uncertainty and the International Whaling Commission: an
alternative perspective on the use of science in policy making, Mar. Policy 28
(2004) 361–374.
[42] D. Freestone, D. Johnson, J. Ardron, K.K. Morrison, S. Unger, Can existing in-
stitutions protect biodiversity in areas beyond national jurisdiction? Experiences
from two on-going processes, Mar. Policy 49 (2014) 167–175.
[43] E.M. De Santo, Assessing public “participation”in environmental decision-making:
lessons learned from the UK Marine Conservation Zone (MCZ) site selection process,
Mar. Policy 64 (2016) 91–101.
[44] E.M. De Santo, P.J.S. Jones, The Darwin Mounds: from undiscovered coral to the
emergence of an offshore marine protected area regime. Pages 147-156, in:
R.Y. George, S.D. Cains (Eds.), Conservation and adaptive management of seamount
and deep sea coral ecosystems. Bulletin of Marine Science, 81 Rosenstiel School of
Marine and Atmospheric Science, 2007.
[45] N. Matz-Lück, J. Fuchs, The impact of OSPAR on protected area management be-
yond national jurisdiction: effective regional cooperation or a network of paper
parks? Mar. Policy 49 (2014) 155–166.
[46] OECD 2017. Issue Paper: An inventory of new technologies in fisheries (Pierre
Girard, Maritime Survey and Thomas Du Payrat, Odyssée Development). Available
online: 〈https://www.oecd.org/greengrowth/GGSD_2017_Issue%20Paper_New
%20technologies%20in%20Fisheries_WEB.pdf〉(accessed 26 April 2018).
[47] MPA News. Building the future of MPA enforcement: Project Eyes on the Seas and
other high-tech surveillance programs. April-May 2016. Available online: 〈https://
mpanews.openchannels.org/news/mpa-news/building-future-mpa-enforcement-
project-eyes-seas-and-other-high-tech-surveillance〉(accessed 26 April 2018), 2016.
[48] D.C. Dunn, C. Jablonicky, G.O. Crespo, D.J. McCauley, D.A. Kroodsma, K. Boerder,
K.M. Gjerde, P.N. Halpin, Empowering high seas governance with satellite vessel
tracking data, Fish. Fish. 19 (4) (2017) 729–739.
[49] M.S. Reed, Stakeholder participation in environmental management: a literature
review, Biol. Conserv. 141 (2008) 2417–2431.
[50] S. Mackinson, D.C. Wilson, P. Galiay, B. Deas, Engaging stakeholders in fisheries
and marine research, Mar. Policy 35 (2011) 18–24.
[51] A. Newton, M. Elliott, A typology of stakeholders and guidelines for engagement in
transdisciplinary, participatory processes, Front. Mar. Sci. 16 (November 2016)
(2016), https://doi.org/10.3389/fmars.2016.00230.
[52] J.A. Ardron, H.A. Ruhl, D.O.B. Jones, Incorporating transparency into the govern-
ance of deep-seabed mining in the Area beyond national jurisdiction, Mar. Policy 89
(2018) 58–66.
[53] N.A. Clark, J.A. Ardron, L.H. Pendleton, Evaluating the basic elements of trans-
parency of regional fisheries management organizations, Mar. Policy 57 (2015)
158–166.
E.M. De Santo Marine Policy 97 (2018) 34–43
43
