A Regional Approachto Marine Environmental Protection: The "Regional Seas" Experience

L'approche régionale de préservation du milieu marin : l'expérience des "mers régionales"
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Article Index
Regional Seas Programmes and Initiatives
Examples of Institutional Structures for Regional…
Figure 2. Regional Governance: Overlaps in…
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While a global regulatory framework can establish common principles for managing the ocean, only specific local and regional measures can address the varied threats affecting diverse marine areas. Since the 1970s, regional arrangements to protect the ocean environment have arisen precisely to allow such differentiation.

At the Second United Nations Conference on the Law of the Sea in 1960, the Brazilian delegate made an observation to the effect that no two seas are identical and consequently, it is not easy - nor has it ever been - to resolve problems using a single universal solution. The question persists today: how can a single international convention or action plan simultaneously combat coral bleaching in the Philippines, regulate offshore drilling in the Arctic, preserve the monk seal in the Mediterranean, and manage the plastic trash vortex near the Hawaiian Islands? Even if a global framework can establish common management principles for seas and oceans, only specific measures can address the varied threats affecting diverse marine areas; regional approaches have arisen precisely to allow such differentiation.

Reflecting the development of the global framework, regional initiatives have taken multiple, fragmented and even overlapping forms. Following World War II, the Food and Agriculture Organization of the United Nations (FAO) pushed for the formation of regional fisheries management organizations (RFMOs), dedicated to managing - fish stocks in certain ocean areas. After the mid-1970s, the United Nations Environment Programme (UNEP) moved to protect marine areas through regional governance systems - our focus in this chapter. UNEP's Regional Seas Programmes multiplied in the Mediterranean, Baltic, East Asian and Pacific regions; they created a new scale for marine environmental management between the traditional national approach and an emerging global one. We will review the results of some regional-scale programmes, highlighting their benefits and the limits of regional versus other approaches, before discussing their future.

The Emergence and Distribution of Regional Seas Programmes

The "regionalization" of international environmental law has emerged as one of the most important legal events in recent years. An Action Plan developed at the 1972 United Nations Conference on the Human Environment (Stockholm Conference) first gave impetus to the regional approach to marine protection (UN 1972). It led to UNEP's Regional Seas Programme in 1974, which addressed both causes and consequences of marine degradation and proposed broad preventive management of marine and coastal regions (UNEP 1982). The 1982 adoption of the UN Convention on the Law of the Sea (UNCLOS), a global framework for managing marine areas and resources, complemented and encouraged UNEP's initiatives. UNCLOS stipulates that "States shall co-operate on a global basis and, as appropriate, on a regional basis....for the protection and preservation of the marine environment, taking into account characteristic regional features" (UNCLOS 1982, Article 197).

Since their launch in the 1970s, the Regional Seas Programme has proven highly successful, as evidenced by the more than one hundred member states participating in them. UNEP promoted and supported some initiatives, e.g. for the Mediterranean (1975), the Wider Caribbean (1981) and Western Indian Ocean (1985); other regional arrangements developed independently, such as those for the Baltic (1974), North-East Atlantic (1992) and Caspian (2003) regions (Fig 1). Some observers note two different philosophies underpinning the various programmes, depending on whether they take place within or outside the ambit of UNEP: the former often see "regional arrangements as a step towards global ones, as a way to make progress in global cooperation" while the latter may focus solely on more local concerns (Alhéritière 1982). However, whether or not UNEP drives the initiatives, we believe regional conservation programmes follow similar processes, applying and extending global-scale commitments.

UNEP traditionally promotes a framework convention and sectoral protocols - a classic agreement architecture. As a "cornerstone for action" (Dejeant-Pons 1987), the convention usually provides general terms and conditions and an overall direction for countries to follow. However important such principles may be, they remain insufficient, and parties must negotiate specific agreements to implement them in various domains. The Mediterranean, Western Indian Ocean, Wider Caribbean, West and Central African, and South-East Pacific Programmes followed this convention-plus-sectoral-protocols model. Other arrangements, such as the East Asian Programme, follow a different model, one based on action plans and specific activities. Since the 1970s, the topics for regional-scale protocols and actions have developed along lines paralleling global environmental protections (Bodansky 2010). These have gradually moved from fighting marine pollution by ships or land-based activities to encompass biodiversity conservation, via Marine Protected Areas in particular; more recently and in a still-limited way, they have taken on goals for sustainable development. The first step toward such an approach came with the 2008 adoption of the Mediterranean Protocol on Integrated Coastal Zone Management; it aims to conserve biodiversity while developing coastal economies.

The programmes' institutional structure varies from region to region, from "light" secretariats or Regional Coordinating Units (RCU) to more developed Regional Activity Centres (RAC) that fight land-based pollution, inventory threatened marine habitats, make environmental forecasts, and so forth. These structural differences affect the nature of regional arrangements, and depend on their age, levels of funding and cooperation, and the number of countries involved. Cooperation will prove more regular and sustained if the structure maintains ties between countries, promotes new cooperative steps, and provides technical assistance for meeting obligations.

The Mediterranean Action Plan (MAP) boasts one of the most complete institutional structures, resulting from thirty years of cooperation. Based in Athens, its Regional Coordinating Unit serves as its nerve centre, ensuring coordination between six Regional Activities Centres, each specializing in a critical domain. The Programme for the Assessment and Control of Pollution in the Mediterranean and the Mediterranean Commission on Sustainable Development (MSCD) complete the structure. The MSCD provides a means for signatory countries and non-governmental organizations (NGOs) to discuss issues and make proposals. In 2008, a Compliance Committee was created to oversee compliance with legal obligations under the Convention and Protocols. In addition to benchmarks - ratification of legal instruments, policy declarations - the regional system's energy shows in the day-to-day work of its permanent bodies: workshops and conferences, topical reports, technical assistance. All combine to durably link stakeholders working to preserve the Mediterranean basin.

Closer, Further, Faster

The Regional Seas Programmes have a simple and ambitious goal: uniting all countries bordering a given ecosystem in concerted action to protect the marine environment. Such arrangements can be summarized by the watchwords: "Closer, further, faster." A regional approach takes the uniqueness of a marine ecosystem into account, applying appropriate legal and management tools. It goes beyond general principles to fight specific threats to nearby marine areas, whether these are oil spills from ships or land-based wastewater pollution. The programmes steer their efforts toward the most important pollution sources and most threatened ecosystems. For example, the coastal countries around the Baltic Sea have recently committed to fighting eutrophication, an especially important problem in the region (Helcom 2007). In the same vein, the Coordinating Unit for the South-East Asian Region concentrates on coral reef conservation. Even though threats to regional ecosystems appear identical, their intensity and effects differ greatly, inviting a regional response tailored to each natural environment.

Regional arrangements sometimes surpass global protection requirements, further preserving their ecosystems. The dismantling of offshore oil platforms in the OSPAR (Oslo and Paris Conventions) Commission-managed North-East Atlantic Region provides a good example of how a regional agreement can advance legal progress. In 1995, the British government authorized Shell Oil Company to sink the Brent Spar oil-drilling platform off the coast of Scotland. The applicable 1972 International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) required only that such an operation obtain a permit (UNCPMP 1972). Pressure from non-governmental organizations drove OSPAR Commission member-states to prohibit sinking disused offshore platforms weighing less than ten thousand tonnes (OSPAR 1998), representing 80% of North Sea installations (Vendé 1997), and to strictly regulate sinking heavier works.

Furthermore, regional arrangements create a joint stake in the same ecosystem, one that member countries come to regard as a "shared region" (ROPME 1978) or "common heritage" (UNEP 1976). At a practical level, this "collective appropriation" leads the regional community to watch over the environment and, sometimes, to compel better environmental policy-making at the national level. The Greek sea turtle story reveals how regional arrangements can influence recalcitrant countries: Xakynthos Island in the Ionian Sea harbours one of the key nesting areas for the Mediterranean sea turtle, Caretta Caretta. During the summer, the island welcomes egg-laying sea turtles on its beaches along with hordes of tourists, posing co-habitation problems for both species. For the turtles, noise pollution from the airport, light pollution from ocean installations, beaches crowded by humans night and day, and marine pollution generally disrupt nesting activities and threaten reproduction (Mabile 2001). Starting in the mid-1980s, environmental groups pleaded for better tourism regulation and improved protections for turtles and their nesting areas. Only in1999 did Greek authorities to create a national park to preserve the most important nesting sites, under pressure from the NGOs and the European Union, via the Natura 2000 network,

See the paper about Natura 2000 by Germain in this volume.

the Mediterranean Action Plan and its 1995 Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA and Biodiversity Protocol) (UNEP 1995). Even though some problems remain (MEDASSET 2009), the regional programme's insistence on the issue raised Greek official awareness and compelled action to protect this special area.

More generally, a regional approach makes cooperative action easier than a global one does, where plural stakeholders with diverse interests complicate negotiations. Disputes between developed and developing countries have stalled legal and protective measures for high seas biodiversity (Le Courrier de la Planète, 2008). By contrast, in 1995 the Mediterranean states adopted the SPA and Biodiversity Protocol, promoting the creation of high seas protected areas. A completely new initiative - the Pelagos Sanctuary for Mediterranean Marine Mammals - came out of an international agreement signed in Rome on 25 November 1999. It covers nearly 88,000 square kilometres (55,000 sq. miles) of French, Italian and Monaco territorial waters and adjacent high seas.

The regional approach: a reflection of fragmented international governance. Although the Regional Seas Programme aims to preserve the marine environment, some strategic sectors -such as fisheries management - remain outside their cooperative mandate, evidence of fragmentation in the international governance framework. While marine protection comes under UNEP's purview, implementation of fisheries' technical, regulatory, economic and legal rules falls under the mandate of the Food and Agriculture Organization (FAO) and its regional units. As we mentioned in our introduction, two types of regional structure therefore overlap: Regional Seas and Regional Fisheries Management Organizations (RFMOs). Theoretically, biodiversity conservation in all its forms would make a natural link between them; however, the negotiations and decisions that each sponsors may follow different and even conflicting logics. Within RFMOs, many states strive to maintain (or minimally reduce) capture volumes for their national fishing industry. Experts from Fisheries rather than Environmental Ministries most often lead negotiations; ecological concerns sometimes take a backseat as a result. The RFMO framework may still include marine biodiversity conservation measures - for example, banning certain fishing practices, such as high-seas driftnet fishing and deep-sea bottom trawling, or closing fish nurseries to fishing. Yet these regional organizations and their member countries have failed to halt overfishing, as a single statistic will show: 75% of the world's fish stocks are currently fully- or over-exploited (FAO 2009). Regional Seas programmes alone lack the authority to curb such overfishing. For example, the Mediterranean Action Plan cannot manage bluefin tuna stocks that depend on an inter-governmental fishery organization, the International Commission for the Conservation of Atlantic Tunas (ICCAT). This reflects the fragmentation of ocean governance schemes, divided between several institutions in certain sectors. It also illustrates the difficulties countries face in conducting coherent sectoral policies, and the permanent tension between exploitation and conservation within various administrations (see Fig. 2).

In the same way, regional arrangements can only marginally address international shipping and the risks it poses. While coastal states can establish rules to fight hydrocarbon pollution, they cannot suspend or unilaterally stop ships from navigating their waters - even in ecologically fragile, high-risk areas. If countries want further ship traffic controls to improve navigation safety, they must ask the International Maritime Organization (IMO) to intervene. These examples further highlight the fragmented legal and institutional regimes that oversee the marine environment. The "silo effect" that separates jurisdictions and authorities sometimes poses great problems, notably when they must reconcile free high seas navigation (under IMO purview) and environmental protection.

The Strait of Bonifacio perfectly illustrates the complexities involved. The Strait separates the French island of Corsica from the Italian island of Sardinia; it is a particularly rich zone ecologically. It also serves as a vital international shipping route from Barcelona, Spain, and French Mediterranean ports to southern Italian ones (Naples, Palermo, Gioia Tauro, etc.) and to the Suez Canal. Its geographic position naturally exposes the area to heavy maritime traffic and undeniable environmental risks. At the beginning of the 1990s, concerns grew among French and Italian authorities about the risks of increased shipping activity in this area. In 1996, the cargo ship Fenès, carrying a 2,600-tonne grain cargo and sailing under a Panamanian flag, sank near the Lavezzi Islands in the Marine Reserve of the Bouches de Bonifacio. Part of the grain cargo escaped from its damaged hull and buried underwater vegetation, notably the Poseidon sea grass meadows that provide refuge and food for many ocean species.

A specific UNCLOS-defined legal regime

UNCLOS Part III.

covers international shipping straits. Coastal states cannot prohibit ships' passage, but they may designate shipping lanes and prescribe traffic separation systems. Nothing prevents countries from barring ships flying under their own flag from these risk-prone areas: French and Italian authorities did exactly that from 1993 onward, banning their merchant ships from transporting dangerous cargoes. In 1998 the IMO followed through with new shipping rules, setting up recommended two-way traffic routes along with improved lighting and signalling systems. But however exemplary the French and Italian approach might be, their ban remains limited to ships registered under their flags. Obviously, these are not the only ships traversing the straits: protecting the marine environment requires curbs on all maritime traffic in the area, an option recently supported in a joint declaration by French and Italian environmental ministers (French Government 2010). Only the IMO, and not the Mediterranean Action Plan, has the authority to create such legal restrictions. While not impossible in theory, reconciling environmental and shipping objectives depends on coordination between these two institutions, whose priorities - protecting the coast versus free international commerce - differ significantly.

The Regional Approach Cannot Replace Global Negotiations. In some cases, a regional approach cannot substitute for international negotiations. As Friedheim (1999) has noted, "the class of problems characteristic of the world's oceans are collective action problems... Although some ocean problems are amenable to a bilateral or regional solution, many are not." For example, the legal status of high seas biodiversity reveals a large doctrinal divide

See e.g. Germani and Salpin in this volume.

that regional arrangements alone cannot permanently resolve. Global negotiations will need to address the most problematic questions, e.g. the use of marine genetic resources or appropriation of living organisms via patents

See e.g. Leary in this volume.

. In the same way, climatic geo-engineering of the ocean, e.g. iron fertilization and carbon sequestration, requires the international community to respond worldwide, rather than simply multiplying regional policies and actions. We believe that the nature of these problems and the scale of their resolution are fundamentally global.

Challenges to Overcome

Opening New Spaces. For a long time, Regional Seas initiatives have remained within the confines of territorial waters and Exclusive Economic Zones; recently, cooperation has extended to new spaces. The Protocol Concerning Specially Protected Areas and Biodiversity in the Mediterranean (Barcelona Convention; see UNEP 1976) provides for Marine Protected Areas in waters beyond national jurisdictions; this strengthens protections for ecosystems and threatened species previously excluded from regional initiatives. Similarly, the Mediterranean Action Plan recently filled a "black hole" in regional regulations - its coastal areas. The new law establishes "a common framework for integrated management of coastal areas around the Mediterranean Sea," requiring conservation of coastal ecosystems, regulation of seaside activities, strategic planning for coastlines, and risk management in coastal policies. We would recommend that other regions study the political and judicial feasibility, the scientific and geographic relevance of such laws, and commit themselves to preserving spaces too long excluded from cooperative protections

We note that the last meeting of the signatory Parties to the Nairobi Convention proposed designing a Specially Protected Area Protocol for the Western Indian Ocean Region (Billé and Rochette 2010), and that similar discussions are underway for the Black Sea.

.

Regulate New Challenges. The Regional Seas provide an effective framework to fill international regulatory gaps and address emerging issues - a direction to encourage in coming years. We would argue, for example, that regional cooperation could advance regulation of offshore oil drilling. The April 2010 explosion of the Deepwater Horizon oil rig, 70 kilometres (43 miles) off the coast of New Orleans, proved a tragic reminder of international dependence on fossil fuels in general and on deep-sea drilling in particular. Since the event, several experts have highlighted gaps in international deep-water drilling regulation

See e.g. Hamilton or Chabason in this volume.

. While UNCLOS Part VI recognizes the right to exploit resources on the continental shelf, countries follow their own laws when licensing international drilling companies. This situation raises questions about the adequacy of current governance, and makes increased regional cooperation an option worth studying.

While awaiting action from the international community as a whole, Regional Seas could themselves adopt measures to regulate offshore drilling. Although the Mediterranean countries adopted a relevant Offshore Protocol in 1994 (the Protocol for the Protection of the Mediterranean Sea Against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil; see UNEP 1994), its adoption has not led to further action. Recent events call for appraisal of such efforts in regions affected by oil exploration, such as the West African or Wider Caribbean Regions. In addition, we believe other emerging issues also require stronger regional initiatives - e.g. damage to marine biodiversity from acoustic pollution (Papanicolopulu 2008) or climate change adaptation through integrated coastal management (Rochette et al. 2010) - an issue surfacing only recently.

Reinforce Institutional Cooperation. The absence of a global governance regime for the ocean means that legally competent entities must find ways to cooperate. For example, no single international body may create Marine Protected Areas on the high seas; these require joint actions by the IMO, RFMOs and Regional Seas Programmes. Integrated protections covering all threats to vulnerable ecosystems must engage multiple institutional "strata" or levels of action. Efforts to improve coordination are underway; currently, the OSPAR Commission, along with the North-East Atlantic Fisheries Commission, the IMO and the International Seabed Authority, designs management plans for newly-created Marine Protected Areas. However, this appears to be an isolated case. Effective sharing of knowledge and joint management of regional ecosystems will require much more frequent and thorough coordination.

Consolidate Cooperation Frameworks. Some observers believe that Regional Seas often result from "cooperation without implementation" (see e.g. Kutting 1994). Indeed, although the regional initiatives have promoted significant progress, too many conventions and protocols have been - and remain - dormant, due to a lack of energy in regional cooperation. For example, the Western Indian Ocean region has faced difficulties in recent years. Its Convention Secretariat lacks needed human resources, and unlike the MAP, the region has no Regional Activity Centre. The Convention's day-to-day activities, technical assistance and implementation support remain limited. Similar situations occur in other regional arrangements, e.g. the West African one. Reactivating dormant arrangements requires - at the very least - increased funding to improve performance of Coordinating Units, or to create Regional Activity Centres and ensure robust regional cooperation.

Even the most advanced Programmes could benefit from strengthened compliance; this means, in the first instance, regular status reports to Coordinating Units on how nations implement the relevant convention and its protocols. Currently, compliance monitoring as prescribed in the conventions has little coercive power. International law thus appears imperfect "because of the obvious insufficiency - if not complete absence - of sanction mechanisms" (Weil 1982). The issue is particularly complex. On one hand, it appears difficult to "coerce moral or political actions" or to "cooperate in confidence with the same states" (Chabason 1999). On the other hand, avoiding the pitfalls of "Paper Protocols" - adopted and ratified but insufficiently implemented - means rethinking regional arrangements as well.

Conclusion

For the last forty years, the regional approach to marine conservation has constantly expanded; today it involves approximately one hundred countries. It has gradually established its regulatory effect, moving closer, further and faster than global legal frameworks. From an environmental point of view, Regional Seas Programmes have had - and continue to have - many important successes. For example, regional cooperation in the Baltic Sea has significantly restored the ocean's environmental quality. In the Mediterranean and Caribbean Seas, Marine Protected Areas have multiplied. In the West Indian Ocean, countries should soon have common regulations for coastal development. Nevertheless, regional initiatives too often suffer the same difficulties as global mechanisms: poor institutional coordination, insufficient funding for cooperative efforts, disregard of legal instruments. Regional Seas must overcome these challenges in coming years to retain their value and effectiveness within international oceans governance architecture.

Regional Seas Programmes and Initiatives

Source: UNEP (1982, updated 2010)
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Examples of Institutional Structures for Regional Seas Programmes

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Figure 2. Regional Governance: Overlaps in Regional Seas and RFMOs

Source: FAO (2009); UNEP (1982, updated 2010)
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