3.3 Area-Based Management Tools and shipping
Part III of the High Seas Treaty is dedicated to area-based management tools (ABMT) for the high seas, including marine protected areas (MPAs). In general, area-based management contributes to implementing an ecosystem-based approach to the oceans by determining and applying feasible conservation and/or management tools in a spatially defined area. Some marine areas may be particularly vulnerable to ship-source pollution,(1) Shipping can produce a number of negative impacts, in form of pollution by substances such as oil, garbage, soot and other atmospheric pollution as well as acoustic pollution (noise), introduction of invasive species with ballast water and bio-fouling, by ship strikes and other wildlife disturbance caused by ships: see n 8. due to their special ecological and biological characteristics: for example, these areas may be habitats to endangered and rare species and may already be subject to pressures from shipping and other economic and recreational activities. Addressing the special needs of such vulnerable and sensitive sea areas both within and outside national jurisdiction is a crucial objective of the ecosystem-based approach to protecting the ocean.
Provisions on ABMT on the high seas are an important contribution by the forthcoming Treaty to the holistic, ecosystem-based approach to protection and use of the ABNJs. The Treaty itself does not establish any measures directly; it invites States Parties to submit proposals on ABMT and establishes decision-making procedures to consider the proposals. Several existing global and regional international legal frameworks already support the ecosystem-based approach by expressly envisaging various types of ABMT,(2) Thus, Convention on Biological Diversity (CBD), Rio de Janeiro, 5 June 1992, in force 29 December 1993, 1760 UNTS 69, Article 2 provides for protected areas as geographically defined areas designated or regulated and managed to achieve specific conservation objectives. International Union for Nature Conservation (IUCN) work to establish ABMTs including MPAs, Important Marine Mammal Areas (IMMAs) and Important Bird and Biodiversity Areas (IBAs). including those covering marine areas.(3) Conference of Parties (COP) of CBD (ibid.) has adopted scientific guidance for ecologically and biologically sensitive sea areas (EBSA), as well as scientific guidance for designing representative networks of MPAs. See also Ingvild Ulrikke Jakobsen, Marine Protected Areas in International Law: an Arctic Perspective (Leiden: Brill, 2016), 202 < doi 10.1163/9789004324084_015>. Regional cooperation frameworks (notably, the OSPAR) envisage both MPAs and networks of MPAs as also encompassing parts of the high seas.(4) OSPAR Commission – Marine Protected Areas < Marine Protected Areas | OSPAR Commission>. However, all in all, only a marginal share of the high seas is as of today protected by ABMTs.
Due to the navigational freedoms enjoyed by flag States under the law of the sea, international shipping has always been in a special position compared to other, less mobile, sea-based activities. Regulating or limiting international shipping activities beyond the territorial sea limits, through the use of global or regional ABMTs outside the framework of the IMO (or in the absence of coordination with the IMO), is not realistic. As the competent organisation, the IMO may adopt Special Areas and approve coastal States’ applications for PSSAs under UNCLOS.(5) See 2.3 above.
The IMO’s competences with regard to ABMTs may, however, have some limitations. Firstly, the IMO’s measures are based on a single-sector approach to those areas of the sea which need special protection from shipping impacts. By comparison, MPAs (and MPA networks) adopted under the auspices of OSPAR and other relevant bodies seek to address the full range of activities to be managed or even prohibited there.(6) Roberts, Chircop and Prior (n 35), 498. Admittedly, despite this narrow sectoral approach, the IMO’s contribution to the protection of ecologically sensitive sea areas is generally recognised.(7) In its statement at the second intergovernmental conference for negotiations of the High Seas Treaty, the IMO emphasised that the designation of special areas and PSSAshas not been developed or implemented in isolation. The PSSA process draws heavily on the EBSA process and criteria when identifying areas, and there are also strong links and continuous dialogue with the UNESCO World Heritage Centre Marine Programme. Available at <statements-second-session (un.org)>. However, the highest potential would probably be realised if PSSAs were designated together (combined) with more comprehensive ABMTs, in line with the ecosystem-based approach and other principles and approaches promoted by the High Seas Treaty.
Secondly, Article 211(6) and other provisions of UNCLOS are silent on the possibility of adopting specially protected areas beyond the EEZs. However, in the PSSA Guidelines, the IMO considers that it generally has competence to adopt PSSA on the high seas. It is also generally recognised in the literature that such measures would be within the IMO’s mandate.(8) Roberts, Chircop and Prior (n 35).
Thirdly, significant gaps exist in the actually adopted IMO’s measures for the high seas. Currently, the IMO has not established Particularly Sensitive Sea Areas (PSSAs) for the High Seas. In this author’s view, the High Seas Treaty may encourage the further development of shipping-related ABMTs for the high seas under the auspices of the IMO, by promoting and enabling a more comprehensive approach based on the combination of sectoral and area-based measures. The Treaty also encourages individual States Parties to promote their objectives when participating in the decision-making in the IMO.(9) E.g., Article 8(2) lays down that ‘Parties shall endeavour to promote, as appropriate, the objectives of this Agreement when participating in decision-making under other relevant legal instruments, frameworks, or global, regional, subregional or sectoral bodies’. This may speed up the IMO’s work on the designation of the ABMT for the high seas, especially due to the provisions requiring States Parties to the High Seas Treaty to promote the adoption of measures within the IMO to support the implementation of the decisions and recommendations made under the High Seas Treaty.(10) Article 25(4) of Part III ‘Measures such as Area-based Management Tools, including Marine Protected Areas’. As the implementation responsibility within the designated ABMTs lies with the flag State, the Treaty may contribute to better implementation by flag States.(11) Article 25(1) requires Parties to ‘ensure that activities under their jurisdiction or control that take place in areas beyond national jurisdiction are conducted consistently with the decisions adopted under this Part.’
Although it is obvious that the IMO will retain its crucial role in designating ABMT applicable to international shipping activities, several issues arise with regard to the Treaty’s impact on IMO’s competences and work. It is unclear to what extent the IMO’s function of balancing international navigational rights with other interests (notably, marine environmental and biodiversity protection) will remain unaffected by the Treaty’s provisions. International trade and navigation are not among the interests explicitly protected under the ABMT goals set out in the High Seas Treaty.(12) Article 17 and indicative criteria listed in Annex I. However, the Preamble of the High Seas Treaty acknowledges generally the importance of balancing the rights, obligations and interests set out in UNCLOS.
Furthermore, the High Seas Treaty does not expressly acknowledge the priority of the IMO as the main authority for the designation of ABMT concerning international shipping activities.(13) Articles 19-23. Proposals regarding ABMTs, including MPAs, are to be submitted by the States Parties, individually or collectively, to the secretariat to be established under the Treaty.(14) Articles 19 and 50. Proposals must, among other requirements, contain a description and limits of the area and measures proposed, as well as information on any consultations undertaken with relevant global, regional and sectoral bodies, and information on the already implemented ABMTs. The Scientific and Technical Body(15) Articles 20 and 49. reviews the proposals to be adopted by Conference of Parties (COP)(16) Articles 22 and 47. and will thus take account of the existing mandates and measures. The IMO (or other bodies) are not given any explicit priority in the submission of the proposals or decision-making. However, provisions on consultations and decision-making with regard to such proposals(17) Article 19 and 21. ensure that the IMO may submit its views on the merits of the proposal before any decision is taken by the COP.
According to Article 22(1), the COP takes decisions on the establishment of the ABMTs, including MPAs, and related measures. It may also take decisions on measures compatible with those adopted by the IMO (or other bodies), acting in cooperation and coordination with it. If the proposed measure is within the competence of the IMO, the COP may recommend to the Parties and the IMO the promotion of the adoption of relevant measures in accordance with their respective mandates.(18) Article 22(1)(c). Read in light of Article 4 and 19(2), this means that the COP will seek to avoid encroaching upon the IMO’s competences by adopting shipping-related ABMTs for the high seas. Indeed, measures adopted for shipping outside the IMO framework may arguably threaten to undermine the IMO’s work.
At the same time, it is debatable to as whether this will be the case, so long as the high seas are not covered by ABMT adopted for shipping under the IMO. Article 19 also does not fully rule out the possibility that proposals on ABMTs applicable to international shipping on the high seas could be established by the COP under Part III of the High Seas Treaty, rather than under auspices of the IMO. All things considered, it would not be effective to open up the way for parallel forums to adopt ABMT for shipping on the high seas. However, the availability of such an option highlights the need for the IMO member States to work more actively towards the establishment of ABMT on the high seas.