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16 Rev. Eur. Comp. & Int'l Envtl. L. 1 (2007)

handle is hein.journals/reel16 and id is 1 raw text is: RECIEL 16 (1) 2007. ISSN 0962 8797 Competence or Confidence? The Appropriate Forum to Address Multi-Purpose High Seas Protected Areas Elisa Morgera This article addresses the question of the most suitable forum for discussions on the establishment of marine protected areas beyond national jurisdiction, and on the complementary role of other international organ- izations and processes related to marine biodiversity and fisheries. In light of negotiations in 2005 and 2006 within the context of the United Nations Convention on Biological Diversity (CBD) and the United Nations General Assembly, it is argued that consensus on the leading role of the General Assembly was based on political grounds - a judgement call based on the confidence in this forum to address ocean issues in an integrated manner - rather than strictly on the competence of the CBD in relation to the high seas. High seas protected areas' have been defined as 'areas of marine waters which are granted a special protection regime because of their significance for ecological, biological, scientific, historical, cultural or recreational activities and are located beyond the limit of national jurisdiction'.2 Increasing international attention has focused on high seas marine protected areas as one of the tools for the protection and sustainable use of marine biodiversity situated in around 64% of the ocean's total surface which is beyond the limits of national jurisdiction.3 This interest is based on the growing 1 It should be noted that the term 'high seas protected areas' is a non-technical, shortened version for 'marine protected areas beyond national jurisdiction'. According to the United Nations Convention on the Law of the Sea (UNCLOS), high seas only encompass the water column of areas beyond national jurisdiction (Article 86), and do not therefore include the seabed beyond national jurisdiction ('the Area'), as defined by UNCLOS, Article 1(1)(1). See United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982). See also the discussions by A. Ascencio and M. Bliss, Conserving the Biodiversity of the High Seas and Deep Oceans: Institutional Gaps in the International System (undated), available at <http://www.highseasconservation.org/documents.php>, at 2. 2 T Scovazzi, Marine Protected Areas on the High Seas: Some Legal and Policy Considerations, paper presented at the World Park Congress, Durban, South Africa (11 September 2003). 3 Convention on Biological Diversity (CBD), Note by the Executive Secretary: Options for Cooperation for the Establishment of Marine Protected Areas in Marine Areas Beyond the Limits of National Jurisdiction (UN Doc. UNEP/CBD/WG-PA/1/2, 20 April 2005), at 6. @ 2007 The Author. Journal compilation @ 2007 Blackwell Publishing Ltd., 9600 Garsington Road, recognition of the value of marine biodiversity for economic and social development, for its intrinsic ecological value' and for human well being. It has been documented that marine biodiversity produces a third of the oxygen needed for human life, contributes to the moderation of climate conditions, provides a source of protein for human consumption' and has an enormous market potential for biotechnological developments.6 At the same time, scientific informa- tion derived from explorations carried out in the past 5-10 years has provided increasing evidence of the mounting vulnerability of marine biodiversity, particularly in areas beyond national jurisdiction, of the collapse of global fisheries,' and the limits of the current legal system in dealing with scientific and technological advances and humans' expanding impact on the oceans.9 Among the most threatened features of marine biodiversity are the critical habitats of seamounts, deep-sea hydrothermal vents, and cold- and deep-water corals.o 4 It has been estimated that the number of species inhabiting the deep ocean ranges from between 500,000 and 10 million (see D. Currie, Protecting the Deep Seas (undated), available at <http:// www.savethehighseas.org/publicdocs/DCurrieOceansForum.pdf>. ' Report of the UN Secretary-General on Oceans and the Law of the Sea (UN Doc. A/60/63/Add.1, 15 July 2005). 6 C. Hislop, Two Challenges to the Creation of Non-Jurisdictional Marine Protected Areas: Freedom of the High Seas and the Common Heritage of Mankind Principle, paper presented to the Australasian Political Science Association Conference, University of Tasmania, Hobart (29 September-1 October 2003), available at <http://www.utas.edu.aul government/APSA/CHislopfinal.pdf>. See Report of the UN Secretary-General, n. 5 above, at 5-14. 8 B. Worm et al., 'Impacts of Biodiversity Loss on Ocean Ecosystem Services', 314:5800 Science (3 November 2006), 787. 9 United Nations Environment Programme/International Union for Conservation of Nature and Natural Resources, Ecosystems and Biodiversity in Deep Waters and High Seas, UNEP Regional Seas Report and Studies No 178 (UNEP/IUCN, 2006). 10 K. Gjerde, 'High Seas Marine Protected Areas: Participant's Report of the Expert Workshop on Managing Risks to Biodiversity and the Environment on the High Seas, including Tools such as Marine Protected Areas: Scientific Requirements and Legal Aspects', 16:3 The International Journal of Marine and Coastal Law (2001), 515, especially at 517-521. Oxford OX4 2DQ, UK and 350 Main Street, Maiden, MA 02148, USA. 1

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