Challenges to the Marine Environment and Gaps in Regional Cooperation

1st Meeting of the CSCAP Study Group on Marine Environment Protection Manila - 5 April 2016, Marco Polo Ortigas

Youna Lyons Senior Research Fellow, Centre for International Law

Outline

I. Background – Facts

II. Background – Legal and Institutional Status at Regional Level

III. A selection of issues

IV. Summary of gaps

V. Fisheries

VI. Transboundary pollution

Conclusion

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I. Background - Facts

1. It is intensely used for competing activities : for fisheries, shipping, offshore

mining, pipelines, coastal and marine tourism, waste disposal, etc.

Number of stocks by status (in %) from S Heileman on South China Sea LME on NOAA’s websitehttp://coral.aims.gov.au/info/diversity-patterns.jsp:http://www.lme.noaa.gov/index.php?option=com_content&view=article&id=82:lme36&catid=41:briefs&Itemid=72

Extracted from FAO State of World Fisheries and Aquaculture 2014

From the National Center for Ecological Analysis and Synthesis: http://www.nceas.ucsb.edu/globalmarine/impacts

1. It is intensely used for competing activities : for fisheries, shipping, offshore

mining, pipelines, coastal and marine tourism, waste disposal, etc.

I. Background - Facts

Courtesy of IHS (2011)

1. It is intensely used for competing activities : for fisheries, shipping, offshore

mining, pipelines, coastal and marine tourism, waste disposal, etc.

I. Background - Facts

2. The SCS has a rich biodiversity: the ‘global apogee of marine

biodiversity’ or the ‘centre of biodiversity of the World’

Biodiversity of reef building corals, showing the location of the Coral Triangle (Veron: http://coral.aims.gov.au/info/diversity-patterns.jsp.). Colours indicate total species richness per ecoregion. The maximum band of hard coral diversity is 500-600 species recorded. The SCS is in the 400-500 band which is still very high. June 2015 article by D. Huang and al. proposes that the SC may include 571 knowns species of reef coral Extraordinary diversity of reef corals in the South China Sea, Marine Biodiversity 45: 157-168

I. Background - Facts

II. Background - Legal and Institutional Status at Regional Level

Numerous regional declarations that emphasize the importance of the protection of the marine environment and sustainable use of marine resources 2005 Putrajaya Declaration of Regional Cooperation for the Sustainable Development of the Seas of East Asia (PEMSEA) (…)

2015 ASEAN EAS Statement on Enhancing Regional Maritime Cooperation

2015 ASEAN Guidelines for Preventing the entry of fish and fishery products from IUU fishing activities into the supply chain

No binding regional sea agreement for the conservation and sustainable use of maritime activities (in Southeast Asia nor wider East Asia nor for smaller semi-enclosed sea basins, except Pacific side), No RFMO

Numerous programs of different scales and issues 2015 Sustainable Development Strategy for the Seas of East Asia / SDS-SEA

CTI , Sulu-Sulawesi Action Plan, etc.

Numerous bilateral and specialized agreements on specific issues or practices such as for fisheries or oil and gas exploitation purposes

A complex web of regional institutions with different geographical scope and mandates: ASEAN, UNDP driven programs, PEMSEA, UNEP initiatives (COBSEA), IOC-WESTPAC, SEAFDEC

III. A Selection of Issues

Compounded impact of all activities and pollution sources Fisheries management: less fish of smaller size, destructive fishing

practices, overfishing, IUU Ship-source pollution: e.g. oil sludge on beaches and in mangrove Ocean pollution including land-based pollution and plastic debris Offshore mining (incl. oil and gas): locally important pollution and risk of

transboundary pollution Degradation of all marine habitats from combined impact of coastal

development, aquaculture, marine tourism, destructive fisheries practices and climate change

Lack of environmental management of areas subject to sovereignty and maritime boundaries disputes

Increasing competition for marine resources as a source of political flashpoints

‘Paper parks’ (MPAs with no clear management plan, institutional ownership, legal/compliance and enforcement mechanisms to ensure restriction of uses)

IV. Summary of gaps

Gaps in international regulations: land-source pollution, pollution from offshore activities, areas beyond national jurisdiction

Gaps in regional ratification/accession/adhesion to international treaties: 1995 UN Fish stock agreement, 1990 OPRC, 1972 London Convention, etc.

Gaps in regional implementation of treaties: e.g. no RFMO in the SCS and Sulu-Sulawesi, lack of reception facilities for the implementation of MARPOL and regional sensitivity mapping for the implementation of OPRC

Gaps in coordination mechanism at national level and development of a clear integrated ocean policy and marine ocean planning

Gaps in environmental baselines, sharing of scientific knowledge (especially that gathered by the industry) and an institutional network to centralize that knowledge and share it

Gaps in assessment of compound impacts from all activities

Gaps in monitoring, compliance and enforcement

V. Managing shared, straddling and migratory living resources

Exploit their natural resources [living and non-living] in accordance with the duty to protect the marine environment [Art. 193]

In the EEZ, obligation to determine the allowable catch of living resources whilst ensuring that they are not threatened by over-exploitation, based on best scientific evidence, fishing patterns, interdependence of stocks [Art. 61 and fol.]

In semi-enclosed seas, obligation to cooperate in the performance of rights and duties under UNCLOS including coordination of the management, conservation, exploration and exploitation of living resources [Art. 123]

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V. Managing shared, straddling and migratory living resources

Straddling and shared stocks Obligation to coordinate and ensure conservation and development

V. Managing shared, straddling and migratory living resources

Migratory fish stocks Same obligation as well as obligation to cooperate to establish a regional organization if none in place

BUT NO RFMO in the Region

V. Managing shared, straddling and migratory living resources

Fisheries Status in the SCS

From A Witter et al. (2015)

V. Managing shared, straddling and migratory living resources

Fisheries Status in the SCS

Number of stocks by status (in %) from S Heileman on South China Sea LME on NOAA’s websitehttp://coral.aims.gov.au/info/diversity-patterns.jsp:http://www.lme.noaa.gov/index.php?option=com_content&view=article&id=82:lme36&catid=41:briefs&Itemid=72

Extracted from FAO State of World Fisheries and Aquaculture 2014

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VI. Transboundary Pollution

‘Obligation to ensure’ that activities are so conducted as to not cause damage to the marine environment is an obligation of due diligence according to the ICJ

An obligation ‘to deploy adequate means to exercise best possible efforts, to do the utmost to obtain this result’

‘Due diligence’ is a ‘variable concept’ that ‘may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge’

Due diligence also includes the Obligation to apply a precautionary approach and best environmental practices

Also, a General duty to cooperate on activities that may cause transboundary pollution(Malaysia-Singapore Land Reclamation case)

And an obligation to monitor the risks or effects of pollution

And an obligation to publish the results

Obligation to protect, cooperate, monitor and publish

VI. Transboundary Pollution

Offshore Activities

VI. Transboundary Pollution

Large scale dredging of shallow coral formations

VI. Transboundary Pollution

Large scale dredging of shallow coral reef flats

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VI. Transboundary Pollution

Large scale dredging of shallow coral reef flats

VI. Transboundary Pollution

Large scale dredging of shallow coral reef flats

There is a general lack of consultation and coordination between littoral States of the SCS in the management of resources in the SCS

Maritime disputes are concentrating the attention on security issues and over shadowing serious environmental issues

Could track 2 type discussions on specific technical issues and sectors be used to solve or improve management for those sectors?

Baseline monitoring could be a starting point

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Conclusion 1/2

Improve connection between regulation of uses and conservation planning

Re-assess opportunity to become party to globally accepted treaties

Develop regional implementation framework for international instruments

such as in shipping: OPRC and MARPOL, but also dumping to implement

UNCLOS and the London Convention sets minimum standard

Focusing on specific issues such as the creation of an RFMO for straddling

stocks and the mapping for sensitive habitats risk of transboundary

pollution from oil (shipping and offshore mining) might make it more sizable

Develop an institutional network for knowledge sharing in SEA to avoid

duplication of efforts and avoid loss, and

Create a regional knowledge centre for the marine environment (can be

virtual)

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Conclusion 2/2

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Thank you!

Questions?

Contact younalyons @nus.edu.sg