CENTRE FOR INTERNATIONAL LAW
CIL WORKING PAPER
MARINE BIODIVERSITY IN SOUTHEAST ASIA:
AN INTERNATIONAL LAW GUIDE FOR MARINE RESEARCHERS
By
Youna Lyons,
Senior Research Fellow,
Centre for International Law, National University of Singapore
*Draft Only – Not for circulation or citation without express permission of the author
Abstract
This paper outlines some of the key international rules to be considered by researchers documenting,
monitoring or protecting marine biological diversity. It discusses the weaknesses of the international
legal framework but also provides guidance for marine researchers to assist in the implementation of
protection mechanisms.
Biological diversity is the subject of one specialised international convention (widely ratified globally and
regionally in Southeast Asia) devoted to the identification, monitoring and protection of biological
diversity, the 1992 Convention on Biological Diversity (CBD). This paper investigates and discusses the
application and pitfalls of the Convention to the biodiversity of the seas of Southeast Asia and of the
concept of Ecologically or Biologically Significant Areas in need of protection. Where marine biological
diversity is concerned, the implementation of the CBD has to be conducted within the framework set by
the 1982 United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS sets specific and distinct
rights and obligations for coastal States, flag States and other States (i) in different geographic zones
(territorial sea, exclusive economic zone, continental shelf, etc.); and, (ii) for different uses of the sea
such as shipping and fishing. Notably, coastal States have to take into consideration the rights of other
states when enacting laws and regulations to identify, monitor, research and protect marine biodiversity,
which they may consider to be located within their jurisdiction.
TABLE OF CONTENTS
1.
INTRODUCTION ..........................................................................................................................4
2. THE COMMITMENT TO PROTECT BIOLOGICAL DIVERSITY IN THE CONVENTION ON BIOLOGICAL
DIVERSITY (CBD) ................................................................................................................................5
BACKGROUND TO THE CBD ............................................................................................................................. 5
LEGAL DEFINITION OF BIOLOGICAL DIVERSITY ...................................................................................................... 6
TERRESTRIAL AND MARINE BIODIVERSITY ........................................................................................................... 7
DISTINCTIVE FEATURES: OBLIGATIONS OF IDENTIFICATION, MONITORING AND REPORTING ......................................... 8
PRIORITIZATION............................................................................................................................................. 9
PROTECTED AREAS: FROM NO USE TO REGULATED USES ..................................................................................... 11
OTHER MODERN PRINCIPLES OF CONTEMPORARY INTERNATIONAL ENVIRONMENTAL LAW ........................................ 12
3.
INTEGRATION OF THE CBD IN THE FRAMEWORK SET BY THE INTERNATIONAL LAW OF THE SEA . 13
MARITIME ZONES AND FUNCTIONAL USES ........................................................................................................ 13
OCEAN SPACE UNDER COASTAL STATES’ SOVEREIGNTY ....................................................................................... 13
CONTINENTAL SHELF AND EXCLUSIVE ECONOMIC ZONE....................................................................................... 15
STRAITS USED FOR INTERNATIONAL NAVIGATION ............................................................................................... 15
SEABED AND OCEANS BEYOND NATIONAL JURISDICTION ..................................................................................... 16
MARINE SCIENTIFIC RESEARCH (MSR) ............................................................................................................. 16
4.
APPLICATION TO MARINE BIOLOGICAL DIVERSITY IN THE SEAS OF SOUTHEAST ASIA .................. 17
IDENTIFYING EBSAS, SAMPLING, REPORTING AND MONITORING .......................................................................... 19
PROTECTING AGAINST EXTRACTIVE USES AND POLLUTION ................................................................................... 22
5.
CONCLUSION AND RECOMMENDATIONS FOR MARINE RESEARCHERS........................................ 25
1. INTRODUCTION
An increase and improvement in the depth and breadth of marine biodiversity research and in the
management mechanisms has in Southeast Asia1 been called for by the scientific community for
decades.2 This paper focuses on the main international legal tools available to assist marine researchers
with this goal with a particular emphasis on the main features of the regime resulting from the
combination of the 1992 Convention on Biological Diversity (CBD) and of the 1982 United Nations
Convention on the Law of the Sea (UNCLOS).
The first part of this paper discusses the premises of the CBD before looking at its language and
application to marine, rather than terrestrial, biodiversity. The key obligations created along the main
themes of identification and inventory, monitoring and protection are identified. The second part
presents the main features of UNCLOS in the context of marine biodiversity and the implementation of
the CBD in the marine realm. The last part builds on the previous parts, applies the observations made
to the specific context of the seas of Southeast Asia and discusses region specific issues, including the
impact of maritime boundaries disputes. The development of the scientific concept of Ecologically or
Biologically Significant Areas in need of protection and the difficulties encountered in the
implementation are discussed. The conclusion provides guidance for marine researchers to assist in the
implementation of protection mechanisms and includes a practical checklist to inform when doing
marine biodiversity research.
1
In this paper, Southeast Asia designates the member States of the ASEAN and the seas of Southeast
Asia include the South China Sea, the Sulu-Celebes Sea, the Indonesian Sea and the Gulf of Thailand.
Unlike the other seas, the Indonesian Sea is primarily composed of Indonesia’s archipelagic waters.
2
The seas of Southeast Asia have been called by prominent marine ecologists ‘the global apogee of
marine biodiversity’(K.E. Carpenter et al. (2011) Comparative phylogeography of the Coral Triangle and
implications for marine management, Journal of Marine Biology 2011:1-14 [1]), or the ‘centre of
biodiversity of the World’ (C.Wilkinson et al. (2006) Strategies to reverse the decline in valuable and
diverse coral reefs, mangroves and fisheries: the bottom of the J-Curve in Southeast Asia?, Ocean and
Coastal Management 49:766-779 [766]). They are the subject of much interest for their exceptional
biodiversity. Depending on the geographical scope of studies, they host from 34 to 44% of the area of
world coral reef and a quarter to 40% of the total area of global mangrove area (P.Todd, X.Ong and Chou
L.M. (2010) Impacts of marine life in Southeast Asia, Biodiversity. Conservation 19: 1064 and C.Wilkinson
et al. (2006) Ibid [766]).
2. THE COMMITMENT TO PROTECT BIOLOGICAL DIVERSITY IN THE CONVENTION ON BIOLOGICAL
DIVERSITY (CBD)
Background to the CBD
The disagreement between developing and developed nations
The text of the CBD arose from the second global conference3 on the environment which took place in
1992 at the Rio Earth Summit4 following intense and difficult discussions between developed and
developing nations. Many see this Convention as an international treaty with the aim of protecting
biological diversity. However, while it contains provisions to this purpose, the guiding agenda of the
biodiversity debate was the issue of ownership and exploitation of biotechnology rather than
conservation.5The CBD was the outcome of a power struggle between developed and developing
nations for exploitation of biological diversity. The pressure coming from the developed world to better
conserve and manage biological diversity located in proximity to or within the territorial jurisdiction of
developing States, has not always been well regarded by the latter. This pressure has even been labeled
as ‘First World Bio-Imperialism’. Developing nations perceived this call for the protection of biodiversity
as an unwelcome neo-colonial style intrusion “detrimental to their own development”. 6 The location
within their jurisdiction of the majority of the world biological diversity also gives them leverage to
negotiate trade-offs for the conservation commitments demanded by developing nations.
This compromise can be seen in the objectives of the Convention which are stated in article 1; they are
the conservation of biological diversity, the sustainable use of its components and the fair and equitable
sharing of the benefits arising out of the utilization of genetic resources.
3
The first global conference on the environment was the 1972 Stockholm Conference which triggered
the Stockholm Declaration, the Stockholm Action Plan and the creation of the United Nations
Environment Program (UNEP). This conference also created the impetus for the 1972 London
Convention on the Prevention of Marine Pollution from Dumping of Wastes and Other Matter and the
1973 Convention for the Prevention of Pollution by Ships, opened for signature 29 November 1972,
1046 UNTS 120, (entered into force 30 August 1975) <http://cil.nus.edu.sg/1972/1972-convention-onthe-prevention-of-marine-pollution-by-dumping-of-wastes-and-other-matter/>.
4
This event also stimulated the successful negotiation of the United Nation Framework Convention on
Climate Change, the 1992 Convention to Combat Desertification, the Rio Declaration and Agenda 21
which includes a chapter on the protection of the oceans (chapter 17).
5 David Freestone,‘The Conservation of Marine Ecosystems under International Law’ in International
Law and the Conservation of Biodiversity (C.Redgwell and M. Bowman eds, 1995) 91-107 [94]
6
R.Jayakumar Nayar and David Mohan Ong, ‘Developing countries, development and the conservation
of biological diversity’ in International Law and the Conservation of Biodiversity (C.Redgwell and M.
Bowman eds, 1995) 235-253 [236]
Motivation behind the protection of marine biodiversity
The contention between developing and developed nations reflects the fundamental difficulty
encountered when building a case for the protection of biodiversity. While there is a general consensus
that there is an intrinsic value in protecting biological diversity, there is little scientific evidence that
demonstrates the benefits brought by biodiversity to ecosystem functioning and services.7 Although this
may be a hidden cause behind the lack of sufficient political will, the protection of biodiversity is
mentioned broadly. It even stands high in the corporate social responsibility positioning and statements
of large corporations and industries.8 This may have resulted partly from the very large coverage of the
topic in the popular press.
Legal definition of biological diversity
The Convention embraces a holistic view of biological diversity which is defined as the variability among
living organisms from all sources, including, among other things, terrestrial, marine and other aquatic
ecosystems and the complex ecological systems of which they are part: this includes diversity within
species, between species and of ecosystems.9 This definition thus includes species diversity10, genetic
diversity (generally referred to as genetic resources)11 as well as ecosystem diversity.12 However, as will
be examined below, the protection mechanisms envisaged in the Convention are based on a terrestrial
understanding of biodiversity and are ill-suited for marine biodiversity.
It must be noted that marine biodiversity concerns all marine living organisms, irrespective of their size
and potential commercial value. However, the legal regime may depend on the commercial value of a
species and whether it is subject to extractive uses.
7
P Balvanera et al. (2006) Quantifying the evidence for biodiversity effects on ecosystem functioning
and services, Ecology Letters 9: 1146-1156
8
To cite a few, IPIECA report on Key biodiversity questions in the oil and gas lifecycle industry
<http://www.ipieca.org/publication/key-biodiversity-questions-oil-and-gas-lifecycle>, ExxonMobil’s
statements on biodiversity and ecosystem services
<http://www.exxonmobil.com/Corporate/safety_env_biodiversity.aspx>, Shell’s report ‘Building
biodiversity business http://www.shell.com/global/environmentsociety/environment/biodiversity/shell-biodiversity.html and BP’s engagement with the monitoring of
marine biodiversity
<http://www.bp.com/sectiongenericarticle800.do?categoryId=9040206&contentId=7073349>.
9
CBD, article 2
10
Species diversity is the diversity among species present in the different ecosystems. This is the
diversity of populations of organisms and species and the way they interact.
11
Genetic diversity is the diversity of genes within a species and processes such as mutations, gene
exchanges, and genome dynamics that occur at the DNA level and generate evolution.
12
Ecosystem diversity encompasses genetic, species and ecosystem diversity of a given region. This is
the diversity of species interactions and their immediate environment.
Flexible language
Despite its binding nature, the language agreed on to describe coastal States obligations with respect to
biodiversity monitoring and conservation is not cast in the imperative. Statements of obligations are
preceded by: 'Each Contracting Party shall, as far as possible and as appropriate’ (...) 13 or 'Each
Contracting Party shall, in accordance with its particular conditions and capabilities'14. While the content
of the obligations provided for are not very detailed, they are nevertheless quite clear. They include the
development of national strategies, plans or programmes for the conservation and sustainable use of
biological diversity 15 , the identification, monitoring and prioritization of biological diversity, 16 the
establishment of a system of protected areas to conserve biological diversity17, the rehabilitation and
restoration of degraded ecosystems,18 the promotion of the recovery of threatened species and the
development and maintenance of necessary legislation19.
Terrestrial and marine biodiversity
The CBD encompasses both terrestrial and marine biodiversity and does not distinguish between them
in the measures it prescribes. This assimilation is unfortunate given fundamental differences that exist
between them. An example of this is the way in which the Convention focuses on species diversity and
areas of high endemism to determine areas where protection would be desirable. This understanding of
biodiversity is based on the knowledge acquired of terrestrial biodiversity at the time the convention
was being negotiated. A key difference between terrestrial and marine animals is that only 20% of
known species are in the ocean despite the far larger surface area oceans.20 Another key difference is
the ability of marine animals to disperse over a large geographical scales, unlike terrestrial animals.21
Such differences result in a very different representation of biodiversity in the marine realm where
speciation is generally low and endemism is uncommon, especially in pelagic communities (although
benthic communities present higher species diversity and endemism).22 Further, by contrast with
generally low species diversity in the pelagic ocean, higher orders of the taxonomic classification are
more represented in the ocean than on land: 28 phyla of animals can be found in the ocean against only
11 on land.23 Also, a region’s biodiversity may be significant at a regional scale although it does not
appear to be so at a local scale. Finally, all the publications concur that there is a lack of consistent and
13
For instance, CBD articles 7, 8, 9 and 10
Particularly CBD, article 6 which concerns conservation and sustainable use
15
CBD, article 6(a)
16
CBD, article 7(a) and Annex I
17
CBD, article 8(a)
18
CBD, article 8(f)
19
CBD article 8(k) and (l)
20
SR Palumbi (1992) Marine speciation on a small planet, Trends in Ecology and Evolution 7: 14-118.
21
However, this dispersion ability may be comparable to terrestrial plants wind dispersal.
22
MV Angel (1993) Biodiversity of the Pelagic Ocean, Conservation Biology 7:760-772
23
MV Angel Ibid [762]
14
large scale data necessary to fully understand the patterns of marine biodiversity, especially not in
Southeast Asia.24
In this context, the determination of areas to be protected is particularly complex and the guidance
provided by the CBD is insufficient to designate and prioritize areas for protection. Aware of this, the
Conference of the Parties (COP) to the CBD adopted scientific criteria for identifying ecologically or
biologically significant marine areas in need of protection (the EBSAs criteria) 25 and guidance for
designing representative networks of marine protected areas in open ocean waters and deep sea
habitats.26 While such guidance does not hold the same legal value as the Convention itself and does not
qualify as hard law, it constitutes valid guidelines adopted by the legitimate international authority for
this subject area. At the minimum, it is expected that such guidance be taken into account by State
Parties to fulfill their obligations under the Convention. However, it is noted that the scope of these
guidelines is for now limited to open ocean and deep-sea habitats within national jurisdiction. Though
States Parties are free to decide otherwise, they have no obligation to take these guidelines into account
for the implementation of the CBD to near-shore coastal ecosystems.
Distinctive features: obligations of identification, monitoring and reporting
With respect to the measures to be taken for the protection of biodiversity, the Convention does not list
which areas, ecosystems or species should be protected or prioritized. Instead it leaves the selection
process and management method to each party.27 However, the Convention provides for a clear positive
obligation of identification, monitoring and reporting.
Identification and monitoring are identified in the Convention as a prerequisite for conservation and
sustainable use. State Parties must identify and monitor components of biological diversity important
for its conservation and sustainable use having regard to the following indicative list:28
1. Ecosystems and habitats: ‘containing high diversity, large numbers of endemic or threatened
species or wilderness, required by migratory species, of social, economic, cultural or scientific
importance; or, which are representative, unique or associated with key evolutionary or other
biological processes;
2. Species and communities which are: threatened; wild relatives of domesticated or cultivated
species; of medicinal, agricultural or other economic value; or social, scientific or cultural
24
DCJ Yeo, JT Carlton, SLM Teo and PKL Ng (2011) An incoming flood on a cryptic stage: understanding
alien crustaceans invasions in Southeast Asia, in the wrong place – Alien marine crustaceans:
distribution, biology and impacts, invading nature, BS Gall et (al) (eds), Springer Series in Invasion
Ecology 6 [405-406]
25
COP Decision IX/20 Para 14 and Annex I
26
COP Decision IX/20 Para 14 and Annex II
27
CBD, article 8
28
CBD, article 7(a) and (b) and Annex I
importance; or of importance to research for the conservation and sustainable use of biological
diversity, such as indicator species; and,
3. Described genomes and genes of social, scientific or economic importance.
The obligation of identification and monitoring is not limited to the task of making an inventory of
biodiversity components. It includes processes and categories of activities which have or are likely to
have significant adverse impacts on the conservation and sustainable use of biological diversity.29
Furthermore, monitoring should focus on components of biodiversity in need of urgent conservation
measures and on those which offer the greatest potential for sustainable use.30
Finally, reporting is another mechanism which is emphasized in multilateral environmental conventions,
to foster compliance and limit the risk for dispute resolution mechanisms.31 The Convention provides for
the obligation of State Parties to report on measures taken for its implementation and effectiveness in
meeting its objectives.32 This mechanism, together with the obligation of monitoring, are necessary
steps to establish baselines of reference.
Prioritization
Identifying Ecologically and Biologically Significant Areas (EBSAs)
Annex I to the decision IX/20 of the COP to the CBD sets out the scientific criteria for identifying EBSAs in
need of protection and urges State Parties to apply them. The following seven criteria are identified33:
(1) uniqueness and rarity, (2) special importance for life history stages of species (3) threatened,
endangered or declining species and/or habitats, (4) vulnerability, fragility, sensitivity, slow recovery, (5)
biological productivity, (6) biological diversity; and, (7) naturalness. These criteria must be used to
prioritize biodiversity research (i.e. identification and monitoring) as well as conservation and
sustainable use.34
29
CBD, article 7 (c)
CBD, article 7(c)
31
The rational for this view is that reporting processes are a means to get ratifying States to do their
homework on the steps needed for proper implementation and be under peer-pressure to present an
honorable report. These processes thus foster spontaneous compliance. Through the sharing of national
practices and interpretations, they also facilitate harmonization in implementation. For a presentation
of the use of reporting mechanisms in environmental treaties to foster compliance, see Y Tanaka (2009)
Reflections on reporting systems in treaties concerning the protection of the marine environment,
Ocean development and international law, 40:146-170.
32
CBD, article 26
33
The criteria can be accessed on CBD website http://www.cbd.int/doc/decisions/cop-09/cop-09-dec20-en.pdf
34
CBD, article 7 (a) and (b)
30
Annex I also sets out the definition of each criteria, presents the rationale, provides examples and adds
some relevant consideration in application. While one criterion can be sufficient to justify that an area
be protected in priority; areas which meet several criteria should be preferred. Several criteria are also
similar in nature and likely to overlap (see for instance criteria 2 and 3).35 Coral reefs which (relatively to
others) would not present an exceptional biological diversity but would present a special importance for
other associated species (as a breeding ground for a threatened species for instance), are characterized
by a high biological productivity or are subject to high anthropogenic stresses such as overfishing, could
meet at least 3 criteria: special importance (criteria 2), threatened species (criteria 3) and biological
productivity (criteria 5).
An important feature of these provisions within the CBD is that they apply the same prioritization
criteria for identification, monitoring, conservation and sustainable use purposes. Unlike many other
sets of recommended criteria, the provisions of the CBD include sustainable uses in the enunciation of
conservation priorities, implying a definition of conservation which includes the possibility of using
resources (rather than a ban on all uses in conservation area). However, although the text of the CBD
acknowledges sustainable uses, the EBSA’s criteria are primarily focused on ecological criteria. They do
not include the socio-economic value of biodiversity as a criteria to consider in the setting of research
and conservation priorities. 36 They also ignore the political and institutional feasibility of the
implementation of the management measures they would point to.37
Designing networks of protected areas
Annex II presents a scientific guidance for selecting areas to establish a representative network of
marine protected areas (MPAs), including in open ocean waters and deep-sea habitats. This guidance
sets out the properties and components which a network of MPAs must meet in order to be successful.
35
For a detailed discussion of each criterion, refer to the report from the 2009 CBD workshop in Ottawa,
Canada, Defining ecologically or biologically significant areas in the open oceans and deep seas: analysis,
tools, resources and illustrations. Available online http://www.gobi.org/Library/gobi-literature/GOBI
Report 2009.pdf
36
The cultural value or universal importance of a site for present and future generations, which is a
criteria of the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural
Heritage, is not explicitly taken into account either (although such site might also meet one of the
ecological criteria (1037 UNTS 151 available online http://whc.unesco.org/archive/convention-en.pdf).
37
Several articles acknowledge this failure. See for instance, C B Schmitt (2009) A tough choice:
approaches towards the setting of global conservation priorities, in Biodiversity Hotspots, F E Zach’s and
J C Hubel (eds): 23-42 [26] and R M Warner et al. (2011) Designing criteria suites to identify discrete and
networked sites of high value across manifestations of biodiversity, Biodiversity and conservation 20 (14)
3363-3363
This network must first link ecologically and biologically significant areas, which are representative and
connected, and which include replicates of the same ecological features and adequate and viable sites.38
Four initial steps to be considered in the development of representative networks of marine protected
areas are set out in Annex III to Decision IX/20 of the COP to the CBD.39 They are (1) scientific
identification of an initial set of ecologically or biologically significant areas, (2) identification of a
biogeographic, habitat and/or community classification system, (3) iterative use of qualitative and/or
quantitative techniques to identify sites to include in a network; and, (4) assessment of the adequacy
and viability of the selected sites. 40
However, given the intensity in uses of marine ecosystems, the natural and anthropogenic stresses they
are facing and the rarity of pelagic species most coastal and marine ecosystems will meet at least one of
the EBSA criteria. Furthermore, the EBSA’s prioritization criteria are not the only one, which States must
follow. Other international conventions include other selection criteria designed to meet the objective
of each convention. For instance the 1972 UNESCO Convention for the protection of the world cultural
heritage focuses on natural sites of outstanding universal value from a different perspective41 while the
1971 Ramsar Convention on wetlands prioritizes wetlands of international importance to waterfowl.42
The responsibility to arbitrate and prioritize the areas selected according to the criteria is left to State
Parties. The degree of protection needed for each area is similarly left to the discretion of State Parties.
Protected areas: from no use to regulated uses
It is well known that the terms ‘MPA’ and ‘protected area’ bear a different meaning depending on the
context and on the rules which are applicable. Different definitions have been adopted in different
coastal States depending on the interests at stake. These include marine reserves, marine protected
areas, protected areas and marine parks. Some may have been created by an Act of Parliament. Others
have not. Some may depend from the central or federal government whereas others are under local
authorities. Some will ban any use of the sea, whereas others will limit certain uses only (such as specific
fisheries or anchorage) whether permanently or at certain times of the year. The legal standing of the
prohibitive rules and the compliance and enforcement mechanisms will vary accordingly. The need for a
minimum international consistency has led the IUCN to adopt an indicative classification as a
38
Annex II can be accessed on CBD website http://www.cbd.int/doc/decisions/cop-09/cop-09-dec-20en.pdf
39
Although the text of the decision does not acknowledge that Annex III was formally adopted by the
COP to the CBD, it takes note of this annex and urges the State Parties to apply it.
40
COP Decision IX/20 Para 18 and Annex I
41
See note 36 above.
42
1971 Convention on wetlands of international importance especially as waterfowl habitat, 14583
UNTS 996, available online http://www.ramsar.org/cda/en/ramsar-documents-texts-conventionon/main/ramsar/1-31-38%5E20671_4000_0__
reference.43 However, national practices are still diverse. Many publications highlight the frequent lack
of consistency in name and status of MPAs not only internationally and regionally but also nationally.44
Whilst it urges State Parties to designate Protected Areas, the CBD does not provide specific rules with
respect to the level of protection which may be required. Instead, it defines ‘Protected area” as a
geographically defined area which is designated or regulated and managed to achieve specific
conservation objectives. As previously mentioned, the Convention further directs State Parties to pursue
the sustainable use of their resources. As is apparent from this and from other publications made under
the auspices of the CBD, a protected area is not necessarily an area where all uses or all extractive uses
are forbidden. The Technical Advice on the Establishment and Management of a National System of
Marine and Coastal Protected Areas distinguishes ‘highly’ protected areas from other protected areas
and envisages the possibility to regulate uses within protected areas.45
However, such regulation falls outside the direct scope of the CBD. It needs to be considered within the
framework of the 1992 United Nations Convention on the Law of the Sea.46
Other modern principles of contemporary international environmental law
Although many environmentalists point out weaknesses in the text of the CBD which entered in the
course of the negotiations 47, the final text contains clear commitments to principles of modern
environmental law, especially to sustainable use of biological resources 48 , environmental impact
43
IUCN Protected Areas Categories System
http://www.iucn.org/about/work/programmes/gpap_home/gpap_quality/gpap_pacategories/
44
For instance, see: Do we really need 50 ways to say “Marine Protected Area”? Views on MPA
terminology and efforts to categorize MPAs (2007) MPA News Vol.8 No10
45
Ad Hoc Technical Expert Group on Marine and Coastal Protected Areas in 2004 [9], available online at:
http://www.cbd.int/doc/publications/cbd-ts-13.pdf
46
United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833
UNTS 3 (entered into force 16 November 1994) <http://cil.nus.edu.sg/1982/1982-united-nationsconvention-on-the-law-of-the-sea/>.
47
See for instance A Boyle (200) The Rio Convention on Biological Diversity, in International marine
environmental law: Institutions, implementation and innovations, ed. A Kirchner, Kluwer Law
International: 33-49 [37]. Boyle emphasizes that in the final draft, the precautionary principle moved
from the body of the convention to the preamble (which compromises the legal status of the statement),
the responsibility for damage to biodiversity was abandoned and there is no provision for global lists or
areas to be selected by the Conference of the Parties for conservation.
48
Sustainable use is defined in article 2 as ‘the use of components of biological diversity in a way and at
a rate that does not lead to the log-term decline of biological diversity, thereby maintaining its potential
to meet the needs and aspirations of present and future generations’. Article 10 of CBD provides for the
responsibilities of Contracting Parties with respect to sustainable use of components of biological
diversity.
assessment for projects that are likely to have significant adverse effects on biological diversity49 and
albeit solely in the preamble, to the precautionary principle50.
3. INTEGRATION OF THE CBD IN THE FRAMEWORK SET BY THE INTERNATIONAL LAW OF THE SEA
UNCLOS which provides for the rights and obligations of coastal States with respect to all uses of the sea
has been widely ratified in Southeast Asia51 and globally and is often described as the constitution of the
oceans. It is an open instrument which means that its application is not exclusive and on the contrary, is
often designed to be applied together with one or several other instruments.52 The CBD also contains a
specific reference to UNCLOS and provides that, with respect to the marine environment, it must be
implemented consistently with the rights and obligations of States under UNCLOS.
Maritime zones and functional uses
Under UNCLOS, the rules applicable to the protection of the marine environment differ depending on:
(i) The location in the water column or on the seabed/in the sub-soil;
(ii) The maritime zone it is located in;
(iii) The nature of the sea use, which adversely affects it.
Firstly, this is because UNCLOS divides the seas in different maritime zones which extend seaward from
the coast and where coastal States and other States have different rights and obligations. The main
features of each zone with respect to the protection of the marine environment are set out below.
Secondly, UNCLOS also established user rules for different legitimate uses of the sea: fisheries, shipping,
marine scientific research, etc. The main rules which are relevant in the context of marine biological
diversity are highlighted below for each maritime zone.
Ocean space under coastal States’ sovereignty
The only ocean spaces where coastal States have full sovereignty are internal waters and the territorial
sea. Internal waters include the intertidal zones, some bays and sea areas located landward of the
49
CBD, article 14(1)(a)
The preamble notes that it vital to anticipate, prevent and attack the causes of significant reduction or
loss of biological diversity at source and that where there is a threat of significant reduction or loss of
biological diversity, lack of full scientific certainty should not be used as a reason for postponing
measures to avoid or minimize such a threat.
51
UNCLOS has been ratified by all the States of Southeast Asia except Cambodia
52
In addition to the direct reference to other international rules and standards made for instance in
articles 208 and 210 of UNCLOS, article 311 organizes the relationship between UNCLOS and other
international instruments agreed on between States Parties.
50
territorial sea baseline and extend up to it.53 As a general rule, this baseline is the low-water line along
the coast as marked on large-scale nautical charts officially recognized by the coastal State.54 The
territorial sea extends 12 nautical miles from the territorial sea baseline.55 It follows that within this zone,
the study, exploitation and protection of marine life is under the exclusive jurisdiction and full
sovereignty of the coastal State.56
However, it must be noted that despite the general sovereignty of coastal States over their territorial
sea, other States have a right of innocent passage. This right would need to be taken into account if the
coastal State was to consider shutting an area to navigation and all other ocean uses to protect its
marine biodiversity.57 Publication of the measures would be a minimum required for such measures to
be legal.58
Archipelagic States59 such as the Republic of Indonesia and the Philippines have archipelagic water
between the islands, up to the outer archipelagic sea baseline.60 In their waters, the archipelagic States
have full sovereignty but must not impede on the right of other States to navigate through their
archipelagic sea on sealanes of passage and to exercise their right of innocent passage.
To the extent that coastal States respect the navigation rights of other States in their territorial sea and
archipelagic waters, coastal States can take the measures they consider the most appropriate to manage
the uses of the sea and protect marine biodiversity.
53
UNCLOS, article 8
UNCLOS, article 5
55
UNCLOS, article 3
56
UNCLOS, article 21(1)(f) expressly provides for this.
57
Article 22 of UNCLOS determines the restrictions which the coastal State can impose on foreign ship
exercising their right of innocent passage. Whilst it can request foreign ship to use sea lanes and traffic
separation schemes it may design. While the coastal State can adopt laws and regulations with respect
to the protection of the living resources of the sea and the preservation of the marine environment, it
cannot impose requirements with respect to the design, construction, manning or equipment of foreign
ship unless they are giving effect to generally accepted international rules and standards (article 21(2)).
58
UNCLOS, articles 21(1)(f), 21(3) and 22(4).
59
An archipelagic State means a State constituted wholly by one or more archipelagos and may include
other islands. An archipelago means a group of islands, including parts of islands, interconnecting waters
and other natural features which are so closely interrelated that such islands, waters and other natural
features form an intrinsic geographical, economic and political entity, or which historically have been
regarded as such. (UNCLOS article 46).
60
UNCLOS Part IV on archipelagic States; article 47 provides for the rules applicable to determine
archipelagic baselines.
54
Continental shelf and exclusive economic zone
The rights of coastal States in the exclusive economic zone and of the continental shelf are far more
limited than in the territorial sea. The particular legal regime of these two maritime zones applies to the
benthic life which is present in and on the seabed and in the water column up to 200 nautical miles 61
from the territorial sea baseline.62 These zones do not belong to the coastal State but the coastal State
has sovereign rights for the exploration, exploitation, conservation and management of these zones’
natural resources, both living and non-living.63 In exercising their rights, coastal States must however
have due regard to the rights and duties of other States, and vice versa.64 These include the freedom of
navigation, the freedom of laying submarine cables and pipelines and other internationally lawful
freedoms of the sea.65
Straits used for international navigation
These straits, which can cut through territorial seas, are subject to a discrete set of rules where coastal
States’ rights under the general rules are restricted to ensure continuous and expeditious transit of the
strait.66
With respect to the prevention, reduction and control of pollution, States bordering straits may adopt
laws or regulations which give effect to applicable international regulations regarding the discharge of
oil, oily wastes and other noxious substances.67 With respect to fishing vessels, they can prevent fishing
including the stowage of fishing gear.68
61
The outer edge of the continental shelf can be extended beyond 200 nautical miles up to 350 nautical
miles from the territorial sea baseline or 100 nautical miles from the 2,500 metre isobath, which is the
line connecting the depth of 2500 metres, according to article 76 of UNCLOS.
62
UNCLOS Part V on the exclusive economic zone and Part VI on the continental shelf.
63
UNCLOS article 56(1)(a)
64
UNCLOS, article 56(2) provides for the obligation of due regard of coastal States. Article 58(3) provides
that other States must also have due regard to the rights and duties of the coastal State and comply
with the laws and regulations adopted by the coastal State in accordance with UNCLOS and other rules
of international law.
65
UNCLOS, article 58(1)
66
Article 34 and followings in Part III of UNCLOS deal with the special regime designed for such straits.
Article 38 defines and establishes the right of transit passage.
67
UNCLOS, article 42(1)(b)
68
UNCLOS, article 42(1)(c)
Seabed and oceans beyond national jurisdiction
The approach to each of these two zones (respectively the Area and the High Sea) which are mostly
adjacent to each other is opposite.69 Whereas the use of resources of the High Sea is governed by the
paramount freedom of fishing70, the Area and its resources are the common heritage of mankind and as
such all exploration and exploitation of its resources can only occur under the supervision of the
International Seabed Authority.
With respect to marine biological diversity, the commonality between these two zones is that they are
located beyond national jurisdiction and as such fall outside the scope of the 1992 Convention on
Biological Diversity especially with respect to the obligation to monitor and create marine protected
areas.71 Except for the general obligations to protect the marine environment provided for in UNCLOS72
including rare or fragile ecosystems as well as the habitat of depleted and threatened species and other
forms of marine life73, bio-prospecting is not restricted in the High Sea or in the Area.74
Marine scientific research (MSR)
In order to encourage and foster collaborative marine research and data sharing, the conduct of MSR is
subject to a distinct set of rules under UNCLOS, Part XIII.75 These are completed with special rules
provided for different maritime zones in the relevant section of the convention.
69
When a continental shelf goes beyond the 200nm limit (calculated from the territorial sea baseline),
the water column located above the surface area of the shelf located beyond the 200nm limit is not the
exclusive economic zone but the High Sea. In such a situation, whereas the coastal States has exclusive
rights of protection, exploration and exploitation of living and non living resources in and on the shelf,
the freedom of the high seas including the freedom of fishing and bio-prospecting, apply in the water
column super adjacent to the shelf.
70
However, this freedom is tempered in UNCLOS Chapter VII on the High Sea. The second section, titled
Conservation and Management of Living Resources of the High Sea, provides for an obligation of
conservation of living resources as a corollary to the freedom of fishing (articles 117 to 119). It also
includes an obligation of States to cooperate to that effect.
71
However, nationals of State parties (such as vessels flying their flags) are bound by their national
legislation, which may include laws and regulation for the protection of the marine environment.
72
UNCLOS, article 192
73
UNCLOS, article 194(5)
74
For the regulation of uses of marine biodiversity on the outer continental shelf, see J Mossop (2007)
Protecting marine biodiversity on the continental shelf beyond 200 nautical miles, Ocean Development
and International Law Vol 38-3: 283-304. For a policy discussion on the race for marine biodiversity
patenting in areas beyond national jurisdiction and the idea of pool licensing, see S Arnaud-Haond, J M
Arrieta and C M Duarte (2011) Science Vol.331: 1521-1522.
75
However, it must be noted that MSR is not defined in UNCLOS and that there is a debate as to
whether hydrographic surveys are distinct from MSR and should thus be excluded from the MSR regime.
In the territorial sea, which falls within the exclusive jurisdiction and sovereignty of the coastal State, the
situation is straightforward. The coastal State has discretionary powers to authorize or deny MSR by
other States in this zone.76 MSR conducted in the water column of an exclusive economic zone or in the
seabed or subsoil of a continental shelf is subject to a more nuanced set of rules. While consent has to
be sought from the coastal State, the latter has no discretion to deny access provided that the MSR is for
peaceful purposes and is designed to increase scientific knowledge of the marine environment for the
benefit of humankind.77 Genuine field research on marine organisms or ecosystems which would
perform the CBD obligation of inventory and monitoring of marine biodiversity would qualify as such
MSR over which the coastal State has no discretionary power to withhold consent.
However, if the MSR is not for ‘pure research’ (i.e. for peaceful purposes and designed to increase
scientific knowledge of the marine environment for the benefit of humankind) but rather is of direct
significance to the exploration and exploitation of natural resources and/or involves drilling into the
continental shelf, the coastal State may withhold its consent.78 Arguably, bio-prospecting for new marine
genes would fall within this research category and would thus not qualify as ‘pure research’.
In Straits used for international navigation, no research or survey activities can be carried out during
transit passage without the authorization of the bordering States.79 Whether the coastal State has
discretionary power to deny authorization will depend on the maritime zone concerned within the
Straits. By contrast, MSR carried out in the water column beyond the exclusive economic zone, namely
in the High Sea, is permitted to all.80
4. APPLICATION TO MARINE BIOLOGICAL DIVERSITY IN THE SEAS OF SOUTHEAST ASIA
A distinctive feature of the protection of biodiversity and more generally the marine environment in the
seas of Southeast Asia is that coastal States have not entered into any binding regional seas
Some authors consider that UNCLOS’ provisions on MSR only apply to some but not all forms of data
collection in the marine environment. For a presentation of the issue, see Yang Fang (2010) Exclusive
Economic Zone (EEZ) regime in East Asian waters: Military and intelligence-gathering activities, Marine
Scientific Research (MSR) and hydrographic surveys in EEZ, RSIS Working Paper No198. See also the
views of J.A.Roach (2007) Defining Scientific Research: Marine Data Collection; 30, Centre for Ocean Law
and Policy 541-573 and S Bateman (2005) Hydrographic surveying in the EEZ: differences and overlaps
with marine scientific research, Marine Policy 29: 163-174
76
UNCLOS, articles 21 and 245
77
UNCLOS, articles 246(3) and 56(1)(b)(ii)
78
UNCLOS, article 246(5)(a) and (b). For a complete discussion on MSR, see P Birnie (1995) Law of the
sea and ocean resources: implications for marine scientific research, the international journal of marine
and coastal law, 10-2:229-251.
79
UNCLOS, article 40
80
UNCLOS, article 257
agreement,81 unlike other regions of the world. By contrast, the coastal States of the North Atlantic
(through the OSPAR commission) or the South Pacific (South Pacific Regional Environmental
Programme) have entered into regional seas agreements. 82 In such a situation, information on
biodiversity and marine living resources and the legal, policy and institutional framework are more
integrated.
In Southeast Asia, the only hard law applicable throughout the regions’ seas flows from international
treaties ratified by all States, namely UNCLOS83 and the CBD.84 These constitute the legal framework for
the large and diverse number of marine management programs and initiatives focusing on a few species,
a coast or sea area or a polluting activity.85 Such initiatives or programmes are often coupled with
substantial investments and engagement by international organizations (particularly UNEP and UNDP)
and non-governmental organizations as well as national public entities acting at local or national level.
Some also involve private entities, such as members of the oil and gas industry. Many overlap yet
numerous gaps remain.86 This diverse institutional and legal landscape results in a fragmented legal and
institutional governance framework at regional level and points to the importance of the underlying
legal framework as a guide for consistency.
The above discussion on the CBD has shown that actions to be taken by coastal States can be divided
into two main categories; first, inventorying and monitoring, and second, protecting. The way in which
81
While it is not legally binding on States, the 2002 Declaration of Conduct of Parties in the South China
Sea must be mentioned. It has been adopted on 4 November 2002, by the Foreign Ministers of ASEAN
and the People’s Republic of China at the 8th ASEAN Summit in Phnom Penh (accessible online at
http://cil.nus.edu.sg/rp/pdf/2002 Declaration on the Conduct of Parties in the South China Sea-pdf.pdf).
It has been negotiated to enhance favourable conditions for peaceful and durable solution of
differences and disputes among countries concerned.
82
Other regions show different models of sectoral integration, primarily for fisheries (e.g. the Western
and Central Pacific Fisheries Commission or the Pacific Islands Forum Fisheries Agency (FFA); The latter
focuses on tuna fisheries).
83
Except Cambodia
84
Coastal States generally appear to prefer an ‘Asian way’ focused on regional cooperative mechanisms
for the implementation of international instruments on environmental protection (Koh K.L. and N.A.
Robinson (2002) Strengthening sustainable development in regional intergovernmental governance:
lessons from the ‘ASEAN Way’, Singapore Journal of International and Comparative Law, 6:640-682).
85
Vo Si Tuan and J. Pernetta (2010) Ibid, describe many of these initiatives and call for regional
cooperation in order to improve marine management. A. Tengberg also highlights the disorganization in
the many on-going transboundary initiatives for the management of the marine environment of
Southeast Asian seas and their overlap (2009) Overview of regional transboundary initiatives, projects
and programmes for the Seas of Southeast Asia: status and funding opportunities, EAS Congress, 23-27
Nov.
86
Vo Si Tuan and J. Pernetta (2010) The UNEP/GEF South China Sea Project: Lessons learned in regional
cooperation, Ocean and Coastal Management 53: 589-596.
UNCLOS’ jurisdiction rules apply to the directions given by the CBD and the recommendations adopted
by its bodies are discussed below.
Identifying EBSAs, sampling, reporting and monitoring
The text of the CBD and related soft laws adopted by bodies of the convention provide a clear obligation
of inventorying biodiversity, monitoring and reporting and guidance in the method to be followed to
identify EBSAs (page 9 above). The jurisdictional framework is provided by UNCLOS through the
provisions on marine scientific research. In the context of marine biodiversity in Southeast Asia, two
specific features merit particular attention. First, the difficulties created by the maritime boundary
disputes and second, the challenges presented by the unique combination of characteristics of marine
biodiversity of Southeast Asia.
Maritime boundary disputes in South East Asia
However, the application of UNCLOS’ rules on the jurisdiction and powers of coastal States to carry out
marine scientific research is more complex in ocean spaces and continental shelf areas which are subject
to overlapping maritime claims.87 In such situations, claimant States must refrain from acting in a way
that may hamper or jeopardize the reaching of a final agreement.88 Provided that MSR is carried out
purely for biodiversity sampling, inventorying and monitoring, a pragmatic view would be that the
coastal State can unilaterally proceed with MSR provided that: (i) the MSR is carried out by a coastal
State in its alleged exclusive economic zone or continental shelf on the basis of a legitimate claim (rather
than abusive), claim89, (ii) the MSR qualifies as ‘pure research’90, (iii) the MSR is publicly executed or at
the minimum is fully disclosed to other claimants; and, (iv) the results of the MSR are also made public
or communicated to other claimants.91
87
For a presentation of the overlapping maritime boundaries claims in the SCS, see M Valencia, J Van
Dyke and N Ludwig, Sharing the Resources of the South China Sea (Martinus Nijhoff Publishers, 1997)
88
UNCLOS, articles 74 and 83
89
According to UNCLOS and international law
90
See above section on Marine Scientific Research page 15.
91
Such approach applies the ruling made by the arbitral tribunal in charge of the Guyana v. Surinam case
on 27 September 2007: http://www.pca-cpa.org/showpage.asp?pag_id=1147. The Arbitral Tribunal
highlights that the obligation to not hamper or jeopardize the final agreement is not intended to
preclude all activities in a disputed maritime area [para.465]. The Tribunal further considered that
‘unilateral acts which do not cause a physical change to the marine environment’ would be acceptable.
This position is further consistent with the International Court of Justice’s decision in the Aegean Sea
between Greece and Turkey, which distinguishes between activities of a transitory character and
activities that risk irreparable prejudice to the position of the other party. [para.468].
However, a conservative or precautionary approach to this rule to avoid jeopardizing or hampering the
conclusion of an agreement, together with the general principle that consent of the coastal State must
be sought if a State is seeking to undertake MSR in another State’s exclusive economic zone or
continental shelf92, would recommend seeking the approval of or invitation to participate in, the MSR all
the claimant States. The preferred official approach to date has been the joint-organization of MSR by all
claimants as is evidenced by the terms of the 2002 Declaration of Conduct of Parties in the South China
Sea (DOC)93 which states that concerned parties may undertake cooperative activities, including marine
environment protection and MSR.94 However, most bordering States to the SCS appear to have carried
some MSR in areas subject to overlapping claims and China is announcing more unilateral surveys to be
completed by 2016.95
Unique characteristics of marine biodiversity in Southeast Asia
Mapping the marine biodiversity of Southeast Asia is a complex process which challenges the mapping
methods established in temperate marine systems. Essential differences between the identification and
monitoring of temperate marine systems of the developed world and tropical marine systems of
Southeast Asia are, first, the scale of diversity and abundance96, and, second, the lack of human and
financial resources and political impetus devoted to that task.97
The very high marine biodiversity of Southeast Asia is well-known and often commented on. Marine
ecologists and phylogeographers do not hesitate to designate the region as the ‘Centre of Maximum
Marine Biodiversity’98. It holds the largest coral reef coverage in the world (28%)99 and almost half of the
92
See above, page 12
See above note 81
94
Of note is the fact that the DOC does not specify the area in dispute within which the code of conduct
should apply.
95
For a presentation of the efforts up to 2000, see E Gomez (2001) Marine scientific research in the
South China Sea 32: 205-211. See also the recent coverage of China’s announcement to survey maritime
territories in B Das, China to Survey Disputed Marine Territories, IDN-In-depth News Analysis 14 January
2013, accessible online at http://www.indepthnews.info/index.php/global-issues/1380-china-to-surveydisputed-marine-territories.
96
ML Reaka and SA Lombardi (2011) Hotspots on global reefs, in Biodiversity Hotspots, FE Zachos and JC
Habel (eds), 471-501 [474-475]
97
NS Sodhi et al. (2010) The state and conservation of Southeast Asian biodiversity, Biodiversity
Conservation: 317-328. While this article focuses primarily on terrestrial biodiversity, its observations on
terrestrial habitat losses parallel the observations made by marine ecologists for threats on marine
habitats (see ML Reaka and SA Lombardi, note 96 above).
98
BW Hoeksema (2007) Delineation of the Indo-Malayan centre of maximum marine biodiversity: the
coral triangle, in Biogeography, time and place: distributions, barriers, and islands, W Renema (ed): 117178
99
Coral reefs at risks revisited http://pdf.wri.org/reefs_at_risk_revisited.pdf [16]
93
world’s coral reefs’ species.100 However, research and publications focus primarily on coral reefs, edible
fauna and macro-fauna.101 Furthermore, Yeo et al. emphasize that the current knowledge of biodiversity
in Southeast Asia is largely limited to taxonomic knowledge and does not extend or translate to
knowledge of faunistic history.102 In addition to a limited historical baseline, the fact that the region has
been exposed to international shipping for centuries make it difficult to determine whether a newly
identified specie is native to the area it has been found in or has been introduced by anthropogenic
activities.103 In such a context, the needed and pragmatic research prioritization which is designed to
determine the allocation of research resources, will also determine aspects or areas deemed as not
having priority. The repercussions of this trivial observation are particularly great in a situation where
research prioritization is based on limited knowledge.
Another critical characteristic of marine biodiversity in Southeast Asia is its largely transboundary nature,
due to the geography of the seas of Southeast Asia. UNCLOS provides for an obligation of cooperation
between States bordering enclosed and semi-enclosed seas. Bordering States must coordinate the
management, conservation, exploration and exploitation of the living resources of the sea. They must
coordinate the implementation of their rights and duties with respect o the protection and preservation
of the marine environment. They must also coordinate their scientific research policies and undertake
joint programmes where appropriate.104
Thus, not only have the coastal States of Southeast Asia an obligation to scale up implementation of the
CBD with respect to identification, monitoring and conservation of biodiversity. They also need to
cooperate on this path. With respect to marine scientific research, coordination translates first in the
creation of a common understanding of marine biodiversity among the bordering States concerned. This
involves the creation of a joint repository or shared databases which in turn would require research to
be documented according to compatible standards, compatible if not common research protocols to be
established, and identical data fields to be informed.105 Such data compilation and collection for
100
CR Wilkinson (2008) Status of coral reefs of the world, Australian Institute of Marine Science,
Townsville and Coral reefs revisited Ibid [53]
101
Proceedings of the workshop on marine ecosystems and biodiversity: Cooperative project under the
ASEAN-China declaration on the conduct of the parties in the South China Sea, especially introduction by
Peter Ng, 31st July-4th August 2012, Singapore
102
Ibid
103
Yeo et al., see note 24 above [405] and JT Carlton (2009) Deep invasion ecology and the assembly of
communities in historical time, in G.Rilov and JA Crooks (eds) Biological invasions in marine ecosystems,
Ecological Studies 204: 13-56
104
UNCLOS, article 123
105
While there is to date no agreed standard for Southeast Asia, several have been developed by
different groups. The Darwin Core standards developed by the Biodiversity Information Standards
(TDWG) is an example (http://rs.tdwg.org/dwc/index.htm). Further, the phylogeography of Southeast
Asia, the proximity of Australia’s’ tropical marine ecosystems and the general accessibility of Australia’s
scientific and regulatory processes make Australia a potential source of standards to be used as a guide.
Southeast Asia is critical to improve the representation of marine biodiversity of Southeast Asia in global
databases of biodiversity.106
Protecting against extractive uses and pollution
Protected areas, maximum sustainable yield and sustainable uses
The CBD approaches the protection and conservation of biodiversity from two angles. First it provides
for the creation of protected areas organized in one or several networks and emphasizes the importance
of protection of ecosystems and habitats rather than species.107 Secondly, it invites the State parties to
ensure that the biological resources are sustainably managed and the text makes clear that such
sustainable uses may occur within or outside protected areas.108 However, no further indication is
provided to determine the condition for a use to be considered sustainable.
While UNCLOS does not provide any specific rules related to the establishment and management of
protected area, it regulates States’ obligations with respect to extractive uses of living resources in
details. However, at the time UNCLOS was negotiated, the term ‘sustainable use’ was not yet in use.
Instead, the text of the convention relies on the notion of optimum utilization of the living resources.109
It provides for an obligation to maintain or restore populations of harvested species at levels which can
produce the maximum sustainable yield.110 It also provides for the obligation to ensure, through proper
conservation and management measures that the maintenance of the living resources in the exclusive
economic zone is not endangered by over exploitation.111 Thus, it can be said that this requirement of
optimum utilization is consistent with the notion of sustainable use.
Another very relevant set of provisions in the context of the protection of marine biodiversity in
Southeast Asia is the fact that most of the seas of Southeast Asia112 are enclosed or semi-enclosed seas.
This results in mostly shared resources between bordering States as, in addition to migratory species,
many living organisms straddle areas under different national jurisdiction. For living resources that occur
within the exclusive economic zone of two or more States, these States have an obligation to agree
upon the measures necessary to coordinate and ensure the conservation and development of these
See for instance the Guidance for the assessment of environmental factors, Environmental Protection
Authority http://epa.wa.gov.au/EPADocLib/1839_GS51.pdf.
106
See for instance the Ocean Biogeographic Information System (OBIS): http://www.iobis.org. Sharing
of data and knowledge on marine biodiversity in the South China Sea was the purpose of the workshop
organized in Singapore on 31st July-4th August: Cooperative project under the ASEAN-China declaration
on the conduct of the parties in the South China Sea.
107
CBD, article 8(f)
108
CBD, article 8(c) and (i)
109
UNCLOS, article 62(1)
110
UNCLOS, article 61(3)
111
UNCLOS, article 61(2)
112
The South China Sea, the Gulf of Thailand, the Sulu-Celebes Sea and the Java Sea.
resources, whether directly or through subregional or regional organizations.113 While some coastal
States have signed species specific Memoranda of Understanding for the management of some
migratory species,114 this concerns only few States and few species. Notably, the 1995 United Nations
Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks has only been ratified by Indonesia.115 This implementation agreement of UNCLOS is precisely
designed to improve the management of shared marine living resources. There is a need for clearer
commitment among bordering States of the enclosed seas of Southeast Asia to manage the shared living
resources including marine biodiversity.
Pollution
With respect to the protection of biodiversity from other sources such as pollution from shipping,
installations and structures or other uses of the sea, UNCLOS provides strict obligations to minimize
pollution sources.116 Many of these provisions have been supplemented by specialized international
treaties, especially with respect to shipping pollution and dumping at sea.117 In addition to this body of
rules which are designed to limit the extent of pollution sources, a sea area which presents particular
ecological features and shows particular vulnerability to specific pollution sources can be submitted to a
more constraining set of anti-pollution rules.118 In the context of EBSAs, the obligation provided by the
113
UNCLOS, article 63(1) and (2)
2001 Memorandum of Understanding (MoU) on the conservation of marine turtles and 2007 MoU on
the conservation of dugongs. These MoUs were negotiated under the auspices of the 1979 Convention
on the Conservation of Migratory Species of Wild Animals and signed by some States of Southeast Asia
despite them not being a party to the main convention.
115
2167 UNTS 3, available online <http://cil.nus.edu.sg/rp/il/pdf/1995 Agreement for UNC on Law of
Sea Relating to Conservation of Fish Stocks-pdf.pdf>
116
UNCLOS defines pollution widely as the introduction by man, directly or indirectly, of substances or
energy into the marine environment, including estuaries, which result or is likely to result in such
deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to
marine activities, including fishing and other legitimate uses of the sea, impairment of quality of use of
sea water and reduction of amenities (article 1(4)). Articles 207 to 222 provide for specific obligations
with respect to pollution from land-based sources, pollution from sea-bed activities subject to national
jurisdiction, pollution from activities in the Area, pollution from dumping, pollution from vessels and
pollution from and through the atmosphere.
117117
Most notably, this includes the 1973/1978 International Convention for the Prevention of Pollution
from ships (MARPOL <http://treaties.un.org/doc/Publication/UNTS/Volume 1340/volume-1340-I-22484English.pdf>) and the 1972 London Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter and its 1996 Protocol (ibid note 3).
118
See particularly the example of Special Areas under MARPOL where the amount of oil discharge
allowed is further limited and of Particularly Sensitive Sea Areas (PSSA) which can be designated by
costal State under the purview of the International Maritime Organization (2005 IMO Assembly
Resolution A.982(24)). In PSSAs, compulsory special measures can include areas to be avoided or non114
CBD of monitoring activities which have or are likely to have significant adverse impacts on the
conservation and sustainable use of biological diversity, may assist in the selection of areas for
protection.
Also relevant to the protection of biodiversity are UNCLOS provisions with respect to pollution from the
introduction of alien species to a particular part of the marine environment.119 These provisions have
also been complemented by the 2004 Ballast Water Management Convention (2004 BMW)120 for alien
species transported via ballast waters. This convention is of particular relevance in the context of the
protection of marine biodiversity. However, it is not in force yet and is yet to be ratified by most States
of Southeast Asia.121 More recently, in 2011, the IMO also adopted Guidelines for the Control and
Management of Ships’ Biofouling to Minimize the Transfer of Invasive Aquatic Species. 122 These
guidelines are not legally binding at this stage but will become so once, as is projected by the IMO, they
have been embodied in a new treaty which has been in turn ratified and has come into force.
However the implementation of these new rules present many difficulties faced by marine researchers,
the shipping industry and ports’ control authorities. There is of course the difficulty of determining
whether marine species brought through ballast water or fouling are (i) clearly identified, (ii) new to the
marine ecosystem they are brought in; and, (iii) potentially invasive or detrimental to that ecosystem.
Beyond these difficulties, another key problem presented by these new regulations is the onerous
burden of compliance and treatment that it creates not only for the large transoceanic vessels but also
for the local shipping transit. However, there is also an opportunity for Southeast Asia to create a
derogatory regime for traffic within areas of compatible ecosystems on the basis of a lesser risk of an
alien invasive species settling and being detrimental.123 Conversely, areas considered to be of important
ecological value, distinct nature and particular vulnerability to species from even geographically close
ecosystems, may be subject to heightened constraints. 124 However, such treatment of a given
geographical zone requires sound science justifying the measures proposed. The lesson from this is that
there is a need to first obtain and then understand biodiversity baselines across Southeast Asia.
anchoring areas, depending on the vulnerability of the ecosystem under protection. However, it must be
noted that the general rules provided by MARPOL need to be fully complied with in Southeast Asia,
before Special Areas can be usefully designated.
119
UNCLOS, article 196(1)
120
2004 International Convention for the Control of Management of Ships’Ballast Water and Sediments,
opened for signature 13 February 2004 IMO Doc BMW/CONF/36 (not yet in force)
<http://cil.nus.edu.sg/2004/2004-international-convention-for-the-control-and-management-of-shipsballast-water-and-sediments/>.
121
Malaysia acceded to the Convention in 2010.
122
MEPC 207(62) – The guidelines are available through the IMO website
<http://www.imo.org/blast/blastDataHelper.asp?data_id=30766&filename=207...>
123
2004 BWM, annex, section A, regulation A-4 (on exemptions)
124
2004 BMW, annex, section C (on special requirements in certain areas)
5. CONCLUSION AND RECOMMENDATIONS FOR MARINE RESEARCHERS
It is common knowledge that the coastal States of Southeast Asia are struggling to implement and
comply with (if not ratify) generally accepted global conventions designed to protect the marine
environment. Among these, the most obvious example of a key convention in need of ratification in
Southeast Asia is the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks
and Highly Migratory Fish Stocks. With respect to widely ratified conventions in need of improved
implementation, the 1973/78 International Convention for the Prevention of Pollution from ships
(MARPOL) would be a critical first step before more protective measures can be taken in particularly
sensitive and valuable sea areas.
Nevertheless, coastal States of the seas of Southeast Asia have already made, in the CBD, a legal
commitment to inventorize, monitor and protect the biological diversity located within their jurisdiction
according to the legal regime established primarily by the CBD and UNCLOS combined. Given the
transboundary nature of most marine biodiversity of Southeast Asia, coastal States also have an
obligation to coordinate the management and conservation of the living resources of the sea, of the
protection and preservation of the marine environment and of their scientific research. Such an
obligation to coordinate and cooperate also applies to the identification, monitoring, conservation and
sustainable use of the transboundary marine biodiversity of Southeast Asia, including Ecologically and
Biologically Significant Areas (EBSAs).
In this respect marine researchers have an opportunity to play a key role and accelerate policy making
for an improved conservation and management of marine biodiversity not just at a national scale but at
a regional and even global scale. The means would be to document information, key to the adoption of
appropriate management measures for the ecosystems they are studying. This information can be
divided into two broad categories. The first category of information is aimed at determining the legal
regime of the biodiversity under study: the distance of the habitat or ecosystem or specie assemblage or
group of individuals or individual specimens to the closest coastline, whether the organisms remain in or
on the seabed, are at all time in the water column or both; and whether they are migratory, transient or
resident and confined to a specific and geographically defined habitat. Additional information includes
the geographic range, the ecosystem they are attached to, and the uses of the seas which interfere or
threaten their life cycle. The second category of information pertains to the standardization of research
protocols and documentation across Southeast Asia with a view to creating a joint repository or
shared databases.