Over the last decades, the Arctic environment as a whole altered dramatically due to the impacts of climate change. Troubling rates of Arctic sea ice melt—with a projected ice-free summer in mere decades—may allow for unprecedented economic activity, such as a rise in navigation via the emerging Arctic Sea Routes, as well as the extraction of offshore living and nonliving resources. Considered to be one of Earth’s final pristine ecosystems, the Arctic’s unique marine ecosystem also boasts a wealth of nonliving resources. The region holds incredible biodiversity and supports adaptive capacities for species in extreme environmental conditions. Amid new optimism regarding commercial conquests, the marine ecosystem critical to Arctic species resilience is at risk. The following chapter, developed from our previously published article “Legal Instruments for Marine Sanction in the High Arctic,” reviews the rationale for protecting marine biodiversity in Arctic waters and examines the existing legal framework for marine protected area creation, as well as its limits. Specifically considering the challenge of protecting marine life in the High Arctic area beyond national jurisdiction (ABNJ), the chapter first critically examines the call for an “Antarctic modeled” legal designation for the entire Arctic high sea area as a marine protected area, concluding the idea to be largely impractical for the geographically and politically dissimilar pole. Next we examine three other potential legal mechanisms for MPA creation in Arctic’s areas beyond national jurisdiction: an UNCLOS implementing agreement, an additional protocol to the UNCBD, and a regional agreement. Based on our analysis, we argue that a complementary, regional legal regime for MPA creation in the High Arctic would offer a pathway to adequate protection while being more politically feasible than other alternatives.
Governance and Legal Frameworks
Biodiversity underpins ecosystem services. The UN Convention on Biological Diversity (CBD) has adopted an ecosystem services approach as a framework for biodiversity management at the national level. Protection of ecosystem services requires far more than traditional nature conservation measures like the designation and management of protected areas. The economic sectors that affect biodiversity and ecosystem services must be involved, to address not merely the symptoms but the root causes of the degradation of biodiversity and ecosystem services. Achieving coherence in policies and actions across economic sectors and the changes involved in values, decision-making and practices, requires legal approaches to ensure buy-in and accountability. Ideally, such approaches should be included in National Biodiversity Strategies and Action Plans (NBSAPs), the key instrument for translating the CBD into national action. A review of 20 revised NBSAPs shows that such measures have been introduced only to a very limited extent with many countries still in the earliest stages of preparing measures to protect ecosystem services. Thus, there is a need for further research and practical guidance regarding legal approaches to ecosystem services.
A growing field of sustainability science examines how environments are transformed through polycentric governance. However, many studies are only snapshot analyses of the initial design or the emergent structure of polycentric regimes. There is less systematic analysis of the longitudinal robustness of polycentric regimes. The problem of robustness is approached by focusing not only on the structure of a regime but also on its context and effectiveness. These dimensions are examined through a longitudinal analysis of the Great Barrier Reef (GBR) governance regime, drawing on in-depth interviews and demographic, economic, and employment data, as well as organizational records and participant observation. Between 1975 and 2011, the GBR regime evolved into a robust polycentric structure as evident in an established set of multiactor, multilevel arrangements addressing marine, terrestrial, and global threats. However, from 2005 onward, multiscale drivers precipitated at least 10 types of regime change, ranging from contextual change that encouraged regime drift to deliberate changes that threatened regime conversion. More recently, regime realignment also has occurred in response to steering by international organizations and shocks such as the 2016 mass coral-bleaching event. The results show that structural density and stability in a governance regime can coexist with major changes in that regime’s context and effectiveness. Clear analysis of the vulnerability of polycentric governance to both diminishing effectiveness and the masking effects of increasing complexity provides sustainability science and governance actors with a stronger basis to understand and respond to regime change.
In response to the growing demand for unbiased answers and analysis on how deregulatory initiatives by the new Administration and Congress will impact environmental protection, governance, and the rule of law, the Environmental Law Institute (ELI) has released Regulatory Reform in the Trump Era. The report explains the legal mechanisms and processes that may get deployed, how they work, and the effect on the current regulatory landscape. It responds to the questions that are increasingly being asked of ELI: What are the pathways and impacts of regulatory reform efforts likely to be undertaken? What are the opportunities for the public and other stakeholders to engage relative to reform initiatives?
In 2004, the UN General Assembly resolved to establish a working group to consider issues pertaining to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ). The group met nine times between 2006 and 2015 before concluding its mandate by recommending the development of an international legally binding instrument on BBNJ under the United Nations Convention on the Law of the Sea. Based on in-depth interviews with working group participants, this research examines how NGOs contributed to the working group process. Respondents from government delegations highlighted the usefulness of workshops and side events convened by NGOs, and the role of NGOs in bringing experts on technical issues – particularly marine genetic resources and the sharing of benefits – into the BBNJ negotiations. Respondents from both NGOs and government delegations emphasized the importance of fostering personal relationships in order to ensure a steady and constructive information flow. Social media efforts by NGOs were considered by some government representatives to have occasionally hampered open discussion, although they noted that conditions have improved. The lengthy working group process was marked by substantial fluctuation in participation, particularly within government delegations from developing states. Of 1523 individuals who participated in at least one of the working group meetings, only 45 attended more than half of the meetings, and 80% of these were representing NGOs or highly industrialized countries. Respondents felt that this comparatively small number of individuals provided a source of continuity that was crucial for moving the discussions forward.
Guatemala's rich coastal and marine biodiversity provides essential ecosystem goods and services to local residents and the national economy through artisanal and commercial fisheries, aquaculture, port exports and, to a lesser extent, tourism. As in many other countries, national policies emphasise the significance of marine conservation and marine resources, primarily through implementing marine protected areas (MPAs). However, this assumes that governance, as reflected in legal, institutional and organizational frameworks, political capacity and human resources is sufficiently developed to ensure MPAs meet these goals. These issues are explored through presenting the first detailed analysis of coastal and marine governance in Guatemala. The research highlights a range of barriers to good governance which restrict the extent to which MPAs can function effectively. Recommendations are made which can capitalise upon the potential for locally managed marine areas as a means to facilitate the improved governance of coastal and marine resources in Guatemala.
In 2016, countries began meeting at the United Nations (UN) to prepare for negotiations to develop an international legally binding instrument on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (ABNJ). How the instrument will relate to submarine cables, if at all, remains to be decided. The preparatory committee will address a “package” of issues, among them the application of area-based management tools, including marine protected areas (MPAs) and environmental impact assessments (EIAs) to activities in ABNJ. EIAs and MPAs already affect submarine cable operations in national jurisdictions. In ABNJ, a new instrument should formalize a cooperative framework with the cable industry to provide limited environmental management where necessary without over-burdening cable operations. This approach would be consistent with the UN Convention on the Law of the Sea and could also inform governance with respect to other activities likely to be benign in ABNJ.
Because seas and coastlines are shared between states, the formulation and implementation of marine spatial planning (MSP) should be transboundary by nature. The main argument of this paper is that MSP should be organized as a transboundary policy-making process, but this is hampered by the conceptual and institutional fragmentation MSP is facing. Based on an analysis of four transboundary planning processes in different European seas, the paper gives insight into the possibilities to develop and implement transboundary marine spatial planning (TMSP). To overcome the conceptual and institutional challenges, TMSP should be developed as a reflexive governance arrangement, in which the actors involved are able to change the rules of the game and to challenge the existing (national-oriented) MSP discourses. The paper develops four forms of reflexivity (unreflectiveness; performative reflectiveness; structural reflectiveness; and reflexivity) to assess TMSP processes and to formulate conditions which are crucial to develop TMSP as a reflexive marine governance arrangement.
This paper presents a preliminary attempt to estimate the awareness and value that society gives to the maintenance and protection of marine protected areas, linking the ecological and economic value scale assigned to the study. To accomplish this, we took as illustrative example the Biophysical Interest Zone of Avencas (ZIBA), in Portugal. The ZIBA spans over one ha and its coastal ecosystems present a very rich biodiversity, providing several socio-economic opportunities to society. To estimate the value that society attributes to this area we conducted a contingent valuation exercise, considering two different aspects: 1) the direct economic value that people state to conserve the ecosystem and 2) the willingness to contribute through the allocation of hours of voluntary work to its conservation. The values obtained indicate the dependence and importance of this ecosystem to local population (willing to pay to conserve it of 60 € per household per year and willing to give 3 h of voluntary work per year). The proximity of the local population to the protected area increases the willing to pay for its conservation; this could reveal a good local indicator of ecosystem valuation. This valuation exercise highlights the importance of coastal ecosystem services to society and draws attention to the benefits that local populations derive from those systems. These results have also implications in future governance actions regarding protected areas, as well as to justify for sustainable investments in coastal management efforts, to sustain the flow of coastal ecosystem services for current and future generations.
Recent additions to marine environmental legislation are usually designed to fill gaps in protection and management, build on existing practices or correct deficiencies in previous instruments. Article 13 of the European Marine Strategy Framework Directive (MSFD) requires Member States to develop a Programme of Measures (PoM) by 2015, to meet the objective of Good Environmental Status (GES) for their waters by 2020. This review explores key maritime-related policies with the aim to identify the opportunities and threats that they pose for the achievement of GES. It specifically examines how Member States have relied on and will integrate existing legislation and policies to implement their PoM and the potential opportunities and difficulties associated with this. Using case studies of three Member States, other external impediments to achieving GES are discussed including uses and users of the marine environment who are not governed by the MSFD, and gives recommendations for overcoming barriers.