Approaches to managing the marine environment of the Caribbean Region

Alana Malinde S.N. Lancaster 1

4 Approaches to managing the marine environment of the Caribbean Region

A significant event for marine management in the Caribbean was the launching by UNEP, in 1976, of the Regional Seas Programme (RSP) for the WCR. In 1981, under the auspices of the RSP, the Caribbean Action Plan was adopted. The Action Plan initially identified the need for evaluation and control of marine pollution, evaluation of impacts on the coastal area, ﬁshing studies, management of watersheds, evaluation of natural hazard effects, energy accounting systems studies, urbanization of the coastal area, and building capacity and training. The Caribbean Action Plan has been periodically evaluated and adapted to the changing political and environ-mental realities and to regional necessities.⁵²

45 For example, efforts by Wider Caribbean Sea Turtle Conservation Network (WIDECAST), under the SPAW Protocol and Inter-American Convention for the Conservation and Protection of Sea Turtles (Caracas, 1 December 1996, into force 2 May 2001, <http://www.iacseaturtle.org/>).

46 For example, the West Indian manatee under Annex I of the SPAW Protocol.

47 Listing of the queen conch under Annex II of SPAW Protocol, and the 2003 recommendation by the Standing Committee of CITES on non-trade with Haiti, the Dominican Republic and Honduras. Belize is currently considering its options with respect to the harvesting of the resource in light of the United States Congress’ proposed ban against the importation of queen conch. The US is the single largest im-porter of the queen conch. See Caribbean 360, ‘Belize going up against US NGO to defend right to harvest conch’ (5 November 2012), available at <http://www.caribbean360.com/index.php/news/be-lize_news/630822.html#axzz2PBumyUSF> (visited 6 June 2013).

48 UNEP, ‘Report on Fish Spawning Aggregations in the Wider Caribbean with Emphasis on the Nassau Grouper’, Fourth Meeting of the Scientific and Technical Advisory Committee (STAC) to the Protocol Concerning Specially Protected Areas and Wildlife (SPAW) in the Wider Caribbean Region, Gosier, Guadeloupe, France, 2–5 July 2008, UN Doc. UNEP(DEPI)/CAR WG.31/INF.7 (2008).

49 For example, the moratorium on harvesting of the sea urchin under s. 8 of the 1998 Fishing (Manage-ment) Regulations (Barbados), available at <http://www.ilo.org/dyn/natlex/docs/ELECTRON-IC/87107/98970/F1464867899/BRB87107.pdf> (visited 29 September 2013).

50 A. Paulina Guarderas, Sally D. Hacker and Jane Lubchenco, ‘Current Status of Marine Protected Areas in Latin American and the Caribbean’, 22 Conservation Biology (2008) 1630–1631 at 1631; and A. Pau-lina Guarderas, Sally D. Hacker and Jane Lubchenco, ‘Ecological Effects of Marine Reserves in Latin America and the Caribbean’, 429 Marine Ecology Programme Series (2011) 219–225.

51 Marian A. L. Miller, ‘Protecting the Marine Environment of the Wider Caribbean Region: The Challenge of Institution-Building’, 37 Green Globe Yearbook (1996) 37–46 at 43; and The Nature Conservancy,

‘Caribbean Challenge Initiative’, available at <http://www.nature.org/ourinitiatives/regions/caribbean/

caribbean-challenge.xml> (visited 6 June 2013).

52 Nelson Andrade Colmenares and J. Jairo Escobar, ‘Ocean and Coastal Issues and Policy Responses in the Caribbean, 45 Ocean & Coastal Management (2002) 905–924.

Perhaps the next most significant event was the adoption, in 1983, of the Cartagena Convention, which provides an opportunity for significant advances in the regional environmental law toward cooperation for the protection of the marine environment of the WCR. The Cartagena Convention is, to date, the only regional legal frame-work available to CARICOM, OECS and other WCR states specifically to foster combined or singular action for the sustainable management of marine resources.

Movement toward the realisation of the Convention was given additional impetus when UNCLOS was adopted in Montego Bay, Jamaica, in 1982.⁵³ The Cartagena Convention exemplifies Chapter 17 of Agenda 21⁵⁴ and will be instrumental in the furtherance of initiatives envisioned under paragraphs 158 – 177 of the Rio+20 Outcome Document (‘The Future We Want’),⁵⁵ which address oceans and seas. Un-fortunately, the Cartagena Convention’s acceptance by Caribbean states has been lukewarm. Nevertheless, as outlined below, there have been several noteworthy pol-icy responses to ocean and coastal problems in the Caribbean.⁵⁶

The adoption of the Cartagena Convention, and the period subsequent to the 1992 United Nations Conference on Environment and Development in Rio de Janeiro, Brazil, both marked the era of increased ratification of multilateral environmental agreements by Caribbean countries. Such agreements aimed at addressing a variety of marine-related issues, including biodiversity,⁵⁷ climate change,⁵⁸ fisheries,⁵⁹

hazard-53 Barker, ‘Biodiversity Conservation‘, supra note 43.

54 Commonly termed the ‘marine chapter’, Chapter 17 of Agenda 21 (Agenda 21, UN Conference on Environment and Development, Rio de Janeiro, 13 June 1992, UN Doc. A/CONF.151/26/Rev.1 (1992), available at http://www.un.org/esa/dsd/agenda21/) is titled ‘Protection of the Oceans, All Kinds of Seas, Including Enclosed and Semi-Enclosed Seas, and Coastal Areas and the Protection, Rational Use and Development of Their Living Resources’.

55 Rio+20 Outcome Document ‘The Future We Want’ (2012), available at <http://www.uncsd2012.org/

content/documents/727The%20Future%20We%20Want%2019%20June%201230pm.pdf> (visited 30 March 2013).

56 Colmenares and Escobar, ‘Ocean and Coastal Issues’, supra note 52.

57 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, in force 29 December 1993, 31 Inter-national Legal Materials (1992) 822, <http://www.biodiv.org>.

58 United Nations Framework Convention on Climate Change, New York, 9 May 1992, in force 21 March 1994, 31 International Legal Materials (1992) 849, <http://unfccc.int>.

59 Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995, in force 11 December 2001, 34 International Legal Materials (1995) 1542, <http://www.un.org/Depts/los/convention_agreements/texts/fish_stocks_agree-ment/CONF164_37.htm> (visited 22 March 2012).

ous⁶⁰ and chemical⁶¹ wastes, invasive species,⁶² oil spills,⁶³ shipping,⁶⁴ wetlands,⁶⁵ and wildlife.⁶⁶ In addition, international instruments which promote the management and conservation of cultural features of the marine environment have also been relied upon as a conservation tool. For example, the Belize Barrier Reef Reserve System⁶⁷ and Saint Lucia’s Pitons Management Area⁶⁸ are both MPAs which have been desig-nated as World Heritage Sites under the 1972 World Heritage Convention.⁶⁹ Further, the Convention on the Protection of Underwater Cultural Heritage⁷⁰ can be useful

60 Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Basel, 22 March 1989, in force 5 May 1992, 28 International Legal Materials (1989) 657, <http://www.basel.

int>.

61 Convention on Persistent Organic Pollutants, Stockholm, 22 May 2001, in force 17 May 2004, 40 In-ternational Legal Materials (2001) 532, <http://www.pops.int>; and Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Rotterdam, 11 September, 1998, in force 24 February, 38 International Legal Materials (1999) 1, <http://www.pic.

int>. The recently concluded Minamata Convention (Minamata Convention on Mercury, Geneva, 19 January 2013) will also be relevant.

62 For example, International Convention for the Prevention of Pollution from Ships, 1973, first signed 2 November 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), adopted 17 February 1978. The combined instrument entered into force on 2 October 1983, 12 International Legal Materials (1973) 1319, <http://www.imo.org>.

63 For example, MARPOL 73/78; International Convention on Civil Liability for Oil Pollution Damage, Brussels, 29 November 1969, in force 19 June 1975, 973 United Nations Treaty Series 3); 1970 Convention Emergency Fund (see <http://www.unesco.org/new/en/culture/themes/illicit-traffic-of-cultural-property/1970-convention-emergency-fund/> (visited 29 September 2013)); and Convention on Limita-tion of Liability for Maritime Claims (London, 19 November 1976, in force 1 December 1986; <http://

www.imo.org>, and Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976 (London, 2 May 1996, in force 13 May 2004).

64 For example MARPOL 73/78 and Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 13 November 1972, in force 30 August 1975, 11 International Legal Materials (1972) 1294; 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 7 November 1996, in force 24 March 2006, <http://

www.imo.org>.

65 Convention on Wetlands of International Importance, Ramsar, 2 February 1971, in force 21 December 1975, 11 International Legal Materials (1972), 963, <http://www.ramsar.org>.

66 Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington DC, 3 March 1973, in force 1 July 1975, 993 United Nations Treaty Series 243, <http://www.cites.org>; Conven-tion on the ConservaConven-tion of Migratory Species of Wild Animals, Bonn, 23 June 1979, in force 1 Novem-ber 1983, 19 International Legal Materials (1980) 15, <http://www.cms.int>; International Convention for the Regulation of Whaling, Washington D.C., 2 December 1946, in force 10 November 1948, 161 United Nations Treaty Series 72; and the 1994 Inter-American Convention for the Conservation and Protection of Sea Turtles.

67 UNESCO, ‘Belize Barrier Reef Reserve System, available at <http://whc.unesco.org/en/list/764> (visited 29 September 2013).

68 UNESCO, ‘Pitons Management Area’, available at <http://whc.unesco.org/en/list/1161> (visited 29 September 2013).

69 Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972, in force 17 December 1975, 11 International Legal Materials (1972) 1358, <http://whc.unesco.

org>.

70 UNESCO Convention on the Protection of the Underwater Cultural Heritage, Paris, 2 November 2001, in force 2 January 2009, available at <http://portal.unesco.org/en/ev.php-URL_ID=13520&URL_

DO=DO_TOPIC&URL_SECTION=201.html> (visited 6 June 2013).

for the protection of shipwrecks in the region, as well as areas such as Jamaica’s Port Royal⁷¹ and the statues in Grenada’s Molinere/Beausejour Marine Protected Area.⁷² Efforts under the relevant multilateral environmental agreements (MEAs) have been buttressed by the incorporation of issues of marine management into the economic integration agreements of Chaguaramas, as well as Basseterre and the St. George’s Declaration. For example, Article 121 of the Revised Treaty of Chaguaramas defines the Caribbean Sea as a ‘special area’, though the relevance of this is not fully articu-lated in the text of the agreement. What is clearer is the designation, in 1991, of the Caribbean Sea as a Special Area under Annex V of the MARPOL Convention, which prescribes certain measures for the control of pollution by garbage from ships. This designation came into effect for the Caribbean region in 2011, and was an important early step, given that sewage and domestic wastewater from land-based and marine sources (including ships) were first identified as problems in the Wider Caribbean region in 1994.⁷³ However, the 20 years between the identification of the area as one requiring Special Area status and its designation under the MARPOL Convention was an unacceptably long period.

In the 21st century, efforts to conserve and manage the marine environment have shifted away from the fragmented approach that was taken during the 1980s and early 1990s, and towards the adoption of more holistic strategies. This is evident in the moves by states to embrace more comprehensive strategies, such as integrated coastal zone management⁷⁴ and the ecosystem approach to fisheries and ocean gov-ernance. The ecosystem approach has been emphasized by the Conference of the Parties to the 1992 Convention on Biological Diversity,⁷⁵ and has gained currency in the Caribbean region. For example, in 2011, the Centre for Resource Management and Environmental Studies of the University of the West Indies and the Caribbean Law Institute Centre published a Technical Report entitled ‘Ecosystem-based Man-agement Principles in the Caribbean’.⁷⁶ This complemented an earlier publication

71 Port Royal was a city located at the tip of the Palisadoes (which is a tombolo, or narrow sand bar linking a small island with the mainland, located at the mouth of the Kingston Harbour in south-eastern Ja-maica).

72 The Molinere /Beausejour Marine Protected Area is located on the west coast of Grenada, and spans a length of approximately 2.5 kilometres. It was established by the 2001 Fisheries (Marine Protected Area) Regulations (Grenada) to protect the best reef system in Grenada. The area is subject to high levels of fishing, scuba-diving and mooring from yachts. One of the major objectives of the Regulations was thus to zone the area into a multi-use MPA. Molinere Bay is also the site of the Grenada Underwater sculpture Park, an underwater gallery comprising 65 sculptures anchored to the seafloor, and designed to act as artificial reefs. See Lyndon Robertson, ‘Integrated Management of Marine Protected Areas in Grenada’, 53rd Gulf and Caribbean Fisheries Institute (2003), available at <http://procs.gcfi.org/pdf/gcfi_54-61.

pdf> (visited 7 June 2013).

73 UNEP, Regional Overview of Land-Based Sources of Pollution in the Wider Caribbean Region, CEP Techni-cal Report No. 33 (UNEP Caribbean Environment Programme, 1994), available at <http://www.cep.

unep.org/publications-and-resources/technical-reports/tr33en.pdf> (visited 7 June 2013).

74 For example, the 1998 Coastal Zone Management Act (Barbados) and 1998 Coastal Zone Management Act (Belize).

75 See ‘Ecosystem appraoch’, CBD Decisions V/6 (2000) and VII/11 (2004).

76 CERMES/CLIC, Ecosystem-based Management Principles in the Caribbean, CERMES Technical Report

entitled ‘Towards Marine Ecosystem-Based Management in the Wider Caribbean’⁷⁷ – which incorporated a broad range of perspectives of ocean governance in the re-gion. Additionally, the Cartagena Convention’s Protocol Concerning Specially Pro-tected Areas and Wildlife (SPAW)⁷⁸ and Protocol on Marine Pollution from Land-based Sources and Activities (LBS)⁷⁹ promote this approach, as do projects addressing ocean governance issues, such as the PROGOVNET⁸⁰ and CLME⁸¹ Projects.

In keeping with the ecosystem approach, the use of MPAs has been coupled with coastal zone management as a further management mechanism for the conservation and management of sensitive or threatened ecosystems,⁸² including more recent ef-forts at combined fisheries and multi-use management.⁸³ Belize⁸⁴ and Barbados⁸⁵ are notable examples in this regard.⁸⁶ However, while a large number of MPAs exist in the region, the deficiencies highlighted by Miller⁸⁷ and Guarderas et al⁸⁸ (namely, that the existing MPAs are non-representative and ineffective) are prominent, as most

No 47, available at <http://www.cavehill.uwi.edu/cermes/Technical_Reports/CLIC_2011_PROGOV-NET_ecosystem-based_management_principles_Caribbean_CTR_47.pdf> (visited 7 June 2013).

77 Lucia Fanning, Robin Mahon and Patrick McConney, Ecosystem-based Management Principles in the Carib-bean (Amsterdam University Press, 2011).

78 For example, Art’s 4–11. See also Benedict Sheehy, ‘Does International Marine Environmental Law Work?

An Examination of the Cartagena Convention for the Wider Caribbean Region’, 12 Georgetown Interna-tional Environmental Law Review (2004) 441–472; Alessandra Vanzella-Khouri, ‘Implementation of the Protocol concerning Specially Protected Areas and Wildlife (SPAW) in the Wider Caribbean Region’, 30 The University of Miami Inter-American Law Review (1998) 53–83; and Vijay Krishnarayan, Yves Renard and Lyndon John, ‘The SPAW Protocol and Caribbean Conservation: Can a Regional MEA Advance a Progres-sive Conservation Agenda?’, 9 Journal of International Wildlife Law & Policy (2006) 265–276 at 273.

79 For example, Art’s III and IX and Annex III.

80 Strengthening Principled Ocean Governance Networks: Transferring Lessons from the Caribbean to the Wider Ocean Governance Community (PROGOVNET) was a Nippon Foundation funded project, which ran from January 2008 until March 2011 and aimed to strengthen regional ocean governance within the Caribbean. Dalhousie University, ‘Completed International Projects’, available at <http://in-tlresearchdevelopment.dal.ca/International_Projects/Completed_Projects/> (visited 18 September 2013).

81 The CLME Project is a programme of the UNESCO Intergovernmental Oceanographic Commission’s Sub-commission for the Caribbean and Adjacent Regions (IOCARIBE), and assists countries in the Wider Caribbean Region to improve management of shared marine living resources through the use of an ecosystem approach. For further information on the project, see IOCARIBE, ‘Caribbean LME Project’, available at <http://iocaribe.ioc-unesco.org/index.php?option=com_content&view=article&id=56&Item id=27> (visited 18 September 2013).

82 See, for example, Leandra Cho, ‘Marine Protected Areas: A Tool for Integrated Coastal Management in Belize’, 48 Ocean and Coastal Management (2005) 932–947 at 946.

83 Examples include the Soufriere (Callum M. Roberts et al, ‘Effects of Marine Reserves on Adjacent Fisher-ies’, 294 Science (2001) 1920–1923); and the Molinere-Beaseajour (Lyndon Robertson, ‘Integrated Man-agement of Marine Protected Areas in Grenada’, 53rd Gulf and Caribbean Fisheries Institute (2003), available at <http://procs.gcfi.org/pdf/gcfi_54-61.pdf> (visited 7 June 2013))

84 See, for example, Cho, ‘Marine Protected Areas’, supra note 82.

85 Janice Cumberbatch, Case Study of the Folkestone Park and Marine Reserve, Barbados, CANARI Technical Report No. 281 (CANARI, 2001), available at <http://www.canari.org/folkstone.pdf> (visited 29 Sep-tember 2013).

86 As indicated in footnote 74, Belize and Barbados both have statutes which specifically address coastal zone management. In the case of Belize, the statute established the Coastal Zone Management Authority and integrated ICZM and MPA management; while Barbados’ legislation established the Coastal Zone Man-agement Unit, and sought to cumulate and streamline various statutes which concerned the manMan-agement of the coastal zone. See Cho, ‘Marine Protected Areas’, supra note 82.

87 Miller, ‘Protecting the Marine Environment’, supra note 51.

88 Guarderas et al, ‘Current Status of Marine Protected’, supra note 50.

MPAs are either coastal, in the territorial sea or poorly planned.⁸⁹ Indeed, most MPAs fail adequately to balance competing interests, and because of issues of monitoring and regulation are often simply ‘paper parks’. However, the prospects of the Carib-bean Sea Commission and the CaribCarib-bean Challenge, discussed below, may perhaps provide a glimmer of hope in this regard.

The ecosystem approach is also reflected in the linking of coastal, land-based and marine issues through the combination of the SPAW and LBS Protocols, which to-gether aim at mitigating several of the principal threats to the region’s marine envi-ronment. The two Protocols are linked through the categorization of Class I waters (these being areas where states can extend added protection to both ecosystems and species). Class I waters are defined by the LBS Protocol to include areas that provide habitat for species protected under the SPAW Protocol, as well as protected areas listed under the SPAW Protocol.⁹⁰

Finally, states can rely on tools which have been in existence in the region for over a decade, but have not been used as extensively for marine management as they have in other contexts, such as waste management. These tools include environmental impact assessment (EIA)⁹¹ – which is provided for in the Cartagena Convention⁹²

89 Ibid.

90 Annex III of the 1999 LBS Protocol defines Class I waters as waters in the Convention area that, due to inherent or unique environmental characteristics or fragile biological or ecological characteristics or hu-man use, are particularly sensitive to the impacts of domestic wastewater. Class I waters include, but are not limited to:

(a) waters containing coral reefs, seagrass beds, or mangroves;

(b) critical breeding, nursery or forage areas for aquatic and terrestrial life;

(c) areas that provide habitat for species protected under the Protocol Concerning Specially Protected Areas and Wildlife to the Convention (the SPAW Protocol);

(d) protected areas listed in the SPAW Protocol; and (e) waters used for recreation.

91 EIA as a tool for environmental and natural resource management has seen limited success in the CARI-COM Caribbean region. Five jurisdictions have implemented legislation aimed specifically at incorporat-ing the EIA regime into environmental management and conservation, while at least two others have incorporated it into town and country (development) planning. However, public interest in the EIA process is lacking, and environmental litigation has been rare, with only a handful of cases taken to the courts from Jamaica (Pear Tree Bottom, Harbour View and Palisadoes cases), Belize (BACONGO Nos. 1 &

2), Trinidad and Tobago (Talisman and Fishermen and Friends of the Sea), the British Virgin Islands (Vir-gin Islands Environmental Council), and the Bahamas (Save Guana Cay) (see infra notes 138–144), in the last 10 years. For a further discussion on this, see Alana Malinde S. N. Lancaster and Lyndon F. Robertson,

‘Environmental Governance for Oceans, Health and Humans in the Caribbean Region: A Phoenix Rising From the Ashes?’ 15 Advances in Medical Sociology: (forthcoming 2013) 311; Danielle E. Andrade, Carole Excell, and Candy Gonzalez, ‘Citizen Enforcement of Procedural Rights in the Environmental Impact Assessment Process in Belize and Jamaica’, a paper presented at the Ninth International Conference on

In document International environmental law-making and diplomacy review 2012 (sivua 163-169)