Alana Malinde S.N. Lancaster 1
6 Charting new directions in ocean governance in the Caribbean Region
A cursory evaluation of the approaches discussed in this paper depicts a region which has some achievements, but also some shortcomings, in ocean governance. In pro-ceeding in the short and medium-term, the starting point in any prudent effort needs to be stocktaking, and streamlining of efforts to address the management and con-servation of the marine environment. Secondly, given the reality of the fiscal, techni-cal and other limitations prevalent in the region, there needs to be a prioritizing of actions. This is especially so for the SIDS of the CARICOM and OECS groupings.
Thirdly, the region needs to reassess its approach to addressing existing uses, as well as to adopt a proactive or precautionary approach to emerging uses of the ocean.
An example of the need for proactive and precautionary marine management is presented by the challenge by environmental organization Oceana137 in Belize to the validity of offshore oil contracts issued by the government of Belize.138 Oceana peti-tioned the Supreme Court of Belize on the grounds that the government failed to assess the environmental impact on Belize’s ocean, as it was required by law to do, prior to issuing the contracts; and that contracts were awarded to companies that did not demonstrate a proven ability to contribute the necessary assets, funds, equip-ment, machinery, technical expertise and tools to drill safely. This case also illustrates the emerging need to address diverse and often competing uses of the region’s marine environment, because even though oil and gas have the potential to be a fillip for Belize’s economy, improper management of that use may have a potentially devastat-ing impact on the Belize Barrier Reef – the 300 kilometre long section of the 900 kilometre long Meso-American Barrier Reef System, which is a central feature of Belize’s tourism industry and its economy. Other noteworthy examples of proactiv-ity by environmental NGOs in the region are the actions brought by the Jamaican Environmental Trust in the Pear Tree Bottom,139 Harbour View140 and Palisadoes141
at <http://www.caricom.org/jsp/communications/meetings_statements/liliendaal_declaration_climate_
change_development.jsp> (visited 29 September 2013).
137 See <http://oceana.org/en/making-waves> and <http://oceana.org/en/about-us/history>.
138Oceana in Belize; Citizens Organised for Liberty through Action (COLA) and the Belize Coalition to Save Our Natural Heritage v Minister Of Natural Resources (Claim No. 810 of 2011), 23 April, 2013 (Supreme Court of Belize, 2013).
139Northern Jamaica Conservation Association et al v Natural Resources Conservation Authority and National Environmental Planning Agency (No. 1), 2006, (Supreme Court of Judicature of Jamaica) Claim No. HCV 3022 of 2005, available at <http://www.jamentrust.org/advocacy-a-law/legal/cases/99-pear-tree-bottom-papers.html> and Northern Jamaica Conservation Association et. al. v Natural Resources Conservation Au-thority and National Environmental Planning Agency (No. 2) 2006, (Supreme Court of Judicature of Ja-maica), No. HCV 3022 of 2005, available at <http://www.jamentrust.org/advocacy-a-law/legal/
cases/99-pear-tree-bottom-papers.html> (both visited 29 September 2013).
140Jamaica Environment Trust and Another v National Water Commission and Others, 2010, (Supreme Court of Judicature of Jamaica), Claim No. HCV 00114/2010, available at <http://www.jamentrust.org/advo-cacy-a-law/legal/cases/126-judicial-review-harbour-view-sewage-treatment-plant.html> (visited 29 Sep-tember 2013).
141Jamaica Environment Trust v Natural Resources Conservation Authority and National Environmental Plan-ning Agency (Supreme Court of Judicature of Jamaica), Claim No. HCV 5674/2010, available at <http://
cases with respect to the conduct and review of EIAs, and the granting of permits by the National Resources Conservation Authority. Other attempts in the cases of Fish-erman and Friends,142 Save Guana Cay143 and Virgin Islands Environmental Council,144 where NGOs sought to halt development projects which would have occasioned impacts on the marine environment, have been less successful, but nevertheless dem-onstrate an increased awareness of threats to the marine environment, as well as public participation and environmental justice when issues of marine and environ-mental law are concerned.
Fourthly, although there are many existing initiatives, there needs to be greater com-munication and coordination among Caribbean states – which have different levels of awareness, interest and knowledge. Until now, the main conduit for this coordina-tion has been the RSP for the WCR, but this mechanism needs to be revamped – most notably to allow a complementary relationship with the proposed Caribbean Sea Commission, and with the economic integration agreements present in the re-gion. The latter relationships are arguably critical for the region, since the interface between environment and trade is becoming more perceptible at the regional and global levels – and has been included as a specific area to inform the trade agreements between CARIFORUM145 states and the European Union under the 2008 Eco-nomic Partnership Agreement.146
At a national level, there are several challenges – including lack of political will and the effective translation of plans, policies and programmes into concrete medium and long-term actions. Further, given the dualist nature of Commonwealth Caribbean states, there needs to be a more concerted effort to translate international commit-ments into a discernible regulatory framework. Embarking on this approach is close-ly tied to stocktaking, streamlining and prioritisation, since the issue of incorporation
www.jamentrust.org/advocacy-a-law/legal/cases/142-judicial-review-roadworks-on-the-palisadoes-strip.
html> (visited 29 September 2013).
142Fishermen and Friends of the Sea v. The Environmental Management Authority & Anor. 2005, UKPC 32, available at <http://www.ema.co.tt/cms/images/stories/pdf3/fishermen%20and%20friends%20pc.pdf>
(visited 29 September 2013).
143Save Guana Cay Reef Association Ltd. and others v. The Queen and others, 2009, (Judicial Committee of the Privy Council) 44, available at <http://www.jcpc.gov.uk/decided-cases/docs/JCPC_2009_0013_Judg-ment.pdf> (visited 29 September 2013).
144Virgin Islands Environmental Council v. Attorney General and Quorum Island BVI Limited, 2008, (Eastern Caribbean Supreme Court (Civil)) BVIHCV2007/0185, available at <http://www.eccourts.org/wp-con-tent/files_mf/1359390929_magicfields_pdf_file_upload_1_1.pdf> (visited 29 September 2013).
145 The Caribbean Forum of African, Caribbean and Pacific (ACP) States (CARIFORUM) promotes and coordinates policy dialogue, cooperation and regional integration among the Caribbean ACP states. All 15 members of CARICOM are members of the Forum, as are Cuba and the Dominican Republic.
The British and Dutch Overseas Territories and Countries and the French Overseas Departments in the Caribbean (DOMs) have observer status. Caribbean Community Secretariat, ‘The Caribbean Forum of African, Caribbean and Pacific (ACP) States (CARIFORUM)’, available at <http://www.caricom.org/jsp/
community_organs/cariforum/cariforum_main_page.jsp?menu=cob> (visited 18 September 2013).
146 Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community, of the other part, 15 October 2008, available at <http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=OJ:L:2008:289:0003:1955:EN:PDF> (visited 29 September 2013).
has troubled, and will continue to plague, CARICOM states. While financial and technical challenges will always exist as an impediment to the implementation of MEAs, states need to reconceptualize how they approach accession to and conse-quent implementation of these agreements. For example, instead of conceptualizing ocean governance efforts in a vacuum, states should first identify how existing legis-lation can be tailored and made more robust for the needs and realities of the region.
Existing legislation and policies can be amended to address marine issues that are not currently regulated and, where this approach is not feasible, entirely new laws can be introduced. Emerging issues which are not provided for by the existing regulatory frameworks include marine spatial planning, transboundary MPAs and biological corridors, and new uses of the marine resource in the region, such as geo-engineering, offshore drilling for oil, gas and minerals by many Caribbean states,147 and harvesting renewable energy from the sea.148 While the issue of legislative drafting is fraught with financial and technical challenges, the approach utilised on occasion by both CARI-COM149 and the OECS150 of drafting model legislation, that can be adopted and/or adapted by individual states, needs to be revisited.
States need to provide a more enabling environment for initiatives which can address more than one conservation challenge at once – for example, enhancing efforts under the Caribbean Challenge, revisiting debt-for-nature swaps, and blue carbon science which can address both ocean governance and climate change issues. Additionally, states could consolidate their efforts, and draw upon the tools available to them for prudent ocean governance. For instance, the use of expedients such as traffic separa-tion schemes and particularly sensitive sea areas (PSSAs) under the MARPOL Con-vention are non-existent in the region;151 and many jurisdictions still lack clear pro-cedures with respect to environmental impact assessments and strategic environmental assessments (SEAs), which may be a more relevant tool, given the multi-sectoral nature of the marine environment. These may also boost existing ap-proaches, which could be complemented by emerging paradigms, or tools, which are in embryonic stages. These include the use of marine spatial planning, transbound-ary MPAs and biological corridors,152 to name a few.
147 With the exception of Trinidad and Tobago, where drilling for oil and gas has been ongoing since the 1950s, most CARICOM countries have yet to extract oil and gas, but many have expressed an interest in pursuing this option in an effort to reduce the heavy reliance on importing fossil fuels.
148 Some states, primarily the OECS groups of states are exploring the harvesting of renewable energy associ-ated with wave, tidal and ocean thermal energy conversion.
149 Model legislation on occupational health and safety, labour, issues affecting women, sexual harassment and free movement in the Caribbean Single Market and Economy (most in draft).
150 Model legislation on fisheries and a common fisheries zone (implemented), biodiversity conservation and sustainable use, environmental frameworks and ocean governance (in draft).
151 See Alana Malinde S. N. Lancaster, Transboundary Marine Protected Areas for Marine Management & Ocean Governance in the English-Speaking Caribbean (LAP LAMBERT Academic Publishing, 2014) (forthcom-ing).
152 Alana Malinde S. N. Lancaster, ‘The Use of Transboundary Marine Protected Areas as a Tool for Marine Management & Ocean Governance in the English-Speaking Caribbean’, Thesis for the award of the Master of Laws in Marine & Environmental Law, Marine Environment & Law Institute, Dalhousie University, Halifax, Canada (2010).
Finally, and perhaps most importantly for WCR states – instead of utilizing valuable resources to re-invent wheels, the provisions on cooperation under the RSP should be strengthened both at the intra-regional, as well inter-regional levels. Throughout the world, there are other RSPs, some of which could have lessons which can be adapted, utilized or improved by the WCR. For example, efforts to manage the Bal-tic153 and Mediterranean154 Seas – both semi-enclosed seas like the Caribbean Sea, and managed under similar regional seas programmes155 and instruments which are similar to the Cartagena Convention, would no doubt be instructive.156
7 Conclusions
The marine environment of the Caribbean region is a resource which has tremendous ecological, economic, scientific and social significance, and the importance of this environment will increase in the future. Years of unsustainable use, conservation and management policies which have not been sustained, expanding uses of the marine environment and a feeble regulatory framework, have meant that the marine envi-ronment is under increasing stress. Strategies addressing marine management and ocean governance in the Caribbean Community and the Organisation of Eastern Caribbean States have been ongoing since the colonial era, but as the uses of the marine environment increase and become more complex, a change is needed in the approach to management and conservation. It must be highlighted that prudent and successful marine and ocean governance in the region will have to rely on the com-plex inter-relationship between international environmental law making and the incorporation of international obligations at the national level. This holistic perspec-tive is essential given the res communis and transboundary nature of the region’s marine environment.
153 Convention on the Protection of the Marine Environment of the Baltic Sea Area, Helsinki, 22 March 1974, in force 3 May 1980, 13 International Legal Materials (1974) 546, <http://www.helcom.fi>.
154 Convention for the Protection of the Mediterranean Sea against Pollution, Barcelona, 16 February 1976, in force 12 February 1978, 15 International Legal Materials (1976) 290, amended to be the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, Barcelona, 10 June 1995, in force 9 July 2007, available at <http://www.unep.ch/regionalseas/regions/med/t_barcel.
htm> (visited 13 February 2009).
155 See <http://www.helcom.fi/>. See also Minna Pyhälä, ‘Marine Biodiversity Conservation with a Special Focus on Work Carried Out Under the Helsinki Convention’, in Ed Couzens and Tuula Kolari (eds), International Environmental Lawmaking and Diplomacy Review, 2006 University of Joensuu – UNEP Course Series 4 (University of Joensuu, 2007) 165–184 .
156 Lancaster, ‘The Use of Transboundary’, supra note 152.