Kanako Hasegawa 1
6 Are human rights relevant to Marine Protected Areas in the high seas?
For the integrated management of MPAs in ABNJ, socio-economic dimensions need to be considered along with environmental issues. So far, the discussion on high seas MPAs has been primary on the conservation and sustainable management of ecosystem functioning and services. Limited attention has been paid to human dimensions in creating the high seas MPAs, perhaps due to the large distance from inhabited areas and assumptions that there are only limited socioeconomic impacts.
But, are human rights irrelevant to high seas MPAs?
First of all, the issue of access rights to the high seas MPAs can be considered. Under UNCLOS, flag-states have the freedom of navigation, overflight, laying of subma-rine cables and pipelines, construction of artificial islands or installations, fishing, and marine scientific research, subject to the conditions set by UNCLOS and other rules of international law.82 Even though freedom of navigation is granted, ships may need to detour MPA-designated areas depending on the management rules set for the location. This means that access right to a certain area might change through the creation of an MPA. It should be noted that high-sea MPAs that have been es-tablished under regional as well as international agreements only apply to the mem-ber states of these agreements. This means that non-parties to these agreements may not be obliged to follow the management rules even when the MPA is in principle closed for access.
Secondly, withdrawal rights of states can be impacted by the presence of MPAs in ABNJ. For instance, under decisions by fisheries management organizations, state parties may decide to restrict their fishery activities in certain areas of the high seas.
80 Laurenne Schiller et al, ‘High Seas Fisheries Play a Negligible Role in Addressing Global Food Security’, 4(8) Scientific Advances (2018), DOI: 10.1126/sciadv.aat8351.
81 Natalie C. Ban et al, ‘Systematic Conservation Planning: A Better Recipe for Managing the High Seas for Biodiversity Conservation and Sustainable Use’, 7(1) Conservation Letters 7 (2014) 41-54 at 52.
82 Gjerde, ‘High Seas Marine’, supra note 51, at 149.
These rules apply to the member states of respective regional bodies and the states may be required to give up withdrawal rights as well as the freedom of fishing. In case a non-member state to the relevant regional fisheries bodies does not comply with the guideline, it would be considered as a non-regulated fishery under the UN Fish Stock Agreement. This change in the withdrawal right will impact fishermen’s life especially in the short term as they may face economic losses due to the loss of fisheries ground and decreased catch.
In addition to fish, genetic resources can be subject to withdrawal in the high seas.
While there is a heated discussion as to whether marine genetic resources fall under the regime of common heritage of humankind or not,83 withdrawal rights could be changed through the presence of MPAs. In this sense, individuals or groups of individuals, such as commercial operators conducting bioprospecting, may be finan-cially impacted by the change in the withdrawal rights.
Thirdly, management rights of certain coastal states can be examined. Under the MPAs established by regional instruments, only a certain number of countries with-in their respective regions are eligible for and engaged with-in the management of the MPAs in these high-seas. A relevant question is whether these states can be entrusted for the protection of the high seas if the high seas do not belong to any state. Certain costal states could be geographically located closer to the MPAs than other states, but it does not have to guarantee management rights. For the equitable management of the high seas ecosystems and their services, the allocation of management rights needs to be fully examined since the oceans are connected and the management of the high seas may well have an impact on territorial waters.
The issues of management rights lead to the question of the rights to participation.
It is relevant to ask who should participate in the creation, management and mon-itoring of high seas MPAs. The oceans, including the high seas, have an important function for human wellbeing including the generation of oxygen, food supply and absorption of heat as a climate regulator. If these services are to be protected, the protection of the high seas could be of concern to any individuals. As such, in prin-ciple, any individuals have rights to participate in a process to protect a safe and healthy environment. This means that appropriate measures and relevant informa-tion for participainforma-tion need to be available instead of relying on closed-door decisions on the creation, management and monitoring of MPAs in ABNJ.
Last but not least, other emerging rights such as inter-generational rights could be considered to be relevant to high seas MPAs. Conservation efforts do not produce results in one day, and a decision today will have an implication on future
gener-83 Marjo Vierros et al, ‘Who Owns the Ocean? Policy Issues Surrounding Marine Genetic Resources’, 25(2) Limnology Oceanography Bulletin (2016) 29-63 at 34.
ations. Principle 3 of the Rio Declaration84 states that ‘the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.’ In line with the Principle, the rights of future generations to a healthy ocean and its natural resources need to be considered when discussing the conservation and sustainable management of the high seas.
7 Conclusion
Until now the creation of high-seas MPAs has been taking a technocratic approach focusing on conservation benefits, and the consideration for human dimensions has not been well made. However, examples of MPAs in the territorial waters, as well as experiences from terrestrial protected areas, have shown the importance of socioec-onomic dimensions. Some recent studies have started to analyze the impact of high seas MPAs on indigenous rights. For instance, in eastern and central Polynesia, non-fish natural resources such as whales, dolphins, tuna, and turtle are often considered to be totemic animals of extended families and clans. Property rights of indigenous people could, therefore, include rights to these traditional cultural resources, beyond fishing rights.85 Further research is needed to understand how to best consider hu-man rights in high seas MPAs.
Considering that UNCLOS and human rights law are interlinked, there is a possi-bility to better include human rights perspectives in developing high seas MPAs in the framework of a new ILBI to be developed under UNCLOS. Human rights are closely relevant to high seas MPAs including access rights, withdrawal rights, right to information, right to participation and inter-generational rights. These rights could be reallocated through the establishment of MPAs in the high seas. It could thus be concluded that human rights are relevant to high seas MPAs even though there may be no humans living in the high seas.
As the Intergovernmental Conference on an ILBI under UNCLOS on the conserva-tion and sustainable use of marine biological diversity of areas beyond naconserva-tional juris-diction continues, I would recommend considering human dimensions, including human rights, together with other legal and scientific dimensions in the discussion on area-based management tools including MPAs. Rights-based approaches, which have been used for conservation, could provide a useful framework in examining socio-economic impacts of any future governance process for MPAs in ABNJ. It is to be hoped that human dimensions will be properly incorporated in the consider-ation of a mechanism for site-selection, management, monitoring and enforcement of MPAs in the high seas.
84 UN Declaration on Environment and Development, Rio de Janeiro, 14 June 1992, UN Doc. A/
CONF.151/5/Rev.1 (1992), 31 International Legal Materials (1992) 876.
85 Pierre Leenhardt et al, ‘The Rise of Large-scale Marine Protected Areas: Conservation or Geopolitics?’, 85 Ocean & Coastal Management (2013) 112-118 at 115.