Marine protected areas for whales, dolphins, and porpoises: a world ...

40 Marine Protected Areas for Whales, Dolphins and Porpoises
CMS is also becoming as an important instrument for high-seas critical
habitat protection, according to Prideaux (2003b), especially with the
harmonization of work plans between CBD and CMS. According to plans put
forward during the 5th CBD Conference of the Parties, the work of CMS and
migratory species would be integrated into the work programme and
implementation of CBD ‘with regard to, inter alia, the ecosystem approach; the
Global Taxonomy Initiative; indicators, assessments and monitoring; protected
areas; public education and awareness; and sustainable use, including tourism’.
CMS has a useful ‘threat mitigation trend’ running through its existing work
(Prideaux, 2003b). CMS agreements specifically address multiple issues with
on-the-ground programmes and scientific investigation. In addition, CMS
focuses on the establishment of regional agreements through which
conservation work proceeds, which increases its adaptability to regional
circumstances. If high-seas and multijurisdictional cetacean critical habitats are
to be protected within a biosphere reserve model, CMS with CBD and CMS
regional agreements may be the most appropriate framework to develop this
regime (Prideaux, 2003b, 2003c).
Besides all of the above approaches (UNCLOS, CBD, CMS, UNCED:
Agenda 21, international whale sanctuaries and the precautionary approach),
there is a range of other high-seas conventions, treaties and fishing agreements
which provide precedents and offer promise for the creation of effective highseas
MPAs for cetaceans, fish and various resources. In sum, there is no simple
legal framework covering high-seas waters outside national jurisdictions. Still,
there exists a useful if complex mosaic of different treaties, action programmes
and other instruments that can be said to comprise the legal regime of the high
seas. It includes global and regional conventions, legally binding documents
and ‘soft law’ (de Fontaubert, 2001). According to de Fontaubert, the
international legal regime applicable to the high seas strongly advocates
cooperation among governments, does not prohibit and in some ways
encourages the establishment of MPAs and is subject to evolution including
the possibility that high-seas MPAs could be endorsed more explicitly and
promoted in future through the existing agreements.
A full list of legal instruments applicable to the high seas, as well as to the
creation of MPAs within national waters, is detailed in Table 1.6. It is important
to recognize that those states that are not party to these various conventions
and treaties are not bound by them. Yet most states now recognize or are party
to at least two of the important conventions for future high-seas MPA
development: the United Nations Convention on the Law of the Sea
(UNCLOS) and the Convention on Biological Diversity (CBD).
It is important to recognize that those states that are not party to these
various conventions and treaties are not bound by them, although most states
now recognize or are party to UNCLOS and the CBD.
The main hope for the future of MPAs on the high seas is that a few bold,
brave states will get together on their own, regionally or through one of these
conventions or treaties, and proceed to designate a few high-seas MPAs. The
pioneer states must show that they are willing to restrict their own uses on the