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UNEP: TRAINING WORKSHOP UNEP: TRAINING WORKSHOP ON ECOSYSTEM ON ECOSYSTEM

APPROACHES TO COASTAL APPROACHES TO COASTAL AND OCEAN MANAGEMENTAND OCEAN MANAGEMENT

Focus on Ecosystems Based Management in Eastern Africa:Focus on Ecosystems Based Management in Eastern Africa:Institutional and Legislative Frameworks for an EA at the Institutional and Legislative Frameworks for an EA at the

Regional Level, including cross sectoral and transboundary Regional Level, including cross sectoral and transboundary aspectsaspects

By Akunga Momanyi By Akunga Momanyi

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A. Introduction and A. Introduction and OverviewOverview• This presentation is part of generic This presentation is part of generic

understanding of ecosystem approaches to understanding of ecosystem approaches to management of coastal and oceanic management of coastal and oceanic resources. It follows upon the thematic resources. It follows upon the thematic discussion on “Developing an Ecosystem discussion on “Developing an Ecosystem Approach”, which has covered (a) basic Approach”, which has covered (a) basic concepts and approaches; (b) the necessity of concepts and approaches; (b) the necessity of adopting an ecosystem approach; and (c) adopting an ecosystem approach; and (c) international law and policy instruments for an international law and policy instruments for an ecosystem approach. The latter has covered ecosystem approach. The latter has covered the main international law framework for EAthe main international law framework for EA

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A. Introduction and Overview A. Introduction and Overview contdcontd• This presentation will focus on the Western This presentation will focus on the Western

Indian Ocean regional legal and institutional Indian Ocean regional legal and institutional frameworks for EA, including cross sectoral frameworks for EA, including cross sectoral and transboundary aspects.The main and transboundary aspects.The main framework is provided by the 1985 Nairobi framework is provided by the 1985 Nairobi Convention and its Protocols.Convention and its Protocols.

• The presentation will seek to emphasize the The presentation will seek to emphasize the need to increase awareness of EA and its need to increase awareness of EA and its effective implementation across the Region, effective implementation across the Region, as well as increased integration between as well as increased integration between national and regional institutions concerned national and regional institutions concerned with coastal and marine environment.with coastal and marine environment.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EAEA• The WIO Region has, alongside other The WIO Region has, alongside other

regions of the world, gradually regions of the world, gradually responded to the ecosystem approach. responded to the ecosystem approach. The 1985 convention and its protocols The 1985 convention and its protocols have provisions in this regard, and its have provisions in this regard, and its conference of parties (COP) has also conference of parties (COP) has also made relevant decisions regarding EA. made relevant decisions regarding EA. There are also other supportive There are also other supportive instruments, as well as institutionsinstruments, as well as institutions

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd The 1985 Nairobi Convention and Its ProtocolsThe 1985 Nairobi Convention and Its Protocols• The 1985 Nairobi Convention was developed against The 1985 Nairobi Convention was developed against

the background of the 1982 United Nations the background of the 1982 United Nations Convention on the Law of the Sea(1982 UNCLOS), Convention on the Law of the Sea(1982 UNCLOS), but before the latter came into effect. The 1982 but before the latter came into effect. The 1982 UNCLOS has several provisions which are consistent UNCLOS has several provisions which are consistent with EA.with EA.

• At the level of principles, although the Convention At the level of principles, although the Convention was not expressive of important international was not expressive of important international environmental law principles, its proposed revisions environmental law principles, its proposed revisions include references to include references to the precautionary principle; the precautionary principle; the polluter pays principle; and the promotion of the polluter pays principle; and the promotion of integrated coastal zone management. integrated coastal zone management.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• Its provisions concerning pollution from various Its provisions concerning pollution from various

sources, including ships (Art. 5); dumping (Art. 6); land sources, including ships (Art. 5); dumping (Art. 6); land based activities (Art. 7); seabed activities (Art.8); and based activities (Art. 7); seabed activities (Art.8); and air borne pollution( Art.9), are all arguably supportive air borne pollution( Art.9), are all arguably supportive of EA, to the extent that they cover the Convention of EA, to the extent that they cover the Convention area in totality, as opposed to specific speciesarea in totality, as opposed to specific species

• In addition, the Convention establishes protected In addition, the Convention establishes protected areas and provides as follows: “areas and provides as follows: “The Contracting The Contracting Parties shall, individually or jointly, take appropriate Parties shall, individually or jointly, take appropriate measures to protect and preserve rare or fragile measures to protect and preserve rare or fragile ecosystems as well as rare, depleted, threatened or ecosystems as well as rare, depleted, threatened or endangered species of flora and fauna and their endangered species of flora and fauna and their habitats in the Convention area.”habitats in the Convention area.”

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• More over, the provisions concerning More over, the provisions concerning

pollution from oil pollution emergencies (Art. pollution from oil pollution emergencies (Art. 11) and from engineering activities (Art.12) 11) and from engineering activities (Art.12) imply ecosystem wide protection. In fact, Art imply ecosystem wide protection. In fact, Art 12 is categorical: “12 is categorical: “The Contracting Parties The Contracting Parties shall take all appropriate measures to shall take all appropriate measures to prevent, reduce and combat environmental prevent, reduce and combat environmental damage in the Convention area in particular damage in the Convention area in particular the destruction of marine and coastal the destruction of marine and coastal ecosystem…”ecosystem…”

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• Under its provisions for environmental Under its provisions for environmental

impact assessment (EIA), the impact assessment (EIA), the Convention provides for the Convention provides for the establishment of technical guidelines, establishment of technical guidelines, assessment of impacts of projects and assessment of impacts of projects and dissemination of relevant information dissemination of relevant information and consultations among the and consultations among the contracting parties, and including the contracting parties, and including the Organization. Organization.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• Although EIA provisions typically are Although EIA provisions typically are

narrowly applicable to proposed projects narrowly applicable to proposed projects with likely environmental impacts, and with likely environmental impacts, and there is no explicit provision for strategic there is no explicit provision for strategic environmental assessments (SEA) and environmental assessments (SEA) and audit (EA) in the Convention, it may be audit (EA) in the Convention, it may be argued that they provide an important argued that they provide an important regional framework for awareness regional framework for awareness raising and effective implementation of raising and effective implementation of ecosystem approaches.ecosystem approaches.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• The proposed revisions to the Nairobi The proposed revisions to the Nairobi

Convention include clear provisions for Convention include clear provisions for compliance and enforcement of its compliance and enforcement of its provisions, including ecosystem approaches. provisions, including ecosystem approaches. They include urging the contracting parties to They include urging the contracting parties to establish national laws and institutions, and establish national laws and institutions, and undertake exchange of information, undertake exchange of information, assistance and cooperation among assistance and cooperation among themselves and with relevant international, themselves and with relevant international, regional and sub regional organizations.regional and sub regional organizations.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• This would not only lead to more effective This would not only lead to more effective

implementation of EA, but also increase implementation of EA, but also increase integration between national and regional integration between national and regional institutions in the development and institutions in the development and management of projects and programmes, and management of projects and programmes, and especially those having cross sectoral and trans especially those having cross sectoral and trans boundary aspects..boundary aspects..

• On institutional arrangements, the Nairobi On institutional arrangements, the Nairobi Convention provides for “the Organization", Convention provides for “the Organization", which is defined as “which is defined as “the body designated as the body designated as responsible for carrying out secretariat functions responsible for carrying out secretariat functions pursuant to article 16 of this Convention.”pursuant to article 16 of this Convention.”

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• Under Article 16 thereof, the UNEP is Under Article 16 thereof, the UNEP is

identified as the Organization, and it provides identified as the Organization, and it provides the main regional institutional framework for the main regional institutional framework for the implementation of the provisions of the the implementation of the provisions of the Nairobi Convention.Nairobi Convention.

• UNEP provides routine secretariat functions, UNEP provides routine secretariat functions, receives and transmits information, receives and transmits information, coordinates implementation of cooperative coordinates implementation of cooperative activities as agreed by the contracting activities as agreed by the contracting parties, and ensures necessary coordination parties, and ensures necessary coordination with other regional and international bodies.with other regional and international bodies.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• In this regard, UNEP should lead the way in increasing In this regard, UNEP should lead the way in increasing

integration between national and regional institutions integration between national and regional institutions in the development and management of projects and in the development and management of projects and programmes that enhance EA.programmes that enhance EA.

• The conference of parties (COP) is the supreme The conference of parties (COP) is the supreme decision making organ of the contracting parties to decision making organ of the contracting parties to the Nairobi Convention.The last COP 5 held in the Nairobi Convention.The last COP 5 held in November 2007 in Johannesburg, South Africa, made November 2007 in Johannesburg, South Africa, made the following decision: “the following decision: “CP 5/CP 5/2. Protection of 2. Protection of ecosystems and endangered species: 1.ecosystems and endangered species: 1.To To endorseendorse and support the use of the eco-system based and support the use of the eco-system based management approach, including the involvement of management approach, including the involvement of up stream countries, for the conservation of the up stream countries, for the conservation of the coastal and marine areas of the Region.coastal and marine areas of the Region.””

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• COP 5 of the Nairobi Convention also decided as follows COP 5 of the Nairobi Convention also decided as follows

regarding revisions to the Convention: “regarding revisions to the Convention: “To noteTo note the the progress being made in the revision of the Nairobi progress being made in the revision of the Nairobi Convention and to request the Secretariat to organise the Convention and to request the Secretariat to organise the negotiation to finalise the text of the revised Convention negotiation to finalise the text of the revised Convention and to convene a a Conference of Plenipotentiaries to and to convene a a Conference of Plenipotentiaries to adopt the revised Convention by end of December 2009”adopt the revised Convention by end of December 2009”

• The revision of the Nairobi Convention provides an The revision of the Nairobi Convention provides an excellent opportunity to entrench ecosystem approaches excellent opportunity to entrench ecosystem approaches to the management of coastal and marine resources in to the management of coastal and marine resources in the Region.the Region.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contdNairobi Convention ProtocolsNairobi Convention Protocols• There are two protocols established at the There are two protocols established at the

same time as the Convention in 1985: same time as the Convention in 1985: PProtocol Concerning Protected Areas and Wild Fauna rotocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern Africa Region (SPAW) and and Flora in the Eastern Africa Region (SPAW) and Protocol Concerning Co-operation in Combating Marine Protocol Concerning Co-operation in Combating Marine Pollution in Cases of Emergency in the Eastern African Pollution in Cases of Emergency in the Eastern African Region (Emergency Protocol).Region (Emergency Protocol).

• In addition, there is a draft Protocol on Land based In addition, there is a draft Protocol on Land based sources and activities causing marine and coastal sources and activities causing marine and coastal pollution and degradation (LBSA Protocol) which is at an pollution and degradation (LBSA Protocol) which is at an advanced stage of development. advanced stage of development.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• COP 5 of the Nairobi Convention decided as follows: “ToCOP 5 of the Nairobi Convention decided as follows: “To note note

requestrequest the Secretariat to organise the negotiation to finalise the the Secretariat to organise the negotiation to finalise the text of the LBSA protocol and to convenetext of the LBSA protocol and to convene the progress being the progress being made in the revision of the Nairobi Conventionmade in the revision of the Nairobi Convention andand to request to request the the Secretariat to convene a Conference of Plenipotentiaries to Secretariat to convene a Conference of Plenipotentiaries to negotiate and adopt the Protocol by end of December 2009.”negotiate and adopt the Protocol by end of December 2009.”

• The development of the LBSA Protocol to the Nairobi Convention The development of the LBSA Protocol to the Nairobi Convention also presents another excellent opportunity to further entrench an also presents another excellent opportunity to further entrench an ecosystem based approach to the management of coastal and ecosystem based approach to the management of coastal and marine resources. It sets out provisions concerning pollution and marine resources. It sets out provisions concerning pollution and degradation from various sources; measures of implementation degradation from various sources; measures of implementation and enforcement (including EIA, SEA and EA, public awareness and enforcement (including EIA, SEA and EA, public awareness and information dissemination); and institutional and financial and information dissemination); and institutional and financial arrangements. Its institutions are largely similar to those of the arrangements. Its institutions are largely similar to those of the Convention itself.Convention itself.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• The SPAW Protocol is the most direct with The SPAW Protocol is the most direct with

regard to ecosystem approaches as it deals regard to ecosystem approaches as it deals with the thematic areas of biological diversity.with the thematic areas of biological diversity.

• However, as currently drafted, it appears to However, as currently drafted, it appears to adopt a largely species approach as adopt a largely species approach as demonstrated by the annexes forming part of demonstrated by the annexes forming part of the Protocol. The annexes basically list species the Protocol. The annexes basically list species of fauna and flora requiring protection, and of fauna and flora requiring protection, and characterized as endangered or threatened, characterized as endangered or threatened, thus limiting the scope for protection of entire thus limiting the scope for protection of entire ecosystems in the WIO Region.ecosystems in the WIO Region.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• Nevertheless, the SPAW has important ecosystem approach-Nevertheless, the SPAW has important ecosystem approach-

friendly provisions, such as those dealing with the general friendly provisions, such as those dealing with the general obligation of the contracting parties to “obligation of the contracting parties to “…… endeavour to protect endeavour to protect and preserve rare or fragile ecosystems as well as rare, and preserve rare or fragile ecosystems as well as rare, depleted, threatened or endangered species…depleted, threatened or endangered species… (Article 2 (1); (Article 2 (1); the the prohibition of the intentional or accidental introduction of prohibition of the intentional or accidental introduction of alien new or genetically modified species which may cause alien new or genetically modified species which may cause significant or harmful changes to the Eastern African region significant or harmful changes to the Eastern African region (Art 7(1); establishment of protected areas including (Art 7(1); establishment of protected areas including representative samples of all types of ecosystems in the WIO representative samples of all types of ecosystems in the WIO Region (Article 8(2)Region (Article 8(2);;with particular regard, among others, to with particular regard, among others, to rare or fragile ecosystems.rare or fragile ecosystems.

• The system of protected areas perhaps provides the closest The system of protected areas perhaps provides the closest attempt by the SPAW in embracing the ecosystem approach, attempt by the SPAW in embracing the ecosystem approach, as opposed to its predominantly species approach.as opposed to its predominantly species approach.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• To its credit, the SPAW Protocol has important To its credit, the SPAW Protocol has important

public awareness and information provisions, public awareness and information provisions, which should enable public involvement, better which should enable public involvement, better implementation and enforcement, as well as implementation and enforcement, as well as integration of national and regional programmes integration of national and regional programmes and processes.and processes.

• The provisions specifically concern publicity and The provisions specifically concern publicity and notification (Art.14); public information and notification (Art.14); public information and education (Art 15); regional cooperation and education (Art 15); regional cooperation and mutual assistance( Art.16);scientific, technical mutual assistance( Art.16);scientific, technical and management research (Art 17); and and management research (Art 17); and exchange of information (Art. 18).exchange of information (Art. 18).

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• The proposed revisions to the SPAW The proposed revisions to the SPAW

Protocol, alongside the Convention itself, Protocol, alongside the Convention itself, provides the opportunity to re model it provides the opportunity to re model it more towards the ecosystem approach. more towards the ecosystem approach. Apart from moving from the current title Apart from moving from the current title that refers to fauna and flora, it should that refers to fauna and flora, it should move to “biological diversity,” and move to “biological diversity,” and create provisions that are explicitly create provisions that are explicitly ecosystem approach based. ecosystem approach based.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contdThe Emergency ProtocolThe Emergency Protocol• While the Emergency Protocol focuses squarely While the Emergency Protocol focuses squarely

on oil spill pollution incidents of a scale that on oil spill pollution incidents of a scale that causes environmental emergencies, it is arguably causes environmental emergencies, it is arguably ecosystem approach friendly to the extent that it ecosystem approach friendly to the extent that it seeks to protect entire sections of the marine and seeks to protect entire sections of the marine and coastal environment from the adverse impacts of coastal environment from the adverse impacts of oil pollution, and especially of a large scale.oil pollution, and especially of a large scale.

• Oil pollution incidents of the nature anticipated by Oil pollution incidents of the nature anticipated by the Emergency Protocol may be rare, but they the Emergency Protocol may be rare, but they cause serious damage to entire ecosystems, cause serious damage to entire ecosystems, often not discriminating any particular species.often not discriminating any particular species.

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B. Regional Legal and B. Regional Legal and Institutional Frameworks for Institutional Frameworks for EA contdEA contd• Thus the main beneficiary of the Emergency Thus the main beneficiary of the Emergency

Protocol, even not explicitly stated, are the Protocol, even not explicitly stated, are the ecosystems, habitats and biological species ecosystems, habitats and biological species of the entire WIO Region.of the entire WIO Region.

• However, the proposed revisions to the However, the proposed revisions to the Emergency Protocol could include explicit Emergency Protocol could include explicit provisions to deepen the ecosystem based provisions to deepen the ecosystem based approach to the management of coastal and approach to the management of coastal and marine resources and activities in the marine resources and activities in the Region, apart from the existing provisions Region, apart from the existing provisions on awareness and empowerment, and on awareness and empowerment, and institutional provisions.institutional provisions.

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C. Other Regional and sub C. Other Regional and sub regional Legal and Institutional regional Legal and Institutional FrameworksFrameworks• Under this category, mention may be made of Under this category, mention may be made of

region wide projects, such as for the large marine region wide projects, such as for the large marine ecosystems (for example Agulhas-Somali Current ecosystems (for example Agulhas-Somali Current Large Marine Ecosystem (ASCLME); South West Large Marine Ecosystem (ASCLME); South West Indian Ocean Fisheries Commission (SWIOFC); Indian Ocean Fisheries Commission (SWIOFC); and Western Indian Ocean Land Based Activities and Western Indian Ocean Land Based Activities Project (WIO Lab). Others are sub regional Project (WIO Lab). Others are sub regional initiatives like Indian Ocean Commission (IOC); initiatives like Indian Ocean Commission (IOC); Small Islands Developing States (SIDS), etc.Small Islands Developing States (SIDS), etc.

• Add to these, international civil society Add to these, international civil society organizations such as WWF, IUCN, WIOMSA, etcorganizations such as WWF, IUCN, WIOMSA, etc

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D. ConclusionsD. Conclusions

• The above outlines and discussions confirm the The above outlines and discussions confirm the existence of a regional legal and institutional existence of a regional legal and institutional framework for the ecosystem approach to the framework for the ecosystem approach to the management of marine and coastal resources. It management of marine and coastal resources. It has both strengths and weaknesses.has both strengths and weaknesses.

• A current opportunity exists in the Region to align A current opportunity exists in the Region to align the legal and institutional framework under the the legal and institutional framework under the Nairobi convention to a more ecosystem friendly Nairobi convention to a more ecosystem friendly form. In the course of the ongoing revision, the form. In the course of the ongoing revision, the Nairobi convention and its Protocols, particularly Nairobi convention and its Protocols, particularly SPAW, as well as the development of the LBSA SPAW, as well as the development of the LBSA Protocol, should embrace the ecosystem approach.Protocol, should embrace the ecosystem approach.