TL: COMMENTARY TO THE PROPOSAL FOR A DRAFT AGREEMENT UNDER THE CONVENTION ON THE CONSERVATION OF MIGRATORY SPECIES OF WILD ANIMALS SO: Greenpeace International (GP) DT: not dated Keywords: animals oceans protection legislation agreements europe mediterranean greenpeace gp / Part II Commentaries This commentary is divided into two parts. After some general introductory remarks, comments are given on some of articles, where that is necessary for the interpretation of their object and purpose. General remarks The proposed legal basis for the draft Agreement is Article IV paragraph 4 of the 1979 Bonn Convention. This is considered as a more appropriate basis than Article IV paragraph 3 of the Bonn Convention. This latter Article envisages agreements for species which are inclu ded in Appendix II of the Bonn Convention. As Article IV paragraph 4 makes no such restriction, and as at present not all small cetaceans are included in Appendix II, this Article is the appropriate legal basis. There are no differences in the legal consequences between an Agreement under paragraph 3 or paragraph 4 of Article IV of the Bonn Convention. Nevertheless, it would be worth considering to seek the inclusion of all small cetacean species of the Mediterranean Sea Area in Appendices I and II of the Bonn Convention. Inclusion in Appendix I obliges Parties to the Bonn Convention to take measures in accordance with article II of the Convention. A condition for the inclusion in Appendix I is that there is reliable evidence, including the best scientific evidence available, indicates that a species is endangered (Bonn Convention, Article III(2)). Inclusion of the small cetaceans of the Mediterranean Sea Area in Appendix II would oblige Range State of these species to endeavour to conclude Agreements which will benefit small cetaceans (Bonn Convention, Article IV(1)). Not all the States who exercise jurisdiction or control over parts of the Mediterranean and whose activities may be relevant for the protection of small cetaceans are a Party to the Bonn Convention. This does not prevent them from participating in an Agreement under Article IV(4) of the Bonn Convention however. Article V(2) of the Bonn Convention stipulates that agreements should cover the whole of the reach of a migratory species and should be open for to accession by all Range States whether or not they are Parties to the Bonn Convention. The structure of the proposed draft is based upon the draft Agreement for the Protection of Small Cetaceans in the North Sea and the Baltic Sea. It has however substantially been amended and reorganised. A major difference is that the present proposal does not include an annexed management plan. Three reasons can be mentioned. First, as all obligations which should ensure the protection of small cetaceans have now been included in the Agreement itself, a management scheme would have little added value. secondly, a major advantage of a management scheme could further be that the research actions to be undertaken could be elaborated in more detail. In the present draft however the proposal research measures have a limited scope. Consequently, a management plan has not been deemed necessary. Thirdly, an advantage of a management plan could be that it may be more flexible than an agreement. As the present draft does envisage a flexible amendment procedure, also in this respect there are no overriding reasons for a management plan. Commentary to the Draft Agreement PREAMBLE The list of threats enumerated in the second 'RECOGNISING' covers to our information the threats to small cetaceans in order of their importance. Other threats could also be included if deemed necessary. Article II (1) The definition of the geographical scope is based on the definition included in art. 1(1) of the 1976 Barcelona Convention. It has been extended however so as to include the waters west of the Straits of Gibraltar. This extension has been induced by the fact that this area appears to be an important migrating route to the Mediterranean Sea proper. (2) The definition of the material scope of the agreement does not only cover endemic populations but all small cetaceans which at any time are present in the Mediterranean Sea Area. (3) The definition of small cetaceans is taken from the 1990 draft agreement on the protection of small cetaceans in the North Sea and the Baltic Sea. (5)(6) The definition of conservation status is based upon the definitions included in Article I of the Bonn Convention. It has been adjusted for application to the Mediterranean Sea Area, and par. 4 has been substantially amended. Although some elements in the definitions could benefit from linguistically amendments, the choice has been made to remain as close as possible to the widely accepted definitions of the Bonn Convention. This is true as well for the concept 'historical coverage' included in par. 4. Although this concept is open to criticism for various reasons, it has been decided to retain the concept in this draft as there are no clear alternatives. (8) The definition of habitat is based upon Article I of the Bonn Convention, and has been amended by including a number of examples, so as to make the concept somewhat more specific and give an indication as to which areas may constitute a habitat. (9) The definition of Range States covers not only Mediterranean coastal States, but all States, which exercise jurisdiction or control over particular activities in the Mediterranean Sea, which influence the conservation status of small cetaceans. It has appeared that for instance fisheries activities of States not bordering the Mediterranean, such as South Korea, may have significant adverse effects on the conservation status of small cetaceans. Although it is a matter of policy whether such States should be invited to participate in the proposed Agreement, it seems desirable to keep the option open to direct the obligations to all Sates whose activities may threaten cetaceans. (10) This definition is taken from, with minor amendments, from the USA MMPA Act. Article III The obligations contained in Article III are elaborated in the following articles. (1) In the general obligation the terms 'jurisdiction' and 'control' have been included so as to cover both the obligations of States which exercise jurisdiction over coastal zones (territorial waters, exclusive fisheries zone, exclusive economic zone) as well as obligations with regard to activities beyond these zones over which the Parties exercise control. Article V Pollution of the marine environment from different sources is already covered by a number of international agreements, such as the Barcelona Convention and its protocols, the 1973/1978 MARPOL Convention, and international agreements relevant to the atmospheric deposition of pollutants. Hence it is not necessary to develop a new regime for these problems in the present Agreement. (1) In view of the already existing agreements, it is deemed sufficient if the Mediterranean States ratify and implement these agreement to a greater extent than has been the case up to now. It is doubtful whether this paragraph will be politically feasible. There are few precedents for a treaty containing a provision on the ratification and implementation of other international instruments. (3) This paragraph is included to guarantee that the results of scientific research will not be left without effect. New measures should preferably be taken through existing international agreements to prevent the fragmentation of action undertaken in relation to pollution of the marine environment. Article VI Measures taken by a state in accordance with this article will apply to all fishing vessels flying its flag and to all fishing vessels in the territorial sea, and where applicable in the exclusive economic zone or fisheries zone of a Party. (1) This paragraph aims to achieve that Parties in their fisheries policy will take measures to tackle the problem of the reduction of food resources of small cetaceans. (3) The prohibition of driftnets reflects widespread concern over this problem. Support for the inclusion of this paragraph can be found in the United Nations General Assembly Resolution 44/225 which contains a moratorium on the use of driftnets as of 1992. The resolution was adopted without a vote. Article VII It may prove difficult to designate specific habitats. The knowledge of habitats of small cetaceans is limited. It seems important however to keep the possibility of designating habitats open. Habitats may comprise large areas inside as well as outside the territorial sea of the Mediterranean coastal States. Article VIII Scientific research is necessary to increase the knowledge on small cetaceans. The obligation in this article supplements the obligations already contained in the Articles V, VI and VII. Article XI The information which is to be transmitted under this article is considered as essential for an adequate conservation of small cetaceans. The information contained in the reports is transmitted through the Secretariat to the Parties, the Meeting of the Parties and the Scientific Committee, according to the appropriate provisions. (1)(b)(c)(d) These obligations also apply in the event that the number of cetaceans involved is nil. (2) To make the information transmitted publicly available will contribute to the effectiveness of the protection of small cetaceans. Article XII It is important that the Parties to this Agreement shall hold regular meetings. Time between these meetings should allow for the effective implementation of the measures taken by these meetings. However, the period between meetings should be limited to ensure regular review of the implementation of this Agreement. In view of these considerations, the maximum interval has been established at three years. (3)(b) This provision aims to ensure that the review of the implemen tation by the parties is supplemented by the possibility to undertake adequate action by the Meeting of the Parties so as to improve future compliance. (6) It is of great importance that governmental and non- governmental organisations are allowed to be observers in view of their expertise and involvement in the protection of small cetaceans. Organisations that would qualify are for example environmental and fisheries organisations. Article XIII It is of importance that the Meeting of the Parties receives scientific backup. The Scientific Committee should evaluate the reports of the Parties and use them to elaborate recommendations to the Meeting of the Parties. The choice to let the Committee meet shortly before the Meeting of the Parties is inspired by the practice in this regard in the International Whaling Convention. Article XIV The choice for the Secretariat of the Bonn Convention is inspired by practical considerations. Another option would be to place the secretarial tasks within the institutional framework of the Barcelona Convention Article XV These provisions are common to a great number of international agree ments and have proven to be indispensable to ensure a broad acceptance of agreements. Article XVI In general an agreement like the present one can only operate effectively with adequate funding from the Parties. This applies in particular to the activities mentioned in sub-paragraphs 2 (b) and (c) when they are to be carried out on an international level in addition to funding such activities at a national level. Article XVII In view of the importance of having a uniform set of rules, the choice has been made not to allow parties to make reservations to accepted amendments. A precedent to this is found in art. 9(2) of the 1987 Montreal Protocol to the Vienna Convention on the Protection of the Ozone-Layer. Article XVIII As in general states will not subject themselves to arbitration unless they explicitly agree to this, the modalities for the settlement of disputes are left to the parties to such a dispute. Article XIX As with amendments this article should guarantee a uniform and conse quently effective regime. Although this proposal may appear hard to accept for some states, it does present an adequate starting point for negotiations. Article XXI This is a standard provision in agreements which cover issues over which the European Economic Community exercises competencies. Article XXIII The choice for entry into force upon a third entity becoming Party to the Agreement is motivated by the consideration that the Agreement may already be effectively applied when three of the larger Mediterranean States become Party to the Agreement, like for instance France, Spain and Italy. The possibility of three of the smaller countries being the first States to ratify is small, taking into account the difficulties they would encounter when being forced to implement the Agreement by themselves. The Article thus specifically aims at the possibility of entry into force upon ratification by some of the larger Mediterranean Sea States. The languages of the Agreement are those of the Barcelona Convention. COMMENTARY TO THE PROPOSAL FOR DRAFT AMENDMENTS TO THE SPECIALLY PROTECTED AREAS PROTOCOL TO THE 1976 BARCELONA CONVENTION With a view to being able to designate important habitats in the range of small cetaceans as specially protected areas it is necessary to amend Articles 2 and 6 of the Specially Protected Areas Protocol of the Barcelona Convention. The amendment to Article 2 aims at including sea areas beyond the territorial waters within the scope of the Protocol. The present text of Article 2 brings only the territorial sea under the coverage of the Protocol. As the range of small cetaceans is not limited to the territorial sea, it is necessary to extend the geographical scope. The text of article 2 suggested would replace the existing article 2. The introduction of a new Article 6(5) aims at establishing a basis for co-operation between States with jurisdiction over areas within the range of small cetaceans.