By: Mark J. Spalding, President, The Ocean Foundation
AVOIDING THE PAPER PARK: HOW CAN WE HELP MPAs SUCCEED?
As I mentioned in Part 1 of this blog about ocean parks, I attended WildAid’s 2012 Global MPA Enforcement Conference in December. This conference was the first of its type to draw from a wide array of government agencies, educational institutions, non-profit groups, military personnel, scientists, and advocates from around the world. Thirty-five nations were represented, and the attendees were from organizations as diverse as the US oceans agency (NOAA) and Sea Shepherd.
As is often noted, too little of the world’s ocean is protected: In fact, it is only about 1% of the 71% that is ocean. Marine protected areas are rapidly expanding around the world because of the increasing acceptance of MPAs as a tool for conservation and fisheries management. And, we are well along the way to understanding the science that underpins good biological productivity design and the positive spillover effects of protected area networks on areas outside the boundaries. The expansion of protection is great. What comes next matters more.
We now need to focus on what happens once we have an MPA in place. How do we make sure that MPAs succeed? How do we make sure the MPAs protect habitat and ecological processes, even when those processes and life support systems are not fully understood? How do we ensure that there is sufficient state capacity, political will, surveillance technologies and financial resources available to enforce MPA restrictions? How do we ensure sufficient monitoring to allow us to revisit management plans?
It is these questions (among others) that the conference attendees were trying to answer.
While the fishing industry uses its significant political power to oppose catch limits, minimize protections in MPAs, and, maintain subsidies, advances in technology are making large marine areas easier to monitor, to ensure early detection, which increases deterrence and increases compliance. Normally, the ocean conservation community is the weakest player in the room; MPAs embed in law that this weaker party wins in this place. However, we still need adequate resources for interdiction and prosecution, as well as political will – both of which are hard to come by.
In smaller artisanal fisheries, they can often apply less expensive, easier to use technology for monitoring and detection. But such locally managed areas are limited in the communities’ ability to apply them to foreign fleets. Whether it starts bottom up, or top down, you need both. No law or legal infrastructure means no real enforcement, which means failure. No community buy-in means failure is likely. Fishers in these communities have to “want” to comply, and we need them to actually participate in enforcement to manage the behavior of cheaters, and small-scale outsiders. This is about “do something,” it is not about “stop fishing.”
The overall conclusion from the conference is that it is time to reassert the public trust. It must be the government that is exercising its trust obligations to protect natural resources via MPAs for current and future generations. Without aggressive enforcement of the laws on the books the MPAs are meaningless. Without enforcement and compliance any incentives for resource users to steward the resources are equally weak.
The Conference Structure
This was the first conference of this type and it was motivated in part because there is new technology for policing large marine protected areas. But it is also motivated by hard-nosed economics. The vast majority of visitors are unlikely to do intentional harm or conduct illegal activities. The trick is to address the challenge of violators whose capacity is enough to do a great deal of harm—even if they represent a very small percentage of the users or visitors. Local and regional food security, as well as local tourism dollars are at stake — and dependent on enforcement of these marine protected areas. Whether they are near to shore or out in the high seas, these legitimate activities in MPAs are relatively challenging to protect—there simply are not enough people and boats (not to mention fuel) to provide thorough coverage and prevent illegal and harmful activities. The MPA enforcement conference was organized around what is referred to as the “enforcement chain” as the framework for all that needs to be in place for success:
- Level 1 is surveillance and interdiction
- Level 2 is prosecution and sanctions
- Level 3 is sustainable finance role
- Level 4 is systematic training
- Level 5 is education and outreach
Surveillance and interdiction
For each MPA, we must define objectives that are measurable, adaptive, use available data, and have a monitoring program that is constantly measuring for the attainment of those objectives. We know that most people, properly informed, strive to comply with the rules. Yet the violators have the potential to do great, even irreversible harm—and it is in early detection that surveillance becomes the first step to proper enforcement. Unfortunately, governments are generally understaffed and have too few vessels for even 80% interdiction, much less100%, even if a potential violator is spotted in a specific MPA.
New technologies such as unmanned aircraft, wave gliders, etc. can monitor an MPA for violations and they can be out doing such surveillance nearly constantly. These technologies increase the potential for spotting violators. For example, wave gliders can basically operate using renewable wave and solar energy to move and transmit information about what is happening in a park 24/7, 365 days a year. And, unless you are sailing right next to one, they are nearly invisible in normal ocean swells. Thus, if you are an illegal fisher and you are on notice that there is a park that is patrolled by wave gliders, you know there is a very strong possibility that you will be seen and photographed and otherwise monitored. It is a little like posting signs warning a motorist that there is a speed camera in place in a highway work zone. And, like speed cameras wave gliders cost much less to operate than our traditional alternatives that use coast guard or military vessels and spotting planes. And perhaps as important, the technology can be deployed in areas where there may be a concentration of illegal activities, or where limited human resources cannot be deployed effectively.
Then of course, we add complexity. Most marine protected areas permit some activities and prohibit others. Some activities are legal at certain times of the year and not others. Some allow, for example, recreational access, but not commercial. Some grant access to local communities, but ban international extraction. If it is a fully closed area, that is easy to monitor. Anyone who is in the space is a violator—but that is relatively rare. More common is a mixed-use area or one that allows only certain kinds of gear—and those are much more difficult.
However, via remote sensing and unmanned surveillance, the effort is to ensure early detection of those who would violate the objectives of the MPA. Such early detection increases deterrence and increases compliance at the same time. And, with the help of communities, villages or NGOs, we can often add participatory surveillance. We see this often in island fisheries off Southeast Asia, or in practice by fisheries coops in Mexico. And, of course, we note again that compliance is what we are really after because we know that a majority of people will comply with the law.
Prosecution and sanctions
Assuming we have an effective surveillance system that allows us to spot and interdict violators, we need an effective legal system to be successful with prosecutions and sanctions. In most countries, the biggest twin threats are ignorance and corruption.
Because we are talking about ocean space, the geographic area over which authority extends becomes crucial. In the US, states have jurisdiction over the near shore coastal waters out to 3 nautical miles from the mean high tide line, and the federal government from 3 to 12 miles. And, most nations also assert an “Exclusive Economic Zone” up to 200 nautical miles. We need a regulatory framework to spatially govern marine protected areas through boundary setting, use restrictions, or even temporal access limitations. Then we need subject matter (the authority of a court to hear cases of a particular type) and territorial legal jurisdiction to enforce that framework, and (when needed) issue sanctions and penalties for violations.
What is needed is a professional cadre of knowledgeable, experienced law enforcement officers, prosecutors, and judges. Effective law enforcement requires sufficient resources, including training and equipment. Patrol personnel and other park managers need clear authority to issue citations and confiscate illegal gear. Likewise, effective prosecutions also require resources, and they need to have clear charging authority and be adequately trained. There must be stability within the prosecutors’ offices: they cannot be constantly given temporary rotations through the enforcement branch. Effective judicial authority also requires training, stability and familiarity with the MPA regulatory framework in question. In short hand, all three enforcement pieces need to meet Gladwell’s 10,000-hour rule (in Outliers Malcolm Gladwell suggested that the key to success in any field is, to a large extent, a matter of practicing a specific task for a total of around 10,000 hours).
The use of sanctions should have four goals:
- Deterrence must be sufficient to deter others from the crime (i.e. legal sanctions are a significant economic incentive when used correctly)
- Punishment that is fair and just
- Punishment that matches the gravity of the harm done
- Provision for rehabilitation, such as providing alternative livelihoods in the case of fishers in marine protected areas (especially those who might fish illegally driven by poverty and the need to feed their family)
And, we are now also looking at financial sanctions as a potential revenue source for mitigation and remediation of damage from an illegal activity. In other words, as in the concept of “polluter pays,” the challenge is to figure out how the resource can be made whole again after a crime has been committed?
Sustainable finance role
As noted above, protective laws are only as effective as their implementation and enforcement. And, proper enforcement requires sufficient resources to be provided over time. Unfortunately, enforcement across the globe is usually underfunded and understaffed—and this is especially true in the natural resource protection arena. We simply have too few inspectors, patrolling officers, and other personnel trying to prevent illegal activities from theft of fish from marine parks by industrial fishing fleets to pot growing in national forests to trade in Narwhal tusks (and other wild animal products).
So how are to we pay for this enforcement, or any other conservation interventions? Government budgets are increasingly unreliable and the need is continuous. Sustainable, recurring financing must be built in from the very beginning. There are a number of options—enough for a whole other blog—and we just touched on a few at the conference. For example, some defined areas of attraction to outsiders such as coral reefs (or Belize’s Shark-Ray Alley), employ user fees and entry fees that provide revenue that subsidizes operations for the national marine park system. Some communities have established conservation agreements in return for a change in local use.
Socioeconomic considerations are key. Everyone must be aware of the effects of restrictions on areas that were previously open access. For example, community fishers who are asked not to fish the resource must be offered alternative livelihoods. In some places, eco-tourism operations have provided one alternative.
As I said above, effective law enforcement requires training of enforcement officials, prosecutors and judges. But we also need governance designs that produce cooperation between environmental and fisheries management authorities. And, part of the education needs to extend to include partners in other agencies; this can include navies or other authorities with responsibility over ocean water activities, but also agencies like port authorities, customs agencies that need to watch for illegal imports of fish or endangered wildlife. As with any public resources, MPA managers must have integrity, and their authority has to be applied consistently, fairly, and without corruption.
Because funding for training of resource managers is as unreliable as other forms of funding, it is really great to see how MPA managers share best practices across locations. More important, on-line tools to help them do so reduce the travel for training for those in remote locations. And, we can recognize that the one-time investment in training can be a form of a sunk cost that is embedded in the MPA management authority rather than a maintenance cost.
Education and outreach
It is possible that I should have begun this discussion with this section because education is the foundation for the successful design, implementation and enforcement of marine protected areas—especially in near shore coastal waters. Enforcing regulations for marine protected areas is about managing people and their behavior. The goal is to bring about the change to encourage the greatest possible compliance and thus the lowest possible need for enforcement.
- “Awareness” is about telling them what is expected of them.
- “Education” is to tell them why we are expecting good behavior, or to recognize the potential for harm.
- “Deterrence” is to warn them about the consequences.
We need to use all three strategies to make change happen and compliance habitual. One analogy is the use of seatbelts in cars. Originally there were none, then they became voluntary, then they became legally required in many jurisdictions. Increasing seatbelt use then depended on decades of social marketing and education regarding the life-saving benefits of wearing a seatbelt. This additional education was needed to improve compliance with the law. In the process, we created a new habit, and behavior was changed. It is now automatic for most people to put on a seatbelt when they get into a car.
Time and resources spent on preparation and education pay off many times over. Engaging local people early, often and deeply, helps nearby MPAs succeed. MPAs can contribute to healthier fisheries and thus improve local economies—and thus represent both a legacy and an investment in the future by the community. Yet, there can be understandable hesitation about the effects of restrictions being placed on areas that were previously open access. Proper education and engagement can reduce those concerns locally, especially if the communities are supported in their efforts to deter outside violators.
For areas such as the high seas where there are no local stakeholders, education must be as much about deterrence and consequences as awareness. It is in these biologically important but distant regions that the legal framework must be particularly strong and well articulated.
While compliance may not become habitual immediately, outreach and engagement are important tools in assuring cost-effective enforcement over time. To achieve compliance we also need to make sure we inform stakeholders about MPA process and decisions, and when possible consult then and obtain feedback. This feedback loop can get them actively involved and help everyone identify benefits that will come from the MPA(s). In places where alternatives are needed, this feedback loop can also seek collaboration to find solutions, especially in regard to socio-economic factors. Last, because co-management is vital (because no government has unlimited resources), we need to empower stakeholders to help with awareness, education, and surveillance in particular make enforcement credible.
For each marine protected area, the first question must be: Which combinations of governance approaches are effective in achieving conservation objectives in this place?
Marine protected areas are proliferating—many under frameworks that go far beyond simple no-take reserves, which makes enforcement more complex. We are learning that governance structures, and thus enforcement, must adapt to a variety of circumstances—rising sea levels, changing political will, and of course, the growing number of large protected areas where much of the reserve is “over the horizon.” Perhaps the fundamental take away lesson of this first international conference had three parts:
- The challenge of making MPAs succeed spans local, regional, and international boundaries
- The advent of new affordable, unmanned wave gliders and other cool technology can assure larger MPA monitoring but the right governance structure must be in place to impose consequences.
- Local communities need to be engaged from the get go and supported in their enforcement efforts.
The majority of MPA enforcement is necessarily focused on catching the relatively few willful violators. Everyone else is likely to act in compliance with the law. Making effective use of limited resources will help ensure that well-designed and well-managed marine protected areas further the overarching goal of healthier oceans. It is that goal that we at The Ocean Foundation work towards every day.
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