This article has been provided by The Hon Robert Hill AO, and is the original presentation at Australian Law Council 3rd Future of Environmental Law Symposium in Sydney, Friday 8 November 2013. Global Oceans Governance and the High Seas The Hon Associate Professor Robert Hill AO My subject is the quest for better governance of the high seas, the oceans comprising almost half of the world’s surface, particularly in relation to sustainable use and conservation.
I’m speaking as a former public policy practitioner and now as an advocate for the development of good public policy. The days when I could justify speaking as a lawyer are long past.
I was invited to speak as a member of the Global oceans Commission. The Commission comprises a group of past and present public figures with a commitment to the best governance of the high seas.
The Commission is working to a background of increasing threats that range from the well understood, such as overfishing, to the less well understood such as the consequences of anthropogenic greenhouse gas emissions. The latest evidence suggests the oceans might be absorbing 90% of trapped heat and 25% of carbon dioxide emissions. Human behaviour is said to be causing seawater to acidify at a rate possibly unprecedented in 300 million years.
The Commission is led by Jose Maria Figueres, former President of Costa Rica, Trevor Manual Minister in the Presidency in South Africa and David Milliband, former Foreign Secretary in the UK. It is supported by a secretariat out of Somerville College in Oxford.
Ultimately the mandate of the Commission is to make recommendations regarding cost effective, pragmatic and politically feasible reforms of high seas governance, management and enforcement.
To be serious about the issue of governance of the high seas takes patience, perseverance and longevity. It could be said that the debate started in the 17th century when the Dutch jurist Hugo Grotius coined the concept of “freedom of the high seas”. The resources of the high seas were thought to be boundless. The oceans were international territories for all to exploit.
Fast forward a few centuries. With rapidly increasing populations and the industrial revolution, pressures upon and competition for marine resources were intensifying, states were unilaterally claiming extended jurisdictions over the oceans and the need for global rules was becoming obvious.
In 1956 the UN held its first Conference on the Law of the Sea ( UNCLOS 1) which resulted in four treaties : The Convention on the Territorial Sea and Contiguous Zone, the Convention on the Continental Shelf, the Convention on the High Seas and the Convention on Fishing and Conservation of Living Resources of the High Seas.
UNCLOS 1 was followed by UNCLOS 2 in 1960 and then UNCLOS 3 in 1973 which produced the United Nations Law of the Sea Convention. The Convention was opened for signature in 1982 and came into force in 1994.
In general terms the Convention provided for governance within defined national jurisdictions. What it didn’t do, with one exception, was to provide governance beyond the Extended Economic Zones.
The exception was in relation to seabed mining, where it did establish an innovative regime for exploration and mining and to collect and distribute the seabed mining royalty consistent with the principle of the high seas being part of the common heritage of mankind.
The water column beyond the national jurisdictions was left untouched. The problem in leaving the status of the high seas as global commons without management rules, was that no State or group of States had specific responsibility to ensure sustainable use and conservation.
It is true that the Convention does establish general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, but there is no enforcement mechanism. Thus governance of the high seas is often referred to as the unfinished business of UNCLOS.
Its not as if there is no governance. Some liken governance of the high seas to a patchwork quilt. Some patches are in place. I mentioned seabed mining. Other patches include fisheries agreements under the UN Fishstocks Agreement, rules for navigation and shipping under the IMO and rules to prevent seabed dumping under the London Convention.
But there are many missing pieces. The question is whether to continue to find specific sectoral responses to particular threats as they emerge, or to encourage development of an overall high seas governance regime. The patchwork approach is many ways simpler, but it is also responsive. A high seas wide governance regime would hopefully be able to deal with unanticipated threats. That would seem at least conceptually to represent better practice.
Thus efforts have been underway for some years to explore the possibility of a new Implementing Agreement (IA)under UNCLOS to address sustainable use and conservation of the high seas. In 1999,when I was Environment Minister, the Australian government took the issue to the UN Commission for Sustainable Development, arguing that the issue should be put on the international sustainability agenda. At first only Canada was supportive, which is a bit ironic as Canada is now one of the States standing out against an Implementing Agreement.
The CSD did however take up the issue which led to the UN Secretary General producing a report and then the UN General Assembly ( UNGA)by resolution in 2003 inviting regional and other bodies to investigate the threats and risks to vulnerable and threatened marine ecosystems and biodiversity in Areas Beyond National Jurisdictions (ABNJ).
One year later UNGA called on States to set up an ad hoc open ended informal working group to study issues relating to the conservation and sustainable use of Biodiversity in areas beyond national jurisdictions (BBNJ).
The Working Group first met in 2006. I was privileged to Co-Chair the second meeting of the Working Group in 2008. We looked at more effective implementation and enforcement of existing agreements, development of an effective Environmental Impact Assessment (EIA) tool for ocean management, development of area based management tools (MPAs )and issues relating to sustainable use of marine genetic resources.
The issue of an Implementing Agreement was always in the background of early meetings of the Working Group, but it was obvious that a great deal of confidence building would be necessary to bring it to the fore. The breakthrough came in 2010 at the 4th meeting of the Working Group when a recommendation was adopted to initiate a process on the legal framework for the conservation and sustainable use of BBNJ including through the possible development of a multilateral agreement under UNCLOS.
Moving forward to the 2012 UN Conference on Sustainable Development (Rio+20). The outcomes document as adopted said, “we commit to address, on an urgent basis, the issue of conservation and sustainable use of marine biodiversity of ABNJ including by taking a decision at UNGA 69 on the development of an international instrument under UNCLOS.
In UN terms that was a huge breakthrough. It meant that a decision on whether or not to commence a negotiation would be taken by about September 2015.
This year, after holding two workshops, the Working Group met for the 6th time. It recommended that UNGA request the Co-Chairs of the Working group to invite Member States to submit their views on the scope, parameters and feasibility of an international instrument under the Convention and that these submissions be debated at next year’s meeting of the Working Group leading to the 2015 GA decision.
Finally therefore the process is reaching the point where it is important to think seriously about what should be included in such an instrument. It is clear that such an instrument will have to cover sustainable use and conservation as well as access to benefit sharing of marine genetic resources. It will also have to provide for management ,what the Pew Conservation Group , one of the partners of the GOC, describes as “the establishment of an effective centralized monitoring, control, surveillance, compliance and enforcement mechanism for activities on the high seas”.
In looking for precedents to guide the consideration of possible content within a new IA, the nearest parallel will be found in in work under the Convention on Biodiversity (CBD). The CBD came into force in December 1993 and aims for sustainable use and conservation of biodiversity and fair and equitable sharing of benefits arising from the use of genetic resources.
Whilst the primary focus of the CBD relates to territory within the jurisdictions of its member states, its members can agree to be bound in their activities in ABNJ. Furthermore its experience in conservation of coastal biodiversity provides useful precedents in design of Environmental Impact Statements and area based conservation mechanisms, which would be relevant in the design of an IA under UNCLOS.
Furthermore the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization, adopted under the CBD in 2010, shows that it is possible to design and have accepted a regime for the sharing of the benefits of genetic resources. It must be acknowledged that the principle of sharing of benefits under the protocol on mutually agreed terms within national jurisdictions , is much less complex than when applied to the sharing of benefits from the global commons.
In relation to a possible management regime, and also on the question of sharing of benefits from the global commons, the International Seabed Authority provides a useful precedent. The Authority is responsible for regulating sea bed mining beyond areas of national jurisdiction as referred to earlier in this presentation. The Authority was established under UNCLOS and whilst a 1994 Implementing Agreement limited its powers, it has nevertheless been able to issue regulations covering exploration of certain mineral deposits such as polymetallic nodules. It has struggled with issues such as definition of areas to be allocated to contractors for exploration, fees to be paid, and overlapping claims, but it does have 20years experience and has built up a considerable jurisprudence.
Whilst there has not been a sharing of benefits as there has not as yet been mining, the Authority has the responsibility under UNCLOS “to provide for the equitable sharing of financial and other economic benefits derived from activities in the Area “.The Area in this instance is the seabed and ocean floor beyond the Exclusive Economic Zone or the recognized continental shelf of a country.
For precedents from specific sustainable use and conservation measures already covering parts of the high seas, its helpful to look at the UN Fish Stocks Agreement, also referred to earlier in this paper, which came into force in 2001. This is also an Implementing Agreement under UNCLOS. It covers Straddling Fish Stocks and Highly Migratory Fish Stocks.
The Agreement provides a framework for cooperation in the conservation and management of the resource pursuant to the obligations under the Convention which requires States to cooperate in the conservation of fish stocks. In particular the Agreement provides that only member countries of a Regional Fisheries Organisation ( RFO) are allowed to fish in the area covered by that RFO, that non member counties may not authorize their vessels to fish in the area covered by the RFO and that member countries must agree on quotas and allocation of catches.
The Fish Stocks Agreement provides precedents for conservation measures in relation to fisheries which might be incorporated in a new Implementing Agreement covering biodiversity more generally.
Fortunately, as was said earlier, while negotiating a new Implementing Agreement on the issue of sustainable use and conservation, the high seas are not devoid of governance. The UN Fish Stocks Agreement not only contains precedents which can help in the drafting of a new IA, but the Agreement and the Regional Fisheries Management Organisations under its umbrella, comprise the most important of the existing patchwork measures. Further strengthening and improving RFMOs is therefore very important in itself.
Beyond that there are other players adding important pieces to the quilt. The FAO Compliance Agreement and the FAO Code for Responsible Fisheries complement the UN framework in relation to fishing on the high seas. Also the FAO through the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA) which is yet to be implemented can be very important in the future.
The IMO in its role in preventing pollution from large fishing vessels through the MARPOL Convention also adds value. There are in fact many agreements and organisations contributing to the current patchwork of governance of the high seas, which whilst not providing comprehensive governance, should not be sold short.
The last category of influence I wanted to mention are resolutions of the UN General Assembly, which because they are non-binding, are often discounted in discussions of governance of the high seas. The continuing debates and resolutions calling upon member states to improve performance in the sustainable use and conservation of the high seas, with particular focus on destructive practices such as deep sea bottom trawling, have resulted in instances of improved management.
In conclusion, there is a strong argument to complete the business of UNCLOS and negotiate an overarching agreement for sustainable use and conservation of the high seas. It is better to have the rules in place before exploitative pressure becomes overwhelming. Furthermore there are precedents which will help States as they prepare submissions for next year’s more intense debate within the UN. But even on a good day, it must be conceded that it will be many years before an IA is negotiated, agreed and comes into force. Then there will be many more years in development of protocols and practices. Furthermore it will never be comprehensive. For example responding to damage resulting from increasing greenhouse gas emissions will be dependent on other processes. Therefore, even when committed to a new IA, there is still a good argument to continue work on the existing patchwork , with more pieces put in place and others strengthened. It may not be elegant governance but that’s the way it is.
Kellehers Australia has permission from The Hon Robert Hill AO to use and distribute this work . FOR A PRINTABLE VERSION OF THIS ARTICLE CLICK HERE FOR THE PDF VERSION.