Governance of marine areas beyond national jurisdictions

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  • 2012•03•27

    Marjo Vierros, Anne McDonald and Salvatore Aricò

    “This article is part of UNU’s Rio+20 series, featuring research or commentary on the conference’s themes
    of green economy, poverty eradication and the institutional framework for sustainable development.”

    Oceans cover more than 70 percent of the Earth’s surface and account for 95 percent of the biosphere. The open oceans (pelagic) and deep seas (benthic) are the largest biomes of our biosphere in both surface area and volume. It therefore is not surprising that the Earth, viewed from space, was nicknamed the “Blue Planet”.

    The majority of the world’s oceans lies far beyond the coasts of individual countries. Our collective lack of knowledge about the depths of the ocean has resulted in these areas being long considered remote, hostile and biologically barren. Although the deep ocean has captured the imagination of explorers, the vast majority of the world’s population has not given them much thought, and their management and conservation have taken a back seat.

    In fact, recent research — such as the Census of Marine Life – or Tony Koslow’s The Silent Deep — has shown that the remote deep and open oceans host a major part of the world’s biodiversity and are vital for our survival on Earth. Our local and global economies, livelihoods and well-being are directly tied to what the ocean provides.

    These benefits include food — in particular, the fisheries that the United Nations Food and Agriculture Organization estimates provide more than 1.5 billion people globally with almost 20 percent of their average per capita intake of animal protein.

    Life in the deep sea also has been found to play a fundamental role in global biogeochemical cycles, including nutrient regeneration and production of oxygen, as well as the maintenance of the Earth’s climate through the global carbon cycle. An estimated half of the carbon in the atmosphere that becomes bound or “sequestered” in natural systems is cycled into the seas and oceans. Not only do oceans represent the largest long-term sink for carbon,, but some 93 percent of the Earth’s CO2 is stored and cycled through the oceans.

    In addition, deep and open oceans represent the largest reservoir of genetic resources (material derived from organisms), including some of major interest for commercial and industrial applications, including, for example, cancer-curing medicines.

    Thus, without the oceans, life as we know it would not be possible.

    Balancing high seas freedoms and responsible management

    Despite their high biodiversity, the deep and open oceans that are beyond the national jurisdiction of coastal countries are some of the least protected areas on Earth. This may have to do with their status as a “global commons”, where their ownership is shared by all countries and their citizens, and thus their conservation is not a specific responsibility of any one country or group. The oceans’ resources were long thought to be endless, and their use was primarily guided by the concept of “freedom of the seas”.

    Mare Liberum, or freedom of the seas, was a principle coined by the Dutch jurist and philosopher Hugo Grotius in 1609. According to this principle, the sea was considered to be international territory, and all nations were free to use it for seafaring trade. Oceans were viewed as a source of fish protein and as routes for transporting commodities, cruise-ship tourism, military activities or the laying of underwater cables, all with practically no strings attached.

    The United Nations Convention on the Law of the Sea (UNCLOS), adopted in 1982, entered into force in 1994 and often considered to be the “constitution for the oceans”, similarly provides that the high seas are open to all States in accordance with the freedom of the high seas. This includes navigation, overflight, fishing, scientific research, laying of submarine cables and pipelines, and construction of artificial islands and other installations permitted under international law.

    The text of UNCLOS, which balances freedom with responsibility, may be viewed as an emerging understanding that the mounting pressures on oceans — which include fishing, shipping, pollution, ocean dumping, and oil, gas and mineral exploration — could result in a “tragedy of the commons”.

    In the 1980s, modern technology such as faster ships and refrigeration enabled the exploitation of deeper and more distant areas, resulting in loss of biodiversity and depletion of fish stocks, a trend that continues today. All recent global environmental assessments have found serious declines in marine living resources, losses of habitats, elevated pollution levels, poor water quality in many areas, and overall deterioration of the marine environment exacerbated by the effects of climate change and, in the future, ocean acidification. Economies on both local and global scales are adversely affected by such trends that put the capacity of the marine environment beyond its sustainable limit.

    The growing body of scientific research documenting resource depletion, the nearing of ecological limits and the worsening state of the ocean environment indicates that the era of the freedom of the seas is over. In fact, the oceans are already being increasingly regulated. In addition to UNCLOS, other international agreements (such as the Convention on Biological Diversity), various fisheries agreements, and agreements relating to marine pollution regulate specific activities and provide conservation measures.

    Regional agreements, where they exist, add to the web of regulation and provide increasingly specific rules on the use and conservation of shared regional resources. Some of these, such as the Antarctic Treaty System, are sophisticated agreements that have pioneered new approaches for the implementation of the ecosystem and precautionary approaches. Others are focused on regulating the harvest of a single species, such as bluefin tuna.

    More could be done to improve the implementation of existing instruments. According to a study undertaken by the International Union for the Conservation of Nature, there are significant geographical gaps in the coverage of regional instruments and, when viewed together, the existing agreements do not yet adequately address all uses of ocean space and resources.

    For example, biological prospecting and new and emerging activities such as climate change mitigation techniques do not have detailed international rules and standards, and modern conservation principles such as the ecosystem approach and the precautionary approach are not consistently incorporated. Additionally, it is not possible to apply area-based management tools, such as marine protected areas (MPAs), consistently across all oceans, nor to apply environmental impact assessment (EIA) and strategic environmental assessment (SEA) tools.

    Given these deficiencies, it is not surprising that the world’s oceans as a whole are poorly managed. Overall, only approximately 1.17 percent of the oceans receive some level of protection inside MPAs. However, this figure is deceiving. Areas closer to shore are generally better managed and protected, with 4.32 percent of continental shelves covered by protected areas.

    Given the increasing threats to biodiversity in the oceans and the gaps in the existing legal regimes, marine areas beyond the limits of national jurisdictions present a particularly urgent challenge that can be resolved only collectively by the global community. With access open to everyone, there is generally a drive to maximize individual profit and limited incentive to conserve and sustainably manage resources.

    The case for equity

    The case for the conservation and sustainable use of biodiversity in marine areas beyond national jurisdictions is a compelling one, but it cannot be achieved without concurrently addressing equity between ocean users, including States. Remote and difficult to access, to reach the deep seas requires a very significant input of financial resources and, often, sophisticated technology. Only affluent developed countries are able to mount expeditions with the sophisticated research vessels, instrumentation, submersibles and remotely operated vehicles that are required to explore these areas.

    A survey of patents associated with marine genes shows that they originate from only a handful of countries (the top three being the United States, Germany and Japan) that have access to the required technologies. Because these countries benefit from any resulting financial rewards associated with the patents and products based on deep sea organisms — for uses ranging from pharmaceuticals to enzymes — they are also able to invest more resources into making further discoveries. Thus, both the capacity and income gaps are likely to widen further with time, unless there is a serious investment in capacity building and technology transfer.

    The capacity imbalance and the increasing privatiization of what is seen as a common resource have resulted in many developing countries seeking to address the issue within the UN. In particular, there are two processes mandated by the UN General Assembly to consider issues related to oceans: the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (the Working Group) and the Open-ended Informal Consultative Process on Oceans and the Law of the Sea (the Consultative Process).

    This debate is particularly complicated because UNCLOS was drafted before the exploitation of genetic resources in the deep seabed was foreseen and, thus, it is not clear whether they are subject to the “freedom of the high seas” regime in the same way that resources in the water column (such as fish) are, or whether they are subject to the “common heritage of mankind” regime in the same way that seabed mineral resources are.

    The implication is that, if they are covered by the common heritage of mankind principle, then some form of benefit-sharing should take place between those countries that are collecting and commercializing genetic resources from the deep seabed beyond national jurisdiction and those that do not have the means to do so. Most developing countries, particularly the G-77 and China, support the common heritage principle, while many developed countries argue that the products derived from marine genetic resources, such as pharmaceuticals, already benefit all countries and further regulation is not desirable.

    The debate on this issue remained deadlocked for many years, until the UN Working Group in 2011 recommended that a process be initiated by the General Assembly. The Working Group recommended that the legal framework for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdictions effectively addresses those issues by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under UNCLOS. The process would consider marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including MPAs and EIAs, capacity building and the transfer of marine technology. The UN General Assembly, in draft resolution A/66/L.21, agreed to initiate the process.

    Learning from coastal management

    As efforts to better manage and protect biodiversity and resources in marine areas beyond the limits of national jurisdictions gain international momentum, coastal managers are confronted with the need to work with multiple stakeholders and levels of government, from local to national. They need to take into account the concerns and priorities of sectoral entities ranging from coastal development to fisheries, tourism and shipping, as well as provide for equity and access and benefit-sharing arrangements. Many environmental problems call for the coordinated efforts of neighbouring countries or regions sharing common ecosystems, resources or routes of migratory species, thus requiring processes and institutions for regional collaboration.

    The difference in managing areas beyond and within national jurisdictions is one of ownership, rights and responsibility, in that beyond national jurisdiction no one owns the ocean and its resources, but everyone has a right to utilize them. Thus no one is directly responsible for their conservation in spite of the general obligation to protect and preserve the marine environment.

    Although these fundamental differences of ownership and rights exist, some lessons learned from coastal management could apply for marine areas beyond national jurisdictions. They include the importance of utilizing both the ecosystem approach and precautionary approach in management, as well as the need for management efforts to be built upon genuine stakeholder participation and on the principle of equity in sharing both the costs and benefits of conservation and management.

    Management should be underpinned and supported by the best available science, which in some cases may be local or traditional knowledge, and should encompass monitoring for the purposes of adaptive management. In addition, there exists a large body of experience from many countries and regions of the world about the use of modern conservation tools, such as MPAs, EIAs and SEAs. In some cases, these tools have been applied in deep water systems that resemble those that are found beyond national jurisdictions. This experience provides valuable insight into the management and governance of all of the world’s oceans.

    Rio+20 and the way forward

    While the international process considering how to improve management of marine biodiversity in areas beyond national jurisdictions is still in its infancy, it will be an important topic of debate in the future. While this debate continues, some regions (such as the North-East Atlantic, with six MPAs beyond national jurisdiction) are already making progress through improved implementation of existing instruments, and important efforts towards area-based management are already under way in some regions. There also exist further possibilities for collaboration and cooperation between institutions and international agreements, and for voluntary activities that can be undertaken by countries and regions.

    Although all such efforts are valuable, they are unlikely to be sufficient to reverse biodiversity loss in the oceans as a whole. Nor will they provide for comprehensive and coordinated management of all human activities in the oceans, while also addressing equity concerns, as well as emerging and new uses and activities on the oceans.

    The Rio+20 Conference, to be held in Brazil in June, provides an important and valuable opportunity to consider the future conservation and management of marine areas beyond national jurisdictions. This includes ways and means for improved implementation of existing instruments, but also — following the consensus recommendations adopted by the UN Working Group on marine biodiversity beyond national jurisdiction in June 2011, and draft resolution A/66/L.21 of the UN General Assembly — the possible development of a multilateral agreement under UNCLOS. Any such agreement should address the conservation and sustainable use of marine biodiversity in areas beyond national jurisdictions, including through modern conservation measures (for example, area-based management tools such as MPAs and EIAs), together with marine genetic resources and modalities for benefit sharing.

    It is important that all these issues be considered together, and that they also include capacity building and the transfer of marine technology. Improving the governance of marine areas beyond national jurisdictions will not only provide benefits for biodiversity but also help create more sustainable and equitable economies that can better withstand future environmental change.

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    This article was first published on 14 March 2012 in UNU’s Our World 2.0 web magazine.