Problems of High Seas Governance

David Freestone *
Citation
Draft Contribution for: The World Ocean in Globalisation: Challenges and Responses, edited by Davor Vidas and Peter Johan Schei, Forthcoming Martinus Nijhoff, 2010.
Abstract
The high seas cover more than 50% of the planet’s surface. The last thirty years have seen unparalleled expansion of human activities and impacts on the oceans and on the high seas in particular. At the same time there is evidence of the impacts of the increased intensity of existing human activities; increases in maritime transportation, marine pollution, particularly from land based sources, such as garbage, as well as traditional fishing techniques. These issues, which affect waters both inside and outside national jurisdiction, pose governance issues. This chapter seeks to set out the key risks that high seas areas face, the plethora of bodies with regional and sectoral jurisdiction but also the lacunae – the regulatory and governance gaps that exist.

Current Issues and Challenges

In November 2009 it will be 15 years since the 1982 United Nations Convention on the Law of the Sea came into force. The monumental achievement of this Convention is well known:  its 320 Articles and 9 Annexes took 9 years to conclude, making it the longest negotiation in the history of the UN. Singapore’s Tommy Koh, chairman of the closing session famously called it the new ‘Constitution for the Oceans.’  Yet in 1994, after it had languished for nearly 12 years, it required a further treaty – an Implementation Agreement that modified a number of key provisions relating to seabed mining - in order for it to command enough support from States to bring it into force. The following year another Implementation Agreement was necessary in order to address one of its ‘unfinished agendas’ – the regulation of straddling fish stocks and high migratory fish stocks.  Now, 15 years after the Convention came into force, many – including the states of the European Union - are calling for yet a third implementation agreement to address another ‘unfinished agenda’  and clarify apparent lacunae in the regime for areas beyond national jurisdiction – the high seas.

   	The high seas cover more than 50% of the planet’s surface. The last thirty years have seen unparalleled expansion of human activities and impacts on the oceans and on the high seas in particular. Scientists have discovered valuable new resources in high seas areas:  ocean hydrothermal vents with temperatures of 300-600°C containing gold and other valuable minerals with accompanying hyperthermophile and extremophile life forms – crabs, bivalves, tube worms and shrimp-like creatures as well as microbes - that process hydrogen sulphide instead of oxygen and that function in very deep ecosystems where the ambient water temperature is over 100°C. These are already proving to have important bio-technology and pharmaceutical value. Deep cold water corals – much slower growing than their shallow tropical water counterparts but equally colourful and very diverse - are much more common that initially thought and highly vulnerable to ocean floor fishing equipment. Also, cold seeps and huge frozen methane deposits have been discovered, with potential for exploitation, albeit with risks of major damage to the global atmosphere. 

Sustained demand for fish has accelerated fishing pressures and pushed fishing efforts into more extreme environments, such as the Southern Ocean, as well as into deeper waters. Heavy exploitation of valuable deep sea species such as orange roughy and Patagonian toothfish (often sold as Chilean sea-bass) has meant that some stocks are on the verge of economic extinction before scientists have discovered much about them. Slow-growing orange roughy, for example, are thought to live to over 150 years and not reach sexual maturity until their thirties – spawning infrequently. Bottom trawling for stocks that spawn on seamount ecosystems can eliminate whole year groups as well as destroy the very sea-bed ecosystems that attract them. 

At the same time there is evidence of the impacts of the increased intensity of existing human activities; increases in maritime transportation, marine pollution, particularly from land based sources, such as garbage, as well as traditional fishing techniques. High seas fish stocks are a valuable source of protein for human consumption, but there is evidence of serious depletion in the larger pelagic species, such as tunas and billfishes, resulting in fishing for smaller species, lower down the trophic levels. This raises serious questions about the impact of such fishing on the whole marine ecosystem and its long term sustainability. Economists, as well as biologists, have begun to raise sustainability concerns in the light of the huge amounts of money spent each year to subsidize fisheries.

The international science community has also, albeit somewhat late in the day, become more vocal about the role of the oceans in relation to climate change. While it is well known that the oceans are the most important global sink for CO2, recent research from inter alia the Census of Marine Life suggests that the processes that absorb carbon depend heavily on ocean species – including the tiniest life forms. Before we have even discovered the existence of many of these micro-organisms, human activities – particularly pollution – have reduced their bio-mass by perhaps up to 30% . 

Warming of the oceans and rises in sea level prompted both by the resulting increases in volume and fed by melting glaciers and ice-caps have already attracted public attention. But, in addition the increased atmospheric carbon load – now estimated at about 380 parts per million (ppm) in the atmosphere – is already beginning to affect the ocean acidity levels. Recent research suggests that at 450 ppm corals and shellfish, and perhaps even plankton, may have problems in creating and maintaining their carbonate structures. These issues, which affect waters both inside and outside national jurisdiction, pose governance issues far beyond the remit of the LOSC. The relevant international framework provided by the UN Framework Convention on Climate Change and its science advisory body – the Intergovernmental Panel on Climate Change - have barely started to focus on these issues, even though some entrepreneurs have already seen opportunities for generating lucrative ‘carbon offsets’ by using as yet unproven ocean fertilization techniques in an attempt to generate algal blooms that might fix more carbon in the ocean. 

The Existing Legal and Institutional Regime

Under the LOSC, coastal states have jurisdiction over living and non-living resources out to 200 nautical miles from their coastal baselines in their Exclusive Economic Zones (EEZs) and over continental shelf resources out to the legal limit of their continental shelf. Beyond that point, the LOSC envisages the International Seabed Authority having jurisdiction, but only over the non-living resources of the seabed, what it terms ‘solid, liquid or gaseous mineral resources.’ Hence, there is a lacuna in the Convention regime relating to management and conservation of deep-sea or seabed living resources and for exploration and exploitation activities unrelated to seabed mining. 
 
A number of sectoral activities in the high seas are governed by existing treaty regimes – such as the 1972 London Convention and its 1996 Protocol on ocean dumping, by the International Maritime Organization and associated treaties on shipping safety, security and pollution, and by a network – albeit by no means a comprehensive network - of species and regional fisheries treaties and arrangements as well as by some of the regional seas conventions. Scholars have worked systematically through the various regional and sectoral regimes to highlight further ‘regulatory and governance’ gaps.

Fisheries Commissions

There are ten  regional fisheries management organizations (RFMOs) five primarily responsible for the conservation and management of high seas straddling stocks and five regional organizations responsible for tuna species. These organizations do not however provide comprehensive coverage of all exploitable high seas fish stocks, exposing those stocks not so regulated to an even greater risk of what the international community now calls IUU fishing activities (i.e. Illegal Unreported and Unregulated Fishing). For example, negotiations for an important South Pacific Ocean Regional Fisheries Management Organisation have been ongoing for some time, leaving fishing in this huge area unregulated, as have those for a North-west Pacific Ocean Agreement. An agreement on deep sea fisheries in the Southern Indian Ocean has been negotiated, but not yet ratified by a sufficient number of states for it to come into effect. It seems that there are as yet no plans for a South Atlantic Commission covering those areas not within the remit of CCAMLR, nor likely to be any in the near future unless the political disputes between the UK and Argentina regarding the status of the Falklands/Malvinas are resolved.  

The most recently established of these RFMOs – notably the Commissions set up by the 2000 Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC)  and the 2001 South-East Atlantic Fisheries Organization (SEAFO)  were concluded after the 1992 UN Conference on Environment and Development and the finalisation of the 1995 UN Fish Stocks Agreement. As fisheries management bodies they are expressly mandated by the LOSC itself to incorporate environmental concerns into their marine conservation and management regimes, but in addition they are bound to address the new ecosystem maintenance and conservation of biological diversity concerns introduced by the 1992 UNCED, notably through the 1995 UN Fish Stocks Agreement and the large number of non-binding instruments which have followed it. In a ground breaking decision, the Parties to NEAFC have incorporated these concerns retrospectively. At the 24th meeting of the NEAFC parties in 2005 they approved a Declaration on the Interpretation and Implementation of the Convention on the Future Multilateral Cooperation in North-East Atlantic Fisheries agreeing to incorporate the post UNCED global agreements and instruments into their own regime.  

Many of the tuna RFMOs are still operating under the old rules and attempts to update their charters are not progressing rapidly, although such changes may result from the series of performance reviews undertaken by the majority of these bodies and the consultation process that they have commenced between themselves - called the ‘Kobe Process’ after the first meeting in Japan in 2007. 

Regional Seas Conventions

More than 140 countries participate in thirteen Regional Seas programmes established under the auspices of UNEP regional seas programme covering Black Sea, Wider Caribbean, East Asian Seas, Eastern Africa, South Asian Seas, ROPME Sea Area, Mediterranean, North-East Pacific, North-West Pacific, Red Sea and Gulf of Aden, South-East Pacific, Pacific, and Western Africa. Six of these programmes, are directly administered by UNEP. All of the Regional Seas programs have developed an Action Plan but most also have developed specific legal frameworks with Conventions and Protocols. No conventions have yet been developed for East Asian Seas, South Asian Seas, North West Pacific, North-East Pacific, or for the Arctic. In addition there are a number of ‘partner programmes’ of regional seas treaties which are not under the UNEP umbrella. These regional treaty regimes include those for the Antarctic, the Baltic, the Caspian,  and the North-East Atlantic. It is also important to note that these conventions are primarily groupings of coastal states and their jurisdiction is generally restricted to their coastal zones. The exceptions are the following: The OSPAR Convention which has high seas areas within its remit. The Mediterranean – where coastal states have for a number of reasons not claimed EEZs. The South Pacific which includes within its mandate the ‘donut’ holes between its members EEZs, and, of course, the Antarctic Treaty System consisting of both the Antarctic Treaty and its Protocol on Environmental Protection as well as the Convention for the Conservation of Antarctic Living Marine Resources (CCAMLR). CCAMLR  which is a genuinely ecosystem based regime that regulates the Antarctic marine living resources of the area south of 60° South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem.  

Current Reform Initiatives

UN General Assembly

International concern has been growing at the lack of an adequate comprehensive framework for high seas governance. As we have seen, neither the regional seas organizations nor the regional fisheries management organizations cover all ocean regions or activities, or even all fisheries activities. Recent activities such as bio-prospecting that may affect the seabed and its resources remain unregulated and emerging activities such as ocean fertilization and other carbon sequestration schemes are only slowly finding a home in the international regulatory regime for ocean dumping. 

While the international community is beginning to respond, progress has been slow. Of course, overfishing is not the only threat to marine biodiversity, but overfishing of high seas fish stocks, particularly from IUU fishing activities, has been the subject of a number of ongoing international activities. The unregulated exploitation of deep-sea fish stocks such as orange roughy and toothfish, including by bottom trawling over unique seamount ecosystems, has prompted wide concern. In 2004, UN General Assembly (UNGA) Resolution 59/25 of 17 November 2004 called on States acting individually or through RFMOs to take action urgently, and consider on a case by case basis and on a scientific basis, including the application of the precautionary approach, the interim prohibition of destructive fishing practices, including bottom trawling that has adverse impacts on vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold water corals located beyond national jurisdiction, until such time as appropriate conservation and management measures have been adopted in accordance with international law.  

In 2006, the UNGA went further, and in paragraph 80 UNGA Resolution 61/105 called upon states: to take action immediately, individually and through regional fisheries management organizations and arrangements, and consistent with  the precautionary approach and ecosystem approaches, to sustainably manage fish stocks and protect vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold water corals, from destructive fishing practices,  recognizing the immense importance and value of deep sea ecosystems and the biodiversity they contain. Later paragraphs in the resolution described the expected action and set deadlines of December 31, 2007 for areas where there were no RFMOs, and December 31,2008 for areas with RFMOs. 

In summary, paragraphs 80-91 of UNGA res 61/105 called for States and RFMOs to assess the impacts of individual bottom fisheries activities in order to determine if such fishing activities would cause significant adverse impacts on vulnerable marine ecosystems, and to either manage the fishery to prevent such impacts or not authorize the fishing to proceed. The UN Secretary General’s report on progress with respect to implementation of UNGA res. 61/105 paragraphs 80-90 will be released in mid-August, for review by the UNGA in September-November to determine whether and what additional measures may be necessary. 

The UNGA also requested the FAO to develop guidelines for managing deep sea fisheries on the high seas and the protection of vulnerable marine ecosystems. Pursuant to this mandate, in March 2007, the FAO Committee on Fisheries (COFI) requested the development of International Guidelines for the Management of Deep-Sea Fisheries in the High Seas to assist States and regional fisheries management organizations and arrangements in sustainably managing deep-sea fisheries. These guidelines were adopted in August 2008..

To address the full realm of issues relating to biodiversity in areas beyond national jurisdiction, in 2004 on the recommendation of the UN Informal Consultative Process on the Oceans and the Law of the Sea (UNICPOLOS) the UN General Assembly agreed to establish an 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. This Working Group held its first meeting in 2006, a second ran from 28 April - 2 May 2008 and a third meeting is scheduled for January 2010.  A number of important proposals have been discussed at these meetings including, as mentioned above, a European Union proposal for a new Implementing Agreement to develop a more specific framework to address, inter alia, conservation and sustainable use of marine biodiversity beyond national jurisdiction.  It is envisaged that such an implementing agreement or agreements could supplement the 1995 UN Fish Stocks Agreement (UNFSA) the implementing agreement which elaborated and modernized the 1982 Convention with respect to highly migratory and straddling fish stocks. 
Other states have expressed the view that improved implementation should be the first priority, but have not provided their views on what might be done to enhance implementation with respect to biodiversity conservation in general. Discussions on high seas fisheries have proceeded largely in parallel. 

In the context of the UNGA discussions, a number of expert working groups have also suggested that it would assist in the clarification of the debates over the emerging high seas governance regime, to set out more clearly and explicitly the basic principles that the international community has already established and agreed to, in existing legal and policy instruments, in relation to the use and exploitation of the high seas. These principles could at some point be more formally enumerated – whether as a free standing declaration (perhaps by the UNGA) or as a part of a new international agreement or arrangement including an implementing agreement. The issue of these applicable modern principles was discussed and elaborated upon at an International Union for Conservation of Nature (IUCN) workshop in October 2007 and further explored by a number of other international expert groups. In September 2008, the IUCN Global Marine Programme decided to help clarify these existing principles and issued a document: ‘10 Principles of High Seas Governance’ to assist with this process. The final section of this paper returns to this issue,   briefly sets these out and explains their legal basis.  

IUU Fishing Initiatives

In addition to progress on deep sea bottom fisheries on the high seas, recently steps have been taken to address the pernicious problem of IUU fishing through more thorough investigation of flag state and RFMO performance at both the global and regional levels. The UN Convention on the Law of the Sea recognizes that all States have the right for their nationals to engage in fishing on the high seas. However, it specifically subjects that right to three factors: (a) existing treaty obligations; (b) the rights and duties, as well as interests, of coastal States;  and (c) the other provisions of the Convention – including the duty to take necessary measures for the conservation of the living resources of the high seas and to co-operate in the conservation and management of high seas living resources (i.e. through RFMOs). Moreover the specific provisions relating to cooperative action are largely hortatory – imposing an obligation simply to negotiate in good faith.  The ‘unfinished agenda’ of these provisions was highlighted by Agenda 21 of the 1992 UN Conference on Environment and Development and as a result supplemented by the 1993 FAO Compliance Agreement and, after a number of negotiating sessions, by the 1995 UNFSA that introduced a large number of modern fisheries management provisions into the international regime for straddling fish stocks and highly migratory fish stocks. The UN Fish Stocks Agreement commits its parties to the sustainable use of such stocks; it endorses an ecosystem approach and a precautionary approach to the conservation of these stocks.  These, and other provisions of the UNFSA, are reflected in the Code of Conduct for Responsible Fisheries concluded by FAO in 1995 immediately after the finalisation of the UNFSA text.

Appreciating that overfishing and destructive fishing practices have been identified as the main causes of loss of ocean biodiversity,   FAO has sought to address a number of other important threats to sustainable fisheries by a series of non-binding instruments called International Plans of Action (IPOAs). Three IPOAs were adopted in 1999: the IPOA for Reducing Incidental Catch of Seabirds in Longline Fisheries; the IPOA for the Conservation and Management of Sharks; and the IPOA for the Management of Fishing Capacity. In June 2001 the FAO Council endorsed the IPOA to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU). It contains an extensive ‘toolkit’ of actions that States can take against such vessels. The 2001 Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem included a commitment to work to include ecosystem considerations in fisheries management activities. However, little progress appears to have been made with respect to guidelines for MPAs for fisheries management purposes that the UNGA requested the FAO to develop in 2006 also as part of UNGA resolution 61/105. 

In the fight against IUU fishing a number of further initiatives have been advanced in order to tighten the regimes of existing RFMO and to provide even more tools to states willing to enforce international conservation and management measures.  Each of the RFMOs mentioned above has its own treaty-based constitution, and particularly for those established prior to 1995, ecosystem and biological diversity conservation concerns are not included within their mandate. Although many have overlapping parties, there has until recently been  very little formal co-ordination of their conservation and management activities.  and indeed their ability to take effective management and conservation decisions is hampered by their own decision making processes which have extensive ‘opt-out’ procedures and are not necessarily obliged to reflect the best available scientific advice. This is not to mention the willingness of member states to police rigorously the activities of their own vessels and the activities of non-parties.  

Ministerially-led Task Force on IUU Fishing on the High Sea

In 2006 at the initiative of a number of key governments and NGOs, a Ministerially-led Task Force on IUU Fishing on the High Seas developed an action plan designed to combat illegal, unregulated and unreported fishing on the high seas. The Task Force identified nine practical initiatives necessary to expose IUU fishing activities, deter them and improve enforcement against those responsible. The report recommended the following actions: 

First, that new resources be committed to the existing voluntary International Monitoring, Control and Surveillance (MCS) Network to enable it to become an international network with dedicated resources, analytical capacity and the ability to provide training and support to developing countries.  Second, the development of a global information system on high seas fishing vessels. Third, encouragement to countries to become parties to relevant instruments and to collaborate in an international effort to foster better implementation of them. In particular, recognition of the need for Regional Fisheries Management Organisations (RFMOs) to perform better both individually and collectively, as well as the need for increased cooperation between them on issues of common concern.  It recognised that ‘RFMOs play a crucial role in effecting governance of high seas fishing in a world where fisheries are rapidly -and often uncontrollably- expanding into these regions.’  It recommended guidance for RFMOs to be reflective of best practices in the implementation of international fishery instruments, with a view to encouraging self-evaluation by RFMOs and to aid internal discussions of reform by RFMOs in the near term. The objective is to encourage change from within. To this end it proposed to commission an independent high-level panel to develop a model RFMO based on a more comprehensive assessment of best practices worldwide. It recognised the need for greater coordination, cooperation and information sharing and it noted that key gaps remain in high seas governance in several regions and need to be closed. Task Force members recognised that responsible flag state and port state behaviour is central to strong deterrence of IUU fishing. 

Fifth, assistance in tackling the problem of flag states that fail to live up to their international obligations; the Task Force proposed a preliminary set of guidelines on flag state performance. Sixth, the development of a range of measures aimed at improving port state controls over IUU. These include promoting the broad application of regional port state controls, reviewing domestic port state measures and suggestions for strengthening domestic legislation controlling the import of IUU product. Targets might include, for example, enterprises attempting to import IUU fish, or those that can be shown to be blatantly jeopardising the resource management measures adopted by a third state or RFMO. Recommendations Seven and Eight address how to secure good information on IUU activity, and how to address the specific needs of developing countries in overcoming IUU fishing. Because IUU is a covert activity, much information on it is, of necessity, anecdotal. There is a need for mechanisms to fill critical gaps in scientific knowledge and assessment, and to monitor IUU activity and inform remedial policy. The Task Force therefore suggested some approaches for improving methods of assessing and monitoring IUU fishing activity and by catch, and incorporating these into stock assessments and proposed the initiation of a process to evaluate and then support vulnerable developing countries to adopt relevant Task Force measures. Finally, it proposed a keener focus on the role of remote vessel monitoring systems in tackling IUU fishing including the development of internationally accepted codes of practice for its correct application, with particular concern for security, reliability and data sharing.  

Review of Effectiveness of RFMOs

As we have seen, much of the international concern that prompted the setting up of the Task Force has focused on the performance of RFMOs. In 2005 at COFI the importance of establishing principles to review the obligations and principles set forth in relevant international instruments and the performance of RFMOs in meeting their objectives was discussed. Following that, at the UNFSA Review Conference in  May 2006,  a number of key priorities were flagged, including improving the functioning of regional organizations and aligning their conventions and adopted measures with the UNFSA standards;  modernizing  RFMOs, in particular updating their constitutive instruments to highlight the importance of implementing precautionary and ecosystem-based approaches to fisheries management, as well as strengthening monitoring, control and surveillance regimes and performance review. The Review Conference also proposed the development of standards and best practice guidelines for RFMOs.
NEAFC led the way on this, and in November 2005 decided to undertake such a review. In March 2006 it became the first RFMO to undertake such a review and its review process has been held up as a model for others. The NEAFC Secretariat reported on this review to the 27th COFI meeting in 2007 and RFMOs were discussed there under a stand-alone agenda item for the first time ever. Concern was expressed at COFI on issues such as overcapacity, improvement of fleet statistics and the issues of countries that undermine the effectiveness of RFMOs and vessels fishing under what it termed “flags of non-compliance.” One of the COFI agenda items was "Strengthening Regional Fishery Management Organizations (RFMOs) and their performances". This called for all RFMOs to undertake performance reviews. 
 A number of actions have been taken to implement these proposals. The Royal Institute for International Affairs - Chatham House – has sponsored the development of best practices for RFMOs. In January 2007, the members (and cooperating non members) of the five tuna RFMOs met in Kobe Japan, recognizing the critical need to arrest further stock decline in the case of depleted stocks, maintain and rebuild tuna stocks to sustainable levels and deal effectively with overfishing, overcapacity and IUU fishing activities, jointly commit to take urgent actions to cooperate through tuna RFMOs in accordance with their obligations under international law. The meeting also agreed on the standard criteria that should be used for the future RFMO reviews. In what has now become known as the ‘Kobe Process’, they met again in June 2009.  

 Port State Measures

The Law of the Sea Convention and other instruments – such as the 1972 London Convention and its 1996 Protocol - envisage the use of measures by port states for the control of marine pollution. In relation to fisheries, Article 23 of the 1995 UNFSA specifically recognises that port states have the right, and indeed the duty, to ‘take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation measures.’

Because of the growth of IUU fishing, and growing frustration at the inability or the unwillingness of flag states to exercise effective control over vessels flying their flags, there has been growing acceptance that port states have an important role to play in combating what FAO terms ‘non-sustainable fisheries practices.’ Part of such an effort would be the systematization of port state measures through the development of an international legal instrument.   

Such measures had been part of the ‘tool kit’ agreed by FAO members in the context of the 2001 IPOA-IUU  and in 2005 FAO had established a Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (Model Scheme).  In 2006, the UN Fish Stocks Review Conference called on states to ‘co-operate to adopt Port State measures particularly those in the FAO Model Scheme’ and also to initiate ‘as as soon as possible, a process within FAO to develop, as appropriate, a legally binding instrument on minimum standards for port State measures, building on the FAO Model Scheme and the IPOA-IUU.’ In the same year the UNGA Resolution on Sustainable Fisheries (61/105) also encouraged states ‘to initiate, as soon as possible, a process within FAO to develop, as appropriate, a legally binding instrument on minimum standards for port State measures, building on the FAO Model Scheme.’

In March 2007 COFI authorised work on such an international legal instrument and the text of a draft was developed at an ‘Expert Consultation’ held in Washington D.C. in September, 2007; this was the basis for the work of the Technical Consolation held in June 2008 in Rome. Progress on the finalisation of the text of this agreement has been very slow, and a further round of negotiations, a second ‘Technical Consultation’, is scheduled for 24-28 August 2009. 

FAO Global Record

The issue of an international register or record of fishing vessels, had been raised during the negotiation of the 1993 Compliance Agreement – which requires national government to keep such record and to make such record available to FAO. IMO has a ‘number scheme’ to identify merchant vessels and a similar system was thought useful for fishing vessels. However it took more than a decade for the issue to find its way to COFI. At its 27th Meeting in March 2007 COFI considered a report on a previous proposal for the ‘Development of a Comprehensive Record of Fishing Vessels, Refrigerated Transport Vessels, Supply Vessels and Beneficial Ownership.’  COFI agreed to the holding of an ‘Expert Consultation’ which was held in Rome 25-28 February 2008, to determine the feasibility of such a proposal.  

The proposal, which has moved away from an IMO model, is still under active consideration, but as Dr Gail Lugten reports of the 2008 Meeting: ‘The consultation considered it appropriate for the Global Record (GR) to adopt a phased-in approach, commencing with larger vessels and progressively recording smaller vessels.  Each vessel should have a unique vessel identifier that would not change even if the vessel changed flag, owner or name. This could be accomplished through a numbering system which combined the current LRF system for vessels over 100 GT, and a numbering system issued by FAO for vessels less than 100 GT. Close cooperation between FAO, LRF and the International Maritime Organization was encouraged to pursue further operational details on the unique vessel identifier.’ 

Flag State Performance

As we have seen, the 2006 Ministerially led Task Force had proposed the development of a set of guidelines on flag state performance to help to tackle the problem of flag states that fail to live up to their international obligations; indeed it proposed a preliminary list.  The following year FAO COFI requested FOA to convene an Expert Consultation to develop criteria for assessing the performance of flag states and to identify actions that could be taken against vessels flying the flag of states not meeting those criteria. This call was echoed by the UNGA in 2007, and again in 2008, after the UN Secretary General’s report on Oceans and the Law of the Sea noted the ‘prevailing view’ that ‘fishing vessels on the high seas which are not effectively controlled by their flag states are liable to sanctions by other states should they happen to contravene international conservation and management measures.’

Despite the importance and urgency attached to this issue by the UNGA, progress has been slow. In March 2008 the Canadian Government and FAO convened an Expert Workshop on Flag State Responsibilities in Vancouver.  An FAO Expert Consultation was then held in Rome in June 2009 and a Technical Consultation (to which all FAO members are invited) is planned for 2010. 

Convention on Biological Diversity

As indicated, the LOSC high seas framework was transformed by the new ecosystem maintenance and conservation of biological diversity concerns introduced by the 1992 UNCED, but these have focused primarily on high seas fisheries notably through the 1995 UN Fish Stocks Agreement and the large number of non-binding instruments that have followed it. The Convention on Biological Diversity itself contains little on marine biodiversity conservation,  but acting under the mandate of the Jakarta Mandate on the Conservation and Sustainable Use of Marine and Coastal Biological Diversity, the parties have implemented a number of important initiatives designed to set systems in place to protect marine biodiversity in areas within national jurisdiction and scientific information and advice regarding marine biodiversity beyond areas of national jurisdiction.. At its most recent COP9 in Bonn it called for the compilation and synthesis of available scientific information on potential impacts of direct human-induced ocean fertilization on marine biodiversity as well as available scientific information on ocean acidification and its impacts on marine biodiversity and habitats, which is identified as a potentially serious threat to cold-water corals and other marine biodiversity.  It also agreed to convene an expert workshop to discuss scientific and technical aspects relevant to environmental impact assessment in areas beyond national jurisdiction. 

Most importantly perhaps, by Decision IX/20, it adopted the scientific criteria (in Annex I) for identifying ecologically or biologically significant marine areas in need of protection, and the scientific guidance, (in Annex II), for designing representative networks of marine protected areas, and requested the Executive Secretary to transmit the information contained in annex I and II to the relevant General Assembly processes. It then urged  its parties, and invited other governments and relevant organizations, to ‘apply, as appropriate, the scientific criteria in annex I, the scientific guidance in annex II, and initial steps in annex III, to identify ecologically or biologically significant and/or vulnerable marine areas in need of protection, with a view to assist the relevant processes within the General Assembly and implement conservation and management measures, including the establishment of representative networks of marine protected areas in accordance with international law, including the United Nations Convention on the Law of the Sea, and recognizing that these criteria may require adaptation by Parties if they choose to apply them within their national jurisdiction noting that they will do so with regard to national policies and criteria.’

To help Parties in their efforts to apply the CBD criteria and guidance, the Secretariat of the CBD was requested by the CBD COP9 to convene an expert workshop on scientific and technical guidance on the use of biogeographic classification systems and identification of marine areas beyond national jurisdiction in need of protection. The expert workshop will take place  29 September to2 October 2009 in Ottawa, Canada.

The CBD expert workshop will review and synthesize progress on the identification of areas beyond national jurisdiction which meet the scientific criteria and assess experience with the use of biogeographic classification systems in marine conservation and management. This background will enable the workshop to provide scientific and technical guidance on the identification of areas beyond national jurisdiction that meet the CBD scientific criteria as well as guidance on the use and further development of biogeographic classification systems  to inform international cooperation and action.  Progress in this regard is to feed into discussions within the relevant United Nations processes as well as into CBD COP10 in Nagoya, in October 2010. 

Serious questions remain to be addressed about how to stimulate international and regional cooperation to protect areas identified by the international community as meeting the CBD scientific criteria for areas in need of protection located beyond national jurisdiction. As noted above, some of the RFMOs still operate under agreements that do not reflect ecosystem-based or precautionary approaches to management of fisheries resources, not to mention the protection of ecosystems and marine  biodiversity that under the UNFSA States Parties are required to protect. Also, many oceanic regions beyond national jurisdiction do not have organizations to assist in integrated and cooperative regional management.  Thus more may be required in terms of improving the performance of RFMOs and other sectoral organizations with respect to biodiversity conservation, and default mechanisms may be needed for regional and/or global cooperation where no regional organization or action plan exists.  It is submitted that a first step would be to ensure that all organizations are committed to implementing modern principles of high seas governance and management, as detailed below. 

Modern Principles of High Seas Governance

As discussed above, in the context of the UNGA discussions, it was also suggested that it would assist in the clarification of the debates over the emerging high seas governance regime, to set out more clearly and explicitly the basic principles that the international community has already established and agreed to, in existing legal and policy instruments, in relation to the use and exploitation of the high seas. These principles could at some point be more formally enumerated – whether as a free standing declaration (perhaps by the UNGA) or as a part of another international agreement or arrangement including an implementing agreement. The following section briefly sets these out. All these principles have been generally accepted by the international community in a range of global and regional instruments, as well as in the decisions of many international courts and tribunals. They are already widely applied on land and to various marine sectoral activities; but not yet uniformly applied to the high seas. Some represent established international law; others agreed international minimum standards. All however require much more rigorous implementation as the first steps in the development of a robust and appropriate system of international governance for the high seas. 

Principle 1: Conditional Freedom of the Seas

 Article 87 of the 1982 LOSC explicitly recognizes six ‘freedoms’ of the high seas.  However these are not absolute rights but are subject to a number of limitations and corresponding duties upon which their legal exercise is pre-conditioned. For example, under Article 116 LOSC all states have the right for their nationals to engage in fishing on the high seas, subject to three conditions:“(a) their treaty obligations; (b) the rights and duties, …[and] interests of coastal states ...; (c) the provisions of this section.”  So this is not an absolute right. It is subject to all the treaty obligations that the flag state may have contracted by its membership of global and regional treaty regimes including regional and species fisheries conservation and management treaties. It is also subject to the whole slew of rights and duties that it may owe to, or be due as, a coastal state (b) and finally the provisions of Articles 116-120 (i.e. section 2 of Part VII of the Convention). These duties, briefly summarized, include obligations to take measures for their own nationals for the conservation of the living resources of the high seas; to co-operate with other states in conservation and management of those resources and to base those measures on the best scientific evidence available, environmental and economic factors and ‘generally recommended international minimum standards’. So, it important to remember that the freedoms of fishing and of other high seas uses are conditional freedoms. 

Principle 2: Protection and Preservation of the Marine Environment

The 1982 Convention introduced, in Article 192, a major new principle – an unprecedented, unqualified and robust obligation on all states to “protect and preserve the marine environment.” It also contains more specific obligations to protect and preserve rare or fragile species and ecosystems in all parts of the marine environment, as well as the habitat of depleted, threatened or endangered species and other forms of marine life. Article 192 however is a general obligation that extends further than simply the avoidance of deliberate and/or obvious damage, so as to include active measures to maintain or improve the present condition of the marine environment, as well as to co-operate to this end. So, the general obligations of Article 192 et al. reflect both the responsibility to conserve marine ecosystems as well as to prevent marine pollution. 

Principle 3: International Cooperation

In 1970 the UN General Assembly declared that: “All states have the duty to cooperate with one another … in the various spheres of international relations, in order to maintain international peace and security and to promote international economic stability and progress …”  Various international instruments governing environment and natural resource conservation also include an obligation to co-operate. For example, in relation to the high seas, Article 117 provides that “All states have the duty to take or co-operate with other states in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.”  

Principle 4:  Science-Based Approach to Management

The 1982 Convention mandates a science-based approach to management. Article 119 requires states to base their fisheries conservation and management measures on “the best scientific evidence available” as well as environmental and economic factors and “generally recommended international minimum standards.” These same obligations are reflected in the 1995 UNFSA which requires that, when adopting measures to ensure the long term sustainability of straddling and highly migratory fish stocks, coastal states and states fishing on the high seas shall “ensure that such measures are based on the best scientific evidence available and designed to maintain or restore stocks at levels capable of maximum sustainable yield.”  

Principle 5:  The Precautionary Approach  

In November 1990, the UN Secretary General expressly recognized the “considerable significance” of the precautionary principle for future approaches to marine environmental protection and resource conservation. Since then it has featured in virtually all international environmental treaties and policy declarations, most notably those relating to the marine environment and resources.   Agenda 21 mandates “new approaches to marine and coastal area management … that are integrated in content and precautionary and anticipatory in ambit.” Principle 15 of the UNCED Rio Declaration provides that: "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious of irreversible damage lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." 

Principle 6: The Ecosystem Approach

The first legal instrument in modern times to espouse explicitly an ecosystem approach is the 1980 Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR). As Kiss and Shelton point out “it considers the interrelationship between all species and their particular physical environment” and its coverage is “uniquely based on a biological boundary,” namely waters south of the Atlantic convergence. The ecosystem approach to natural resource management begins to be reflected in legal and policy instruments after the adoption by the UN General Assembly of the World Charter for Nature in 1982.  This called on states to protect representative ecosystems but also mandated that ecosystems and species exploited by mankind should be managed so as not to endanger co-existing ecosystems and species.  By 1992 it is possible to see this approach reflected in both Agenda 21 and the Convention on Biological Diversity. From a marine perspective it is most obviously incorporated in the UNFSA, which together with the precautionary approach (above) also requires that its parties assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks. Once such assessment has taken place, member states shall “adopt, where necessary, conservation and management measures for species belonging to the same ecosystem or associated with or dependent upon  the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened.”   A number of regional and species fisheries agreements now reflect this approach.

At the 2001 Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem, organized by FAO and the Government of Iceland, states recognized in the final Declaration that sustainable fisheries management incorporating ecosystem considerations entails taking into account the impacts of fisheries on the marine ecosystem and the impacts of the marine ecosystem on fisheries. They also recognised the clear need to introduce immediately effective management plans with incentives that encourage responsible fisheries and sustainable use of marine ecosystems, including mechanisms for reducing excessive fishing efforts to sustainable levels and declared that the prevention of adverse effects of non-fisheries activities on the marine ecosystems and fisheries requires action by relevant authorities and other stakeholders.

Principle 7: Sustainable and Equitable Use

Many international legal instruments now recognize the new paradigm of “sustainable use” or “sustainable development.”  Sustainable development, as defined by the Brundtland Commission is "development that meets the needs of the present without compromising the ability of future generations to meet their own needs."  It thus reinforces the equitable notion of fairness or equity in relation to the needs of present and future generations as balanced by environmental limits and goals.    A commitment to sustainable use can now be found in a wide range of international instruments, including those relating to ocean use such as the 1995 UN Fish Stocks Agreement, the 1995 FAO Code of Conduct for Responsible Fisheries and 2001 Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem.

Principle 8: Public Availability of Information

Principle 10 of the Rio Declaration recognizes that “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level … States shall facilitate and encourage public awareness and participation by making information widely available.” These hortatory provisions have been given important legal substance by the 1998 ECE Aarhus Convention on Access to Information, Public Participation in Decision Making in Environmental Matters. While the Aarhus Convention is a regional agreement concluded under the auspices of the UN Economic Commission for Europe (ECE), it is highly unusual in that it is open for accession by any other UN Member state, even if not an ECE member, with approval of the  Meeting of the Parties.  In May 2005, at their second meeting in Almaty, Kazakhstan, the parties to the Aarhus Convention adopted a decision (II/4) expressly “Promoting the Application of the Principles of the Aarhus Convention in International Forums”  Decision II/4 elaborates guidelines (the Almaty Guidelines) that declare that access to information and public participation in environmental matters are “fundamental elements of good governance at all levels and essential for sustainability.”  Aarhus parties are mandated, inter alia, to “encourage international forums to develop and make available to the public a clear and transparent set of policies and procedures on access to environmental information.”  The tenets of this principle lead directly to the following one.

Principle 9: Transparent and Open Decision Making Processes

Transparency and openness in the conduct of the work of international and intergovernmental processes is now becoming the norm.  Treaty based organizations such as the International Maritime Organization (IMO) and the meetings of the Conference of the Parties to multilateral conventions such as the Convention on Biological Diversity, while acknowledging that states are the primary players, do accord access to other non-state parties. Background papers and secretariat papers are commonly distributed to state and non-state participants. Despite the fact that the biological resources of the high seas could be regarded as a common resource, this is not the case, or has not in the past been the case, for high seas fisheries management bodies.  It is the UNFSA Article 12 which for the first time introduces an obligation on its state parties to provide for “transparency in the decision –making process and other activities or subregional and regional fisheries management organizations and arrangements.”  Article 12(2), which has already been adopted by some fisheries bodies and may be regarded as minimum international practice, specifically provides that:
“Representatives from other international organizations and representatives from non-governmental organizations concerned with straddling fish stocks and highly migratory fish stocks shall be afforded the opportunity to take part in meetings of subregional and regional fisheries management organizations and arrangements as observers or otherwise, as appropriate, in accordance with the procedures of the organization or arrangement concerned. Such procedures shall not be unduly restrictive in this respect. Such intergovernmental organizations and non-governmental organizations shall have timely access to the records of such organizations and arrangements, subject to the procedural rules on access to them.”

Principle 10: Responsibility of States as Stewards of the Global Marine Environment

Principle 21 of the 1972 Stockholm Declaration provides that “States, have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.”  A simpler statement of a principle, derived directly from these words and applicable to the high seas and which would be widely regarded as a principle of customary international law, would read as follows:  “States … have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment … of areas beyond the limits of national jurisdiction.”  
This concept of responsibility reflects a proactive obligation that would support a number of proposals that have been put forward for a form of stewardship role in protecting the resources of areas beyond national jurisdiction. It was that same concept of responsibility that the drafters seem to be trying to capture in the 1995 FAO Code of Conduct for Responsible Fisheries. That, and similar provisions of the UNFSA and the 1993 FAO Compliance Agreement, require flag states to supervise properly the activities of their fishing vessels when on the high seas. And yet the continued major threats of IUU fishing demonstrate that flag states are simply not exercising this sort of control. Responsibility in this sense involves an obligation on states not merely to regulate vessels flying their flag operating on the high seas – and many states seem unable to manage that - but also their nationals, captains, crews, owners and investors – all those in the value chain of activities that do, or might, cause harm to the environment in areas beyond national jurisdiction.  As we have seen above, the FAO has already begun to develop principles for audits of Flag State Perfomance. 

Conclusions

The governance of areas beyond national jurisdiction is probably the most pressing marine issue facing the world community. It is paradoxical that on the one hand science is helping us to appreciate more fully the rich biodiversity of marine areas beyond national zones and the important role this plays in the global system, including helping to regulate its climate, while on the other hand, these high seas areas face increasing adverse impacts – both from the intensification of existing human activities and from major new risks. Illegal, unregulated and unreported (IUU) fishing for deep ocean species, uncontrolled bottom trawling over seamounts, exploration of hydrothermal vents as well as proposals for geo-engineering activities such as iron fertilization, are just some of the activities which reveal the lack of an holistic system of governance for these areas, based on established and agreed basic principles. 

This chapter has sought to set out the key risks that high seas areas face, the plethora of bodies with regional and sectoral jurisdiction but also the lacunae – the regulatory and governance gaps that exist. The attention of the international community has been focussed on this issue for some time. The UN General Assembly has mandated a number of important actions and the meetings of the ponderously named ‘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’ have helped to widen understandings of the issues and to focus informed opinion on the major issues facing the high seas. Unfortunately the lively debates on improved governance have been overshadowed by controversy over the future regime for exploitation of marine genetic resources beyond national jurisdiction.  A number of important initiatives are in train but progress has been very slow. The case for a new instrument, perhaps based on agreed principles, to pull together all the various themes and sectoral responsibilities discussed above and to provide some overarching system of governance of the high seas is becoming very difficult to resist.