On the difficulty of governing the sea
Lack of common purposeThe sea and its ecosystem services are a common resource. Unlike privately owned properties on land, for example, they do not belong to individuals but are available to the whole community. Many of the resources in the sea are finite, fish stocks being one example. If individual nations or companies help themselves to the sea’s resources as they see fit, sooner or later these resources will be exhausted. Today many fish populations are already classified as overfished due to excessive catches over the years. Economists use the term “commons” to talk about publicly available resources (like the fish in the sea) which are freely usable but limited in supply. Originally the concept referred to land areas such as fields or pastures used collectively by the citizens of a community. The problem with the use of commons has always been that those interested in using this kind of resource find themselves competing with each other. If one company or country makes use of a common resource, less of it is available for the other stakeholders. From a purely economic viewpoint, it is worthwhile for a company or country to exploit these resources to the fullest possible extent in order to secure the maximum possible share and generate profits accordingly. In past decades this approach has led to ever more serious harm to the marine environment. Unrestrained fishery is one of the uses of the commons that will tend to cause such harm. Likewise, the discharge of pollutants from industry or from municipalities into the sea is an-other example of a use of marine commons that is ulti-mately selfish. Individual companies, municipalities or countries save themselves large expenditures for the disposal of pollutants by making use of coastal waters as a free drainage tank for effluents. For the protection of commons to make sense, on the other hand, many users or states need to cooperate. An example that clearly underscores this dilemma is fishing on the high seas, in international waters. Here the prevailing principle is that of freedom of the sea, according to which all nations can fish at will. It would be futile if one country alone refrained from fishing in order to protect overfished populations while other countries continued to fish excessively. It follows that comprehensive protection of the sea will only be possible in future if allnations will pull together with a common purpose.Further information on this topic is available here:
Ocean governance – a nebulous conceptMarine protection is a matter that concerns everyone. But the question remains, how can use of the sea be regulated and governed to ensure that it is in fact sustainable? In this context researchers often speak of “governance”. Much like the term “sustainability”, no standard definition of the expression “ocean governance” currently exists. The Club of Rome, an international non-governmental organization (NGO) and expert panel founded in 1968, which deals with the negative consequences of economic growth, attempted to come up with a universal definition of the term. Accordingly, “ocean governance” was framed as the “the means by which ocean affairs are governed by governments, local communities, industries, non-governmental organizations, other stakeholders, through national and international laws, policies, customs, traditions, culture, and related institutions and processes.”
- 3.1 > A factory ship where fish are processed on board. Whether this large-scale industrial form of fishery contributes to the decline of a fish population depends on the condition of that population to begin with.
Thinking in zonesThis ideal of global sustainable ocean governance has not been achieved so far, for several reasons. One reason is the subdivision of the ocean into various zones, each of which is the responsibility of different institutions. According to the Convention on the Law of the Sea (UNCLOS), which was passed in 1982 by the United Nations Conference on the Law of the Sea as a kind of global constitution of the oceans and entered into force in 1994, today the following zones of the ocean are differentiated:
- TERRITORIAL SEA: The territorial sea is the 12-nautical-mile zone. It belongs to a state’s sovereign territory, and the right of peaceful passage prevails for international shipping. The other activities in this zone are subject to the legislation of the specific states. Legislation must be in line with internationally agreed rules provided that the state has ratified UNCLOS. EXCLUSIVE ECONOMIC ZONE (EEZ): This extends from the outer edge of the territorial sea to a distance of 200 nautical miles (approximately 370 kilometres) offshore. Therefore the EEZ is also called the 200-nautical-mile zone. Included within the EEZ are the sea floor and the water column. Unlike the territorial sea, the EEZ is not part of a state’s sovereign territory. Nevertheless, in its own EEZ only the coastal state may extract resources such as petroleum and natural gas, mineral resources and, of course, fish stocks. Other nations may only use the re-sources if the coastal state consents. Resource extraction in the EEZ is subject to the coastal state’s legislation, which in turn must be in line with the international rules laid out in UNCLOS.
- CONTINENTAL SHELF: The continental shelf is the gently or steeply sloping sea floor off the coast, which is a natural geological extension of the mainland. In the case of such a geological formation the country can exploit the sea floor and its mineral resources up to a maximum of 350 nautical miles off the coast. In other words, it can extend its continental shelf rights.
- HIGH SEAS: Adjoining the 200 nautical mile zone
are the high seas, which no national state may claim for itself alone; they are available for use by all countries. Nevertheless, the use of resources in sizeable areas of the high seas is regulated. Fisheries, for instance, are regulated by one of the Regional Fisheries Management Organizations (RFMO)and its member countries, which specify maximum catch sizes for fish species. For the use and distribution of raw materials on the sea floor, in contrast, only theFurther information on this topic is available here:International Seabed Authority (ISA)is responsible.Further information on this topic is available here:
- 3.2 > The United Nations Convention on the Law of the Sea (UNCLOS) partitions the ocean into different legal zones. Within this framework, the sovereignty of a state diminishes as distance from the coast increases. Adjacent to the inner waters is the territorial sea, which is also known as the 12-nauti-cal-mile zone. Here the coastal state‘s sovereignty is already curtailed, because ships from all countries are allowed passage through these waters. In the exclusive economic zone (EEZ) which extends up to 200 nautical miles from the coast, a coastal state has the sole right to explore and harvest living and non-living resources. It is thus permitted to exploit petroleum and natural gas, mineral resources or fish stocks. In the continental shelf zone, which is a natural extension of the mainland and can extend beyond the exclusive economic zone, it may explore and harvest resources on the sea floor. Adjacent to the exclusive economic zone is the area of the high seas. 3.3 > A conference on the Convention on the Law of the Sea (UNCLOS), held in March 1982 at the United Nations in New York. UNCLOS is one of the largest legal regimes on ocean governance.
- This zoning is fundamentally in conflict with any comprehensive sustainable ocean governance. Fish stocks can move across vast areas; toxic substances travel across national borders with sea currents and far beyond the bounds of an EEZ. And finally, as a consequence of climate change and particularly ocean acidification and sea-temperature rise, threats exist today which affect all marine areas equally, across all zones and borders. Article 192 of the Convention on the Law of the Sea obliges all states parties to protect and conserve the marine environment. In addition, Article 192 ff. cites a list of obligations, setting out how states are to make use of resources in a sustainable and environmentally benign way and minimize marine pollution. Nevertheless, UNCLOS does not provide any unequivocal definition of sustainability or concrete environmental protection standards. It neither describes in detail how resources are to be used, nor can it determine, for example, catch quotas for fishery. The specifics of environmental protection are left to the individual states parties. This being the case, today it is commonplace for certain coastal states to neglect marine protection due to lack of political interest or lack of financial resources. A consistent global level of protection for the ocean has not been achieved to date. Much the same applies to fishery in the international waters of the high seas. According to the standards set out in UNCLOS, fishery is regulated in most international ma-rine zones by one of the RFMOs. Usually it is the coastal states of a sea region that are organized in these RFMOs, along with just a few larger fishery nations. For example, the members of the RFMO responsible for the Northeast Atlantic, the North East Atlantic Fisheries Commission (NEAFC), include the European Union, Iceland, Norway and the Russian Federation. Other nations which do not belong to the RFMO responsible for the given sea area are not actually allowed to fish in that area. Nevertheless, illegal fishing could be taking place in these areas almost undetected, since such misconduct is rarely sanctioned. Irrespective of all the regulation of fishery, this means that even fish stocks in RFMO areas can be overfished.
Too many institutions involvedA further reason why no comprehensive regime for sustainable ocean governance has yet been achieved is that different institutions are responsible for each of the vari-ous types of ocean use. At the highest political level, first of all, there are various institutions under the umbrella of the United Nations (UN) dealing with the various different use and protection aspects of the ocean; for example, the ISA headquartered in Kingston, Jamaica, and the International Maritime Organization (IMO) in London which lays down the rules for international commercial ship-ping. These are set out in international treaties, the conventions. One example is the Ballast Water Management Convention. Ballast water is stored in special ships’ tanks. Its purpose is to keep ships stable when they are empty or lightly loaded. Depending on whether a ship in port is being loaded or unloaded, it will either pump ballast water into its tank or drain it back into the coastal waters. Along with this ballast water, in turn, marine organisms can be carried from one part of the world to another. If they become established there and suppress native species, this can change the nature of entire habitats. In order to combat the incursion of alien species, known as bio-invasion, under the terms of the convention, ballast water must be purified in future with special treatment plants on board ship.
- 3.5 > Ballast water being pumped out in a harbour. Ballast water can transport bio-invaders from one ecosystem into an-other. Some of the organisms reproduce so prolifically in foreign waters that they suppress local species. The International Maritime Organization’s International Ballast Water Management Convention therefore stipulates that ballast water must be purified in future.
- The IMO also has the right, upon request from member states, to place Particularly Sensitive Sea Areas (PSSAs) under protection. These are areas where shipping is restricted or prohibited in order to protect important fishing grounds, whale breeding grounds or areas of ecological value. Another example of a convention that was passed under the umbrella of the IMO is the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78). In Annex V, in force since 1988, it prescribes to shipping which wastes have to be collected on board. According to MARPOL, for instance, the disposal of leftover food may only take place outside the 12-nautical-mile zone. Plastic waste, on the other hand, may not be thrown overboard at all according to Annex III. The examples show that with UN authorities like the IMO or ISA taking such sectoral responsibility, it is perfectly possible to attain individual marine protection goals. But at times, having governance subdivided into different sectors can also be a hindrance. For example, no UN authority is currently able to place sea areas under complete protection – i.e. to impose protection which covers the sea floor, water column and fish stocks alike, which regulates shipping, and which prohibits other uses such as drilling for natural gas and petroleum. Moreover, on a global level there are additional UN authorities whose tasks only partly encompass marine aspects. The United Nations Food and Agricultural Organization (FAO), for instance, records data on the condition of fish stocks worldwide. Over the years it has published numerous guidelines for responsible fisheries and sustain-able fishing, but these are merely recommendations and in no way legally binding. Member states are left to decide for themselves whether or not to abide by them. >