Negotiating our Future with the Oceans

Négocier notre avenir avec les océans
46
Article Index
Ocean Zones under UNCLOS
A sampling of treaties aimed at the global…
46

For several centuries, nations have negotiated agreements to accommodate their mutual interest in oceans. In 1982, these negotiations resulted in a global framework convention, complemented by treaties for specific activities and regional arrangements. Today, challenges to this regime pose critical and daunting problems, from effective enforcement to managing climate change impacts.

The oceans are the rule; the land, the exception. If the Earth were precisely spherical, the oceans would cover the entire globe to a depth of 2646 metres (8682 feet). Humanity's relationship to the oceans is foundational to all life on Earth, to the way we live and the environment that sustains us. With political authority on Earth divided among states, each more or less sovereign, the oceans have become the subject of intense international negotiation over the centuries. This chapter addresses where those negotiations have taken us and where they still need to go.

Historically, the oceans have been both an arena for the extension of conflict on land and a source of competition for the resources they contain. Comprising approximately 70 percent of the surface of the planet, the oceans play an enormous role in the affairs of nations. Over the past several centuries, there have been several attempts to devise a legal framework that can provide stable expectations in this valuable area, thereby avoiding conflict and promoting cooperation. This framework has been achieved, but it faces significant challenges

The Foundational Choice: Freedom of the High Seas

The modern law of the sea is rooted in the expansion of European maritime state powers some 400 years ago. This growth of maritime powers gave rise to debate and conflict between the states that sought exclusive control over large expanses of the oceans and those that wanted such areas to remain relatively ungoverned and open to all. Two publications illustrate the opposing viewpoints. The Dutch scholar Hugo Grotius wrote Mare Liberum in 1604, advocating for freedom of the high seas and arguing that the vastness of oceans precluded the exercise of dominion, except for a state's narrow band of exclusive waters (the "territorial sea") (Grotius 1604 [2000]). In contrast, the British scholar John Selden wrote Mare Clausum in 1617 in which he defended an expansive view of territorial sovereignty over the seas and their resources (Selden 1617 [2004]). This debate was resolved in favor of Grotius's "freedom" position, although it should be noted that the precise content of that freedom remained unclear and would be elaborated upon by international custom in succeeding centuries. This foundational choice in favor of freedom of the high seas meant a limited notion of shared governance: it existed only in the sense that the seas were agreed to be open to all, and that use of the seas must be pursued with respect for the freedom of others to do the same.

The core principle that no state may subject the oceans to its exclusive use, thereby denying all other states access, also avoided open conflict between states. But the resulting decentralization (if not outright lack) of authority left the oceans open to misuse and over-exploitation. If freedom of the high seas may be said to represent a foundational choice in maritime law, two developments over the past century have eroded the core of that choice. The modern period of the law of the sea is marked by the international community slowly moving from a basically unsupervised freedom of the high seas to (1) greater and greater allocation of ocean spaces and their resources to adjacent coastal states (thereby "enclosing" the high seas) and (2) the negotiation and widespread acceptance of treaties and institutions to govern activities on the oceans. The movement both toward larger coastal state exclusive-use zones and toward more detailed high-seas governance regimes primarily arose as technological developments rendered both living and nonliving resources more accessible and more subject to overexploitation. Many treaties address ocean uses, but the center of the present legal framework is the 1982 Law of the Sea Convention (UNCLOS) that provides the basic framework defining the rights and duties of states.

Technology: the Negotiation Trigger

The general acceptance of the underlying principle of freedom of the seas, expanded upon by custom, led to a relatively stable legal regime by the early 1800s. This is not to say that the oceans were free of violence and conflicts: this period and the century that followed witnessed piracy and horrific warfare at sea (naval battles, blockades, submarine warfare and attacks on civilian and neutral shipping). But this violence and conflict were not so much about the oceans themselves as they were extensions of conflicts on land into the oceanic arena. Nonetheless, with some exceptions, the law of the sea was basically agreed upon in broad terms, and one might have thought further elaboration by custom would address the remaining disagreements and uncertainties.

However, technological advances - arising slowly through the nineteenth century and then accelerating dramatically throughout the twentieth - altered this picture. Indeed, such advances in technology (and the demand to utilize them) have repeatedly destabilized the existing law of the sea, and there is little reason to think that this pattern will not continue.

In particular, and very significantly, in the early 1900s the fishing industry rapidly increased its capacity to harvest living ocean resources through the advent of steam engines and refrigeration. These changes resulted in large-scale fishing fleets, often operating at substantial distances from their homeports. This development not only changed the scale of fishing, but also complicated negotiations concerning fisheries. Up to that point, nations were primarily concerned with protecting the local fisheries sought after by their nationals. One objective of negotiations was therefore to extend exclusive control of coastal states to cover adjacent fisheries. But as some states also developed long-distance fishery fleets, their negotiations aimed instead to preserve access to fisheries abroad. These changes also placed demonstrable stresses on the living resources of the oceans that had once been thought essentially inexhaustible.

Just as importantly, the period between the two world wars witnessed a growing interest in offshore oil exploration, an interest that exploded after World War II. The first wells were immediately adjacent to shore in shallow water. But the rapidly emerging knowledge of continental shelf structure and the shift in energy generation from coal to oil - especially in the wake of World War II's demands - dramatically increased coastal states' demands for exclusive control of the oil adjacent to their coasts.

These two parallel developments in fish and oil lent urgency to international negotiations, not only to codify the existing law of the sea but also to progressively develop it. In both cases, the fundamental question was how far out to sea the exclusive control of the adjacent state extended. This was an acute question, because extending exclusive control meant that states would widen their territorial sea; and extending the territorial sea would enclose (make smaller) the high seas and their freedoms, including the right to freely navigate.

At the end of World War II, then, the outstanding question was the maximum width of a nation's territorial sea, a width that grew more significant as the interest of states in both fisheries and oil increased; this became the central issue of negotiation and, apparently, one almost impossible to resolve. Moreover, as these negotiations dragged on through the twentieth century, it became manifest that the oceans and their living resources were physically finite. Thus, concerns grew not only over who would get to exploit them, but also how to conserve them.

The 20th Century and the Negotiation of a Global Framework

In 1930, the League of Nations convened the first international forum to codify the customary law of the sea. The conference made some advances in ascertaining customary law at that time, but it critically failed to produce a consensus as to the appropriate breadth of the territorial sea. Shortly thereafter, the question of ocean law and governance was put aside by the exigencies of World War II - a war that, in hindsight, now seems to have provided a much-needed respite for fish and whale stocks already evidencing depletion.

At the conclusion of the Second World War, two proclamations triggered a cascade of events that challenged the precarious balance in the law of the sea. President Harry S. Truman issued both in 1945; they reflected the increasing value of ocean resources to the adjacent coastal state. One proclamation asserted the right to jurisdiction over the continental shelf and its resources. Importantly, this assertion claimed only the seabed, not the water column above (Truman 1945a). In this way, the proclamation did not reduce the size of the high seas or the ability to navigate freely on or below the surface. The nations of the world quickly moved to adopt such assertions of sovereign rights. Definitions of the outer edge of the continental shelf varied, and the legal limit therefore was not entirely clear, but the basic concept moved into practice. The other proclamation proved more problematic. It asserted the United States' right to establish fishery conservation zones in the waters above (Truman 1945b). The United States did not claim such a fishery zone, but soon thereafter a number of Latin American countries (most notably Chile, Peru and Ecuador) began asserting 200-mile fisheries jurisdictions, if not 200-mile territorial seas. Thus the portion of the high seas under at least partial exclusive control of a state expanded significantly. The United States attempted to reverse direction on the fishery proclamation, but it was too late. The precarious customary balance between a narrow territorial sea and the broad high seas had been broken. By triggering other unilateral actions, the proclamations increased the perceived need to develop an internationally coordinated approach to national claims of authority over the oceans.

The First and Second UN Conferences on the Law of the Sea

In 1950, the International Law Commission undertook a study of the law of the sea; and building on that effort, the first United Nations Conference of the Law of the Sea (UNCLOS I) opened in Geneva in 1958. The results of the conference were splintered into four separate conventions. A state could sign as many or as few of them as it wished, defeating the original intention to create a comprehensive governance scheme. Because the conventions combined customary with new international law, if a state opted not to sign all the conventions, it remained unclear which international norms applied to it. Moreover, hopes for a new consensus from the conference had not taken into account the large number of states decolonizing in the succeeding years, states that had not participated in the negotiations and did not feel compelled to sign or comply. Although one of the four conventions addressed the territorial sea, the conference failed to produce agreement on the critical question of its permissible width.

A second conference in 1960 attempted to address the outstanding questions, but failed to achieve a majority vote on the breadth of territorial seas or on an extended adjacent, yet narrow, fishing zone. For this and other reasons, these two multilateral negotiating conferences, UNCLOS I and II, are seen in hindsight as important learning experiences but ultimately unsuccessful on the central challenges facing stability in the law of the sea.

The Third UN Conference on the Law of the Sea

One of the events credited with instigating the third UN conference was a historic speech that Ambassador Arvid Pardo of Malta made to the UN General Assembly on 1 November 1967 (Pardo 1967). It must be recalled that after World War II, the outer edge of the continental shelf had no precise definition and states' legal limits in practice often were unclear. That lack of clarity worsened with a reference in the 1958 Convention on the Continental Shelf, which declared that the outer limit of the shelf extended offshore "to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of . . . exploitation" (Pardo 1967). This left open the possibility that the coastal states would reach out further and further, claiming "adjacent" seabed areas until the entire bottom of the oceans was carved up. Arvid Pardo proposed that the deep seafloor, the area beyond what is geologically understood as the continental margin, should not be open to exploration and extraction by individual states, but rather that the seabed underlying areas beyond national jurisdiction should be considered the "common heritage" of humankind. In his view, the race to be the first to possess ocean floor resources would give way to an international authority to oversee development of this shared resource. The proposal led to the establishment of the Ad Hoc Seabed Committee in 1968. Within two years, the committee had outlined common heritage principles to govern the deep seabed, and called for a convening of the third conference on the law of the sea.

Before UNCLOS III began in 1973, two unrelated but influential international forums convened. In June 1972, the UN Conference on the Human Environment met in Stockholm and promulgated twenty-six principles regarding international environmental and developmental concerns (UNCHE 1972). The following November, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter was adopted in London, the first effort to control marine pollution by regulating ocean dumping (UNCPMP 1972). The agreements represented proactive efforts to curb the overutilization of the oceans, and it was within this context that the first meeting of UNCLOS III took place.

When the conference began in 1973, it was divided into three negotiating groups. The first focused on the legal regime of the deep seabed and mining; the second on jurisdictional questions such as the extent of the territorial sea; and the third on issues such as preservation of the marine environment and scientific research. Two widely shared negotiating principles helped ensure the success of UNCLOS III: the convention was based on consensus rather than voting, and any document produced had to be all-inclusive, unlike the fragmented outputs from UNCLOS I. Original estimates foresaw a draft within a few years, but it ultimately took nine. The final document was signed in Jamaica on 10 December 1982. The requisite sixtieth signature was received in 1993, and after a one-year waiting period the convention entered into force in November 1994. Today, 160 states are party to the 1982 Law of the Sea Convention (the Convention or UNCLOS) making it one of the most widely ratified treaties on any subject. Broadly speaking, it may be said that the Convention accomplishes three things:

* it provides relatively clear jurisdictional allocations and boundaries between states and between states and the international community;

* it provides substantive foundational principles of conduct both in the internationally shared areas and in areas allocated to state control; and

* it provides for a system of mandatory dispute resolution.

UNCLOS and the Allocation of Jurisdiction

The Convention (UNCLOS 1982) allocates authority over the oceans through a set of maritime zones summarized visually in Figure 1. UNCLOS provides for (1) a territorial sea up 12 miles in width (Articles 2-3); (2) a contiguous zone that can extend from 12 out to 24 miles from shore (Article 33); (3) an Exclusive Economic Zone (EEZ) that grants sovereign control over both the resources of the water column and the seabed out to 200 miles (Articles 55-59); and (4) a High Seas regime beyond 200 miles (Article 86). In addition, seabed jurisdiction can extend further to the edge of the continental margin or shelf, as determined by a specific methodology and as reviewed by a supervisory committee (Articles 76-77). Beyond fixing areas of national jurisdiction, the Convention also realized Ambassador Pardo's vision of designating the mineral resources of the deep seabed as the common heritage of humankind (Articles 1(1), and 136-137). The Convention finesses the problem of extending coastal state sovereignty into the High Seas by creating a unique zone, the EEZ. The EEZ is an area of mixed competences: on the one hand, it allocates economic rights to the coastal state, but it otherwise preserves the traditional freedom of the high seas enjoyed in those waters (Articles 56, 58-59).

UNCLOS and Principles Applicable to National Governance

A critical point: by allocating jurisdiction to coastal states, the Convention relies on individual nations for governance of much of ocean space. But nations have obligations as to how they will govern. At numerous points, the Convention requires that the nation with jurisdiction ensure the environmental integrity of the oceans. Similarly, the Convention requires the coastal state to conserve and optimally utilize the living resources within an EEZ (Articles 61-62)

In a strong endorsement of governance, the state parties are required to submit disagreements to dispute resolution. The forum for resolution is chosen when a state ratifies the convention: the International Tribunal of the Law of the Sea, the International Court of Justice, or an arbitrating tribunal. If the parties do not agree as to the forum, the default is arbitration (Articles 286-288).

Two concerns regarding the Convention were addressed by subsequent implementing agreements. The first was the 1994 Agreement Relating to the Implementation of Part XI of UNCLOS (Part XI Agreement); the second was the December 1995 Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement). The two agreements served very different purposes. The Part XI Agreement scaled back the cooperative, resource-sharing components of the deep seabed regime in hopes of attracting signatures from developed states. By addressing the main area of concern to the United States, the Part XI Agreement freed up many other developed states, such as Germany and Japan, to ratify the convention. The Fish Stocks Agreement served to complement and expand the conservation role of the treaty, addressing the question of fish stocks that straddle the EEZ of a coastal state and the high seas open to all.

Nesting Treaties for Activities and Regions Within the Framework

The 1982 Law of the Sea Convention provides a framework. It foresees that many particular questions will nest within this framework, either through treaties addressing particular activities on the oceans (for example shipping), or through treaties more comprehensively addressing a particular ocean region (for example the South Pacific). We now turn to a sampling of these treaties. (See Table 1)

International negotiations tend to focus on particular activities, or even specific issues regarding such activities, to increase the likelihood of diplomatic success. In the 1800s, negotiating conferences were called by a host government; often, they were bilateral and sought to resolve a particular existing dispute. Today, by contrast, such conferences are most often hosted by permanent multilateral organizations with expertise in the field. And the state parties in that context often seek a multilateral arrangement that regulates future actions. In the area of the oceans, a few international organizations dominate: the International Maritime Organization (IMO) in London addresses issues involving ships and offshore oil platforms, including concerns with safety and pollution, as well as the dumping of wastes at sea; the Food ''& Agriculture Organization (FAO) in Rome has increasingly addressed fisheries conservation; and the United Nations Environmental Programme (UNEP) in Nairobi has a broad mandate to facilitate consideration of oceanic environmental questions.

The law-making processes that structure ocean governance thus take place in various organizations in response to particular activities causing concern. Numerous IMO treaties, for example, have negotiated measures to make ships and shipping safer to those aboard and to the marine environment. In these treaties, the governance of shipping tends to focus on implementation by the flag state of each vessel, that is, the state whose nationality the ship possesses. The ability to reflag ships to states with less rigorous governance ("flags of convenience") has been a constant point of weakness in this approach. This impetus has led to particular efforts aimed at such flags and to the opening of concurrent jurisdiction over the vessels: jurisdiction according to the state the ship sails past ("coastal state jurisdiction") and jurisdiction by the state that the ship sails to ("port state jurisdiction"). Fisheries management tends to be negotiated on a regional basis and, even then, fishing stock by fishing stock.

Ocean governance efforts also take place at the regional level. Here, UNEP supplied a foundation by initiating its Regional Seas Programme, aimed at the creation of small regional organizations that would foster a shared sense of ownership in the long-term health of their region. Today, there are fourteen such regional seas programmes involving some 140 states. An example is the Seychelles-based East African Regional Seas Programme, created under the 1985 Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of Eastern Africa. Its members include Comoros, France (Reunion), Kenya, Madagascar, Mauritius, Mozambique, Seychelles, Somalia, South Africa, and Tanzania; they are working together, for example, on the protection of reef systems from coral bleaching.

The Challenges in Negotiation and Governance Ahead

Despite the successful growth of the law of the sea, several extremely serious challenges have emerged recently, such as fishery collapse, coastal 'dead zones' due to land-based sources of pollution, and the many issues that accompany climate change, such as ocean acidification. It will be our continuing task to ensure that the hard-won law of the sea will continue to evolve to meet the conflicting and changing demands on the oceans, and thereby provide a stable environment for cooperation. Three particular challenges to negotiating our future with the oceans loom ahead.

The stresses on fishery stocks and the marine environment have grown more apparent, as earlier impacts manifest themselves and as a growing global population and increasingly efficient technology place ever-greater demands on the oceans. It remains to be seen whether UNCLOS and complicated regulatory systems are capable of solving these problems, or whether the central issue is simply inadequate enforcement of present laws. Enforcement resources are already stretched thin, for example, in efforts to identify flags of convenience and to effectively monitor enough of the oceans to deter illegal conduct. Although the lack of enforcement capacity is most evident in the area of fisheries, it presents a challenge to all efforts at ocean governance.

It should not surprise us that problems of ocean health and ocean governance increase nearer to the coastline. This does not imply that nations fail at governance, although that may occur simply because they lack the capacity to govern such large zones. Rather, it reflects the fact that some aspects of ocean governance become more difficult as one approaches populations and more human activity. Such activity on the high seas is, as stated above, difficult to govern. But the amount of activity is limited, particularly in comparison to the range of activities encountered near the coast. More and more of the world's population resides in the coastal zones of the Earth. And critically, it becomes rapidly apparent that ocean governance is inseparable from governance of the coastal zone generally. Indeed, the major threat to the health of coastal ocean areas is "land-based" pollution - meaning, in significant part, the pollutant run-off from rivers into the ocean, pollutants that can originate far inland from agriculture, among other activities.

Not that long ago, a negotiation about fisheries was a discussion about the interests of the states involved. More and more, negotiators now find another entity at the table: the environment. The environment is a difficult negotiating party. It not only does not compromise; it does not present its demands until it is too late. Climate change has made this clear. Future negotiations and the resulting governance mechanisms therefore must institutionalize continuous learning processes: scientists can "interrogate" the ocean environment regarding its "position." The states involved, in turn, are more apt to legitimize the knowledge resulting from such institutionalized learning, and use it effectively to prompt new laws and changes in management priorities.

A strong and widely-accepted framework for ocean governance currently exists, complemented by activity-specific treaties and by regional arrangements. However, the difficulty of enforcement undermines its governance, and the balance of interests implicit in the global framework will be tested as ever-increasing demand and climate change stress ocean resources. The future of ocean governance, like its past, requires leaders with dedication and imagination.

Ocean Zones under UNCLOS

(Numbers in parentheses are references to articles of the Treaty)
Show Media

A sampling of treaties aimed at the global framework or specific issue areas

Source: Compiled by the author
Show Media