Categories: Marine Article 5

Modern Principles of High Seas Governance: The Legal Underpinnings

David Freestone*
George Washington University, Law School, Washington, DC, USA
*Corresponding author: dfreestone@law.gwu.edu

EPL, Vol.39, Iss.1, pp.44-49, 2009

 

Haub Prize acceptance speech

Introduction

The High Seas – or maritime areas beyond national jurisdiction – cover nearly 50% of the surface of Planet Earth. Despite the fact that the comprehensive legal regime developed by the 1982 Law of the Sea Convention (UNCLOS) has been with us for more than a quarter of a century and has been in force for some 15 years, it has not protected the high seas from unparalleled impacts from new human activities, such as bottom trawling on seamount ecosystems, and from the increased intensity of existing activities, such as huge increases in maritime transportation, pollution from waste and traditional fishing techniques. Nor has the legal framework that the UNCLOS provides been able to keep pace with the need to regulate either the exploitation of valuable new resources that have been discovered in high seas areas – be they highly vulnerable deep ocean fish species, ocean thermal vents with accompanying life forms that can live in temperatures as hot as 300–600°C, or cold seeps – or proposals for geo-engineering activities such as ocean fertilisation. Under the UNCLOS, coastal states have jurisdiction over living and non-living resources out to 200 nautical miles from their coastal baselines and over continental shelf resources out to the geological limit of their continental shelf. Beyond that point, the UNCLOS envisages the International Seabed Authority having jurisdiction, but only over the non-living resources of the seabed. Hence, there is a lacuna for deep-sea or seabed living resources and for 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, 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. Nevertheless international concern has been growing at the lack of an adequate comprehensive framework for high seas governance. While the international community is beginning to respond, progress has been slow. 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, and its second from 28 April–2 May 2008. A number of important proposals were discussed at these meetings including 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 1994 and 1995 implementing agreements which elaborate and modernise the 1982 Convention with respect to seabed mining, and highly migratory and straddling fish stocks respectively. In the context of these discussions the proposal also emerged that as the international community has already established and agreed to a number of basic principles governing the use and exploitation of the high seas, it would be a constructive contribution to the dialogue to enumerate these principles more explicitly – whether as a free standing declaration (perhaps by the UNGA) or as a part of another international agreement or arrangement. The issue of applicable modern principles had been discussed and elaborated upon at an International Union for Conservation of Nature (IUCN) workshop and further explored by a number of international expert groups, hence the IUCN Global Marine Programme decided to help clarify these existing principles and in September 2008 issued a document: “10 Principles of High Seas Governance” for public review and comment.

At the 2008 IUCN 4th World Conservation Congress in Barcelona on October 7, IUCN President Valli Moosa of South Africa chaired a plenary session presenting the IUCN “10 Principles of High Seas Governance”. I was asked to present those principles at that plenary and what follows is my attempt to provide the legal underpinnings for those principles. It should be stressed that these are not new principles – as I seek to demonstrate below, all of them are derived from existing regional or global instruments accepted by consensus. However they have never been collected together before in this way and they all require much more rigorous implementation than they are currently receiving.

Principle 1

Conditional Freedom of the Seas Article 87 of UNCLOS explicitly recognises six “freedoms” of the high seas, namely:
a) Freedom of navigation
b) Freedom of overflight
c) Freedom to lay submarine cables/pipelines
d) Freedom to construct artificial islands/installations
e) Freedom of fishing
f) Freedom of scientific research.

What is often forgotten however is that these are not absolute rights but are subject to a number of limitations and corresponding duties upon which their legal exercise is pre-conditioned. Unfortunately these duties and conditions tend to get forgotten. An object lesson perhaps is freedom of fishing. Under Article 116 of UNCLOS, 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 by no means an unfettered and 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 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 summarised, include obligations to take measures for their own nationals for the conservation of the living resources of the high seas (Article 117); to cooperate with other states in conservation and management of those resources (Article 118) and to base those measures on the best scientific evidence available, environmental and economic factors and “generally recommended international minimum standards” (Article 119). So, although the 1982 Convention talks of freedom of fishing, it is worth remembering that this is a conditional freedom. Similar conditions moderate the exercise of the other freedoms and one can, and should, therefore talk about conditional high seas freedoms, rather than absolute rights.

Principle 2

Protection and Preservation of the Marine Environment In relation to the marine environment the 1982 Convention introduced, in its 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 cooperate 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.

A host of regional seas agreements give substance to the duty to protect and preserve the marine environment contained in Articles 192 and 194(5). For example, the 1959 Antarctic Treaty was updated in 1991 through a Protocol on Environment Protection which established a comprehensive environmental regime including pollution controls, impact assessment requirements, as well as area and species conservation measures. In the north-east Atlantic, the Oslo and Paris Conventions of 1972 dealing with land-based pollution and dumping were entirely updated and a new more comprehensive treaty adopted in 1992, the Convention for the Protection of the Marine Environment of the North-East Atlantic; and the 1976 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its protocols were revised in 1995 also to enable more comprehensive conservation measures reflecting this duty in the 1982 Convention.

Principle 3. International Cooperation

The principle that members of the international community have a duty of international cooperation is well established in general international law. In the famous 1970 UNGA Declaration of Principles of International Law that is generally accepted as being declaratory of customary international law, the 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 cooperate. An example already referred to above in relation to the high seas is Article 117 which 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”. Of much wider application is Principle 7 of the 1992 Rio Declaration adopted at the UN Conference on Environment and Development (UNCED) which obliges states to “cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem”. And of course Rio Principle 27 which requires that “States and people shall cooperate in good faith and in a spirit of partnership in the fulfilment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development”.

Principle 4. Science-based Approach to Management

As we have seen above, the 1982 Convention mandates a science-based approach to management in that its 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 UN Fish Stocks Agreement (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”. In fact the precautionary methodology in the UNFSA that is set out in Article 6 and Schedule II and discussed below, requires that scientific reference points are established for target species “derived from an agreed scientific procedure” to constrain harvesting within safe biological limits. Many contemporary fisheries and natural resource management agreements – such as the 1980 Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR) and the NEAFC – have incorporated these approaches.

Principle 5. The Precautionary Approach

The widespread acceptance of the precautionary principle or approach is one of the most important and distinctive developments in international law relating to the environment and the management of natural resources. In November 1990, the UN Secretary General expressly recognised 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 or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." 

Precaution is a key strategy of the 1995 UN FSA. Article 6 requires that, to protect marine living resources as well as preserve the marine environment, the precautionary approach shall be applied widely to conservation, management and exploitation measures. It requires caution when information is uncertain, unreliable or inadequate, and the absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures. Annex II of the Agreement sets out guidelines for the application of this approach in relation to the conservation and management of relevant fish stocks. This is the first time that an operational precautionary methodology for fisheries management has been set out in a treaty, but it has been widely incorporated since into the practice of many natural resource management regimes. Precaution is also a key component of the practice of the 1972 London Convention and is expressly included in its 1996 Protocol. Indeed the 1996 London Protocol operationalises the precautionary approach for this one sector by prohibiting the dumping of wastes at sea other than those specifically permitted, and these are subject to detailed impact assessment requirements. This complements but is more specific than the definition of precaution adopted in paragraph 10 of the preamble to the Convention on Biological Diversity which provides that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainly should not be used as a reason for postponing measures to avoid or minimise such a threat.

Principle 6. Ecosystem Approach

Perhaps the first legal instrument in modern times to espouse an ecosystem approach is the 1980 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” [Article 5(d) and (e)]. A number of regional and species fisheries agreements now reflect this approach.

At the 2001 Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem, organised by FAO and the Government of Iceland, states recognised 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

Just as the UNFSA illustrates the way that international law has responded to the challenges of the modern age by recognising new principles and concepts such as precaution, other international legal instruments now increasingly recognise the new paradigm of “sustainable use” or “sustainable development”. First brought into the international arena by the 1987 Brundtland Commission on Environment and Development, sustainable development has been hailed as a basic paradigm for the 21st century. 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. The principle was included as Principle 4 of the 1992 Rio Declaration, and permeates other principles, Agenda 21 and numerous other instruments. In 1997 it was considered by the International Court of Justice in the Gabcikovo-Nagymaros Case between Hungary and Slovakia. Although the famous separate opinion of Judge Christopher Weeramantry, that sustainable development was a principle of customary international law, was not endorsed by the majority of the Court, it did however recognise the “need to reconcile economic development with protection of the environment … aptly expressed in the concept of sustainable development”. A commitment to sustainable use can now be found in a raft of international instruments, including those relating to ocean use such as the 1995 UN FSA, the 1995 FAO Code of Conduct for Responsible Fisheries and 2001 Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem. Sustainable use of fisheries is also included in the commitments of the world community in the 2002 Johannesburg World Summit on Sustainable Development Plan of Implementation. A well publicised aspect of this is the disproportionate overcapitalisation and use of state subsidies in the fisheries sector which decreases the ability of developing countries, as new entrants, to benefit from fisheries (intra-generational equity) and diminishes future options for sustainable fisheries (inter-generational equity). 

Principle 8. Public Availability of Information

Principle 10 of the Rio Declaration recognises 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 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. While Aarhus is a convention concluded under the auspices of the UN Economic Commission for Europe (ECE), it 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. While Aarhus is more directly relevant to national environmental decision making, nevertheless it does represent the “gold standard” for the implementation of the aspirations of Rio Principle 21, and many of the European nations that are party to other international agreements concerning the high seas – such as the 1972 London Convention and its 1996 Protocol as well as Regional Fishery Management Organisations (RFMOs) – are also party to Aarhus.

In this connection it is particularly worth recalling that in May 2005 in Almaty, Kazakhstan, at their second meeting, 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 organisations such as the International Maritime Organization (IMO) and the meetings of the Conference of the Parties to multilateral conventions such as the CBD, 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 good, 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."  These rights and obligations are repeated virtually verbatim in Rio Principle 2. For our purposes 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 and 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 is 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 illegal, unregulated and unreported (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. The FAO has already begun to develop principles for audits of Flag State Responsibility.

It is paradoxical that in looking for the articulation of this wider concept of responsibility in an existing treaty, the best example perhaps is to be found in Article VI of the 1979 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Celestial Bodies. It reads: "States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty." It must be admitted that the Moon Treaty has not commanded a large number of parties, but it would be tragic if we were left with the impression that the international community is more concerned with the Moon than with our own Blue Planet.

This presentation has sought to demonstrate that the 10 Principles of High Seas Governance promulgated by IUCN are not newly coined; all have been generally accepted by the international community in a range of global and regional instruments. 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.

EPL Marine Article 5

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