Modern Principles of High Seas Governance

1. Modern Principles of High Seas Governance David Freestone Safeguarding the high seas: a road map to protection of the Earth’s Final frontier IUCN World Conservation Congress 7 October 2008

2. The High Seas: Areas Beyond National Jurisdiction Nearly 50% of Planet’s surface Increasing human impact on Areas beyond National Jurisdiction Increased intensity of existing activities New activities BUT no comprehensive governance framework for Areas beyond National Jurisdiction

3. 1982 UN Convention on the Law of the Sea (LOSC) • Basic Framework for the Law of the Sea • Negotiated over 9 years 1973-1982 • 320 Articles and 9 Annexes • Came into force 1994; Over 150 Parties • Widely regarded as stating customary international law • Two Implementing Agreements

4. Weaknesses of current high seas governance Poor implementation Uncoordinated rule-making Weak enforcement provisions Many unregulated activities Geographic gaps

5. Environmental processes: Human impacts are increasing More than 40% of oceans already strongly affected, Halpern et al., 2008

6. Pre-peak Harvest Peak Post-peak Fisheries resources decreasing Year of Peak Fish Harvest Source: Millennium Ecosystem Assessment and Sea Around Us project

7. Ocean transport spreading Julian Roberts, 2006

8. Growing threats from climate change…. UNEP, In Dead Water, 2008

9. RFMOs & Arrangements for Discrete high seas fish stocks Non-tuna or tuna-like fish stocks Geographical gaps

10. Regional Seas Agreements Only cover areas within national jurisdiction, other than: Northeast Atlantic Mediterranean South Pacific high seas donut holes, and Southern Ocean

11. 10 Principles for High Seas Governance • Not new principles • Derived from existing global and regional instruments • Accepted by consensus - not controversial BUT • Have never been collected together before in this form AND • Require much more rigorous implementation

12. Existing Global Instruments 1982 Law of the Sea Convention 1992 Rio Declaration and Agenda 21 1993 FAO Compliance Agreement 1995 UN Fish Stocks Agreement 1995 Code of Conduct for Responsible Fisheries 2001 Reykjavík Declaration on the Ecosystem approach 2002 WSSD POI FAO International Plans of Actions

13. Principle 1 Conditional Freedom of Activity on High Seas

14. Freedoms of the Seas • Recognized by 1982 LOSC (art. 87) • Freedom of Navigation • Freedom of Overflight • Freedom to Lay Submarine Cables/Pipelines • Freedom to Construct Artificial Islands/Installations • Freedom of Fishing • Freedom of Scientific Research BUT these are not ABSOLUTE Rights Subject to conditions – which get forgotten

15. E.g. - Freedom of Fishing Art. 116 LOSC: “All states have the right for their nationals to engage in fishing on the high seas, subject to (a) their treaty obligations (b) the rights and duties, …[and] interests of coastal states ... (b) the provisions of this section.” NOT an absolute right. It requires: cooperation for management and conservation (art 117) conservation measures based on: Best scientific evidence available Environmental and economic factors Generally recommended international minimum standards

16. Principle 1: Implementation Challenges: • States need to fulfil their obligations to reap benefits • Audit of Flag State responsibilities • “Performance Reviews” of Regional Fisheries Management Organisations (RFMOs) • Access to fishery restricted to RFMO members or those who agree to comply with rules. (UNFSA) • Need a Process for new activities: • as in ocean cable industry

17. Principle 2Protection and Preservation of the Marine Environment

18. Protection and Preservation of the Marine Environment Article 192 LOSC “States have the obligation to protect and preserve the marine environment.” Article 194.5 LOSC “The measures taken ... shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitats of depleted, threatened or endangered species and other forms of marine life.”

19. Implementation There is a developed sectoral regime for • Oil pollution from vessels • Ocean dumping • Emerging regime for ballast water But no regulatory framework for • New and emerging threats • Cumulative and synergistic impacts • Environmental impact assessments and monitoring • Marine protected areas in High Seas

20. Principle 3International Cooperation

21. 3: Legal Duty of Cooperation 1970 UNGA Declaration of Principles of International Law 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 … 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 (art 117 LOSC)

22. International Cooperation: Moving Forward • International Management Bodies are Treaty based – rely on co-operation • Wider use of UNFSA approach to restrict fishing by non-members of RFMOs • Ensure RFMOs can and do fulfil their role as stock and ecosystem managers • not simply allocators • Apply similar approach to other high seas activities

23. Principle 4 Science-Based Approach to Management

24. Science-based Approach to Management Science-based approach already recognised by the legal Instruments but needs to be universally applied: • In assessment of impacts of new activities and expansion of existing activities • In allocation of catch targets • E.g. allocation proportions can be political but TACs should be based on science

25. Principle 5 Precautionary Approach

26. Rio Principle 15 “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capacities. 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.”

27. Precautionary Approach • Operational procedures for a precautionary approach set out in Article 6 and in Annex II of UNFSA • Already used in some capture fisheries • CCAMLR , • Pollock fishery in Bering Sea • Already incorporated into London Convention and Protocol for ocean dumping • Needs also to be applied to new activities –

28. Principle 6 Ecosystem Approach

29. Ecosystem Approach • Origins – adopted by UNGA, by Agenda 21 and is in the UNFSA and the 2001 Reykjavik Declaration • Needs to be internalised by ocean decision makers • to consider range of impacts of activities • Networks of marine protected areas as part of large scale spatial planning • GEF Large Marine Ecosystem Programme is supporting this • High Seas are an ideal place to implement this – fewer boundaries and stakeholders

30. Principle 7 Sustainable and Equitable Use

31. Sustainable Development A basic paradigm for 21st Century Rio Declaration and Agenda 21 In Gabcikovo-Nagymaros (1997) International Court pointed out “need to reconcile economic development with protection of the environment … aptly expressed in the concept of sustainable development “ “Sustainable Use” is in UNFSA, Code of Conduct and Reykjavik Declaration …

32. Sustainable and Equitable Use • Part of UNFSA and WSSD commitments • Sustainability is undermined by over-capacity, overcapitalization and by subsidies: • Global annual cost of $50 billion is equivalent to more than half the value of the global trade in fish • (The Sunken Billions – World Bank 2008) • Decreases the ability of developing countries (new entrants) to benefit from fisheries (intra-generational equity) • Diminishes future options for sustainable fisheries (inter-generational aspects)

33. Principle 8Public Availability of Information

34. Public Availability of Information Transparency provides an important tool for the international watchdog function • Access to fisheries data, including catch and location of vessels, • An important deterrent to IUU fishing – but could be a more effective • Access to information on other resource uses • Free availability of results of marine scientific research, and • Increase public availability of data

35. Principle 9 Transparent and Open Decision Making Processes

36. Transparent and open decision-making processes • There is no general culture of openness in fisheries conventions meetings • Contrast with IMO and CBD • Yet this is a global public resource Urge: • Access to meetings and ability to participate in working sessions in RFMOs • There is a model in Article 12 requirements of UNFSA

37. Principle 10Responsibility of States as Stewards of the Global Marine Environment

38. Responsibility of States as Stewards of the Global Marine Environment • 1995 FAO Code of Conduct for Responsible Fisheries • Challenge is to develop Responsibility concept • Already a legal duty not to cause damage to neighbors or areas beyond national jurisdiction • Responsibility of States for failure to regulate ships and nationals • Greater responsibility for behaviour of citizens – boats, crews and owners and investors – all in value chain. • FAO already looking at audits of Flag State Responsibility • Compare state obligations under the Moon Treaty

39. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies Article VI 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.

40. Thank You