The United Nations Convention on the Law of the Sea (UNCLOS) – known as the ‘constitution for the oceans’ – is the main source of international law governing the global ocean. Perhaps its most familiar aspect is that each country governs fishing within its own Exclusive Economic Zone (EEZ), which extends to a maximum of 200 nautical miles from shore. Beyond that point lie the high seas – waters under international jurisdiction. They make up about two-thirds of the entire global ocean, amounting to 45% of the Earth’s surface.
UNCLOS defines the rights and responsibilities of nation states regarding uses of the global ocean including fishing, navigation, scientific exploration and seabed mining. Its agreement marked a milestone in multilateral cooperation, and has seen success on many of these issues – but not in all, as the depletion of fish stocks and the degradation of biodiversity demonstrate.
UNCLOS was conceived in the 1960s, negotiated in the 1970s and signed in 1982, although it did not enter into force until 1994. Fishing the deep of the great oceans, extraction of genetic resources from marine life, and geo engineering are among the many potential and actual uses that have emerged only in the years since then. Hydrothermal vents were discovered shortly before the signing of UNCLOS; threats such as ocean acidification are far too recent discoveries to have been included in its deliberations.
A new international order’ would be needed to regulate ‘the problems created by the advancement of science and technology’ and to ensure equitable shares in a world of growing competition. For a number of reasons, his vision for the high seas was not brought into reality in 1982, and remains elusive.
Another concern is that ocean governance is highly sectoral. Issues such as the laying of seafloor cables, seabed mining and ocean dumping are governed by separate treaties. On a regional scale, the patchwork of regulation can be even more complex. Across the high seas, there are more than 30 fisheries management and advisory organisations3. Their coverage is patchy and their effectiveness hugely variable. In addition, there are some 13 regional seas programmes4 under the UN Environment Programme, and five others that are also part of the regional seas network. In many areas, this makes legal waters far too murky for straightforward navigation.
Even if all existing agreements were effectively implemented and enforced, serious gaps in the global ocean governance system would remain. They include:
- no formal recognition of the need to protect biodiversity on the high seas and no mechanism with a mandate to do so
- no mandate for the establishment of high seas marine reserves
- no place for emerging uses such as bio-prospecting
- insufficient geographical coverage and lack of effective fisheries management
- lack of regulation of ocean noise and its potential impacts on marine life
- no conservation enforcement mechanism or competent enforcement body, and few or no sanctions against non-compliance.
Collectively, the gaps add up to a systemic weakness that allows threats such as illegal fishing and the destruction of marine biodiversity to continue.
A major component of the Global Ocean Commission’s work will be to scrutinise the legal framework and management rules governing the high seas, and assess what evolution might be necessary in order to ensure a healthy and sustainably productive global ocean in the future.
Ocean Under Threat
From the polar seas to the underwater abyss to the wide-open sweep of the Pacific, the global ocean is vital for life on Earth. It provides food for more than three billion people; it produces about half of the oxygen that we breathe, and absorbs roughly a quarter of our carbon dioxide emissions. It is set to become a major source of minerals and genetic resources to meet the growing needs of the 21st Century. The water and the seabed are home to an estimated two million species – perhaps more – although we have so far identified only one tenth of that number.
In recent years, it has become clear that we are not managing the ocean as effectively as we could. Many fish stocks are depleted; some may never recover. The rich biodiversity that scientists are only now discovering is threatened by destructive fishing methods, pollution and climate change. Illegal fishing vessels are an increasing threat to the security of nations and a commonplace scene of human rights abuses. Equally clear are the economic losses that poor management incurs, with depletion of fish stocks alone costing the global economy an estimated $50bn per year.
About one third of the global ocean is controlled and managed by individual governments. But threats and challenges are becoming increasingly serious in the high seas, the international waters that lie beyond national jurisdiction. The high seas make up nearly half of the Earth’s surface. Yet there is little monitoring and little policing for this vast area of the planet. Most fundamentally, the high seas sit under a legal system that that has not evolved in response to modern practices, technologies or scientific understanding.
With the global population set to increase from seven towards nine billion people in the next few decades, the need to secure a healthy and productive global ocean could not be more pressing. A healthier ocean that is better managed could provide more food and more employment. Combatting illegal fishing would improve prospects for nature, for the ecosystem services that we need, and for responsible businesses. It could also ensure that the benefits from the exploitation of ocean resources can be sustainably managed and equitably shared.
These issues are not unfamiliar to the international community. At successive meetings within the United Nations system, most recently the Rio+20 summit, governments continue to raise issues of concern, including the threats from climate change and ocean acidification, overfishing, illegal fishing, and subsidies that drive unsustainable consumption. They have also debated the need to conserve and protect marine ecosystems to both restock the ocean and build its resilience to change. Regional fisheries organisations continue to discuss the difficult issue of sustainable high seas fishing and the persistence of illegal fishing; security agencies raise the links between illegal fishing and issues such as piracy, terrorism and drug smuggling. But so far, making the transition towards securing a healthier and more productive global ocean has proven to be a challenge.