Oceans Governance and International Law of the Sea: Closing the Gaps

The world’s oceans are an essential part of sustainable human life on Earth. The world as a whole relies upon healthy and resilient oceans for climate stability. Large parts of the global population depend upon oceans resources for food and employment. According to the United Nations Education, Scientific, and Cultural Organization (UNESCO), land-based sources can be attributed for causing 80 percent of oceans pollution globally. More than 90 percent of the world’s trade is seaborne. Consequently, at the dawn what some scientist call the “Anthropocene Age”, a new geological age marked by humanity’s significant global impact on the Earth’s ecosystems and geology, global oceans governance is of vital relevance for all states in the world—and the international community as a whole. It is for this reason that the United Nations will convene a high-level summit on oceans in Fiji in June 2017.

The oceans of the world are ‘common pool resources’ which require protection to maintain sustainable practices by the various stakeholders involved in the use and exploitation of the oceans. One way in which this has been done is through international agreements concluded under the auspices of the United Nations, such as the United Nations Convention for Law of the Sea (UNCLOS), and the United Nations Fish Stocks Agreement (UNFSA). It is the declared goal of the UN to achieve universal participation in these agreements. However, important gaps and shortcomings remain in this domain. Poor implementation, a lack of sufficient enforcement, and the fact that important oceans stakeholders refuse to become parties to these agreements, seriously diminishes the effectiveness of oceans governance.

With regards to the implementation of UNCLOS and UNFSA, it should be noted that these treaties face a problem which plagues international law and politics as a whole. Due to insistence on state sovereignty, lacking enforcement measures, and special interests, even legally binding treaties are difficult to enforce. This applies to both the UNFSA and the UNCLOS seeing that there is no supranational body which can implement and enforce the rules of the agreements on states. Bodies such as the International Tribunal of Law of the Sea (ITLOS), a specialized court established under the UNCLOS, the International Court of Justice (ICJ), the primary judicial organ of the United Nations, and occasionally the Permanent Court of Arbitration, can all have jurisdiction over disputes which arise with regard to the interpretation and application of these agreements. However, these legal bodies do not have enforcement mechanisms which are able to implement their decisions—and hence to uphold the commitments under these agreements.

An additional issue which affects the field of oceans governance is the fact that not all major stakeholders are parties to the aforementioned international agreements. For example, while 167 states are parties to UNCLOS, only 83 states have ratified the UNFSA. The United States is a notable example of a state which has not ratified UNCLOS—though it regards parts of the agreement as representation of customary international law. States which have not ratified the UNFSA include the United States, Mexico, and China. This lack of ratifications is due to the fact that some states do not want to subject themselves to the obligations created by these treaties, and thus limits their sovereignty and room for maneuver on the international stage.

What can be done, then, to close these gaps in current oceans governance and its international legal framework? In a report produced by the Global Ocean Commission in 2014, it was proposed to strengthen UNCLOS through an implementation agreement, and achieve universal ratification of both the UNCLOS and the UNFSA. According to the Global Oceans Commission, an implementation agreement could establish, “legally binding […] institutional mechanisms” as well as provide a plan for “equitable sharing of benefits derived from the potential exploitation of marine genetic resources in areas beyond national jurisdiction.” This proposal seeks to address the issue that the UNCLOS is poorly implemented, but may prove difficult to be enact due to the reluctance of states to relinquish sovereignty in the first place.

The goal of having universal ratification of the UNCLOS and UNFSA may also prove difficult to achieve because of the benefits enjoyed by states which “freeride.” In order to combat freeriding, the UNCLOS, like the proposed implementation agreement, may need to provide greater incentives for signing the treaty so that ratifying the agreement will become more beneficial than choosing to “freeride.” These incentives can include economic benefits, but can be of any nature which reward states for agreeing to the terms of the agreement.

In the current state of affairs in oceans governance, legal instruments such as UNCLOS and the UN Fish Stocks Agreement have limited effectiveness in the realm of oceans governance due to the relatively poor implementation, a lack of international legal enforcement institutions, and the fact that important stakeholders in oceans governance have not ratified these treaties. In order to consider solutions, reforms and recommendations to help close these gaps, The Hague Institute for Global Justice will host 2-day conference on the future of Oceans Governance on 31 March and 1 April 2016, in collaboration with the Observer Research Foundation and the Ministry of Foreign Affairs of the Netherlands, and with support of Leiden University College The Hague. The conference will include an expert panel discussion, which will be open to the public, in the afternoon of 31 March.

About the Authors:  Dr. Joris Larik is a Senior Researcher with the Conflict Prevention Program. Laurie Morgan is a Research Assistant and Student at Leiden University College. 

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Oceans

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