Cooperation and compliance control in areas beyond national jurisdiction

Past decades have shown a constant increase in the number of international agreements regulating marine areas. Environmental changes as well as technological developments resulting in an increased use of oceans ensure the need for further governance in the future of high seas. At the same time, compliance by States with international obligations remains a considerable challenge in international law. In particular, regulations governing areas beyond national jurisdiction (ABNJ) are at risk of not being obeyed due to factual challenges posed to the control of high seas territories and the (legal) limits of the law of the sea. This article evaluates a stronger cooperation between States through the incorporation of compliance control systems in agreements regulating ABNJ in order to enhance compliance by States. For this purpose, provisions on compliance control measures which have already been established in two agreements regulating ABNJ, namely the International Convention for the Regulation of Whaling and the United Nations Fish Stocks Agreement, are analyzed. It is argued that the incorporation of compliance control elements into agreements regulating ABNJ is a promising avenue to secure improved compliance among States Parties and further implementation of this approach is recommended.     

Identifying new pathways for ocean governance: The role of legal principles in areas beyond national jurisdiction

This paper seeks to illustrate the role of principles in an emerging regime for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ). While certainly not a standalone solution for a complex issue, principles nonetheless serve an essential function in regime-building, bridging legal and governance processes to identify new ways forward. Given the fundamental questions of international law at hand – the restriction of the freedoms of the high seas, the nature of UNCLOS as a “living instrument” and the need to engage in innovative practice spanning law and governance – it comes as no surprise that discussions on the future of ABNJ have been highly polarized. Principles offer points of convergence to address both the “regulatory gaps” and “implementation gaps” identified and serve the structural needs of both law and governance to produce dynamic change in the protection of marine biodiversity in ABNJ. Through their function as precursors to rules, principles prepare a common space for the emergence of a regime and give it a set of mechanisms through which it can strengthen its connections to the diversity of instruments and institutions involved in addressing a multifaceted problem. A statement of principles to strengthen the conservation and sustainable use of marine biodiversity in ABNJ – many of which constitute customary international law – would therefore be a logical and constructive next step in this on-going process.     

The international ocean regime at the new millennium: a survey of the contemporary legal order

This study surveys the international regime governing the use of ocean space by examining various agreements that have come to comprise it. While the regime for the oceans is commonly viewed within the context of a general, universal convention for the law of the sea, the contemporary scope of global oceans law extends far beyond that single instrument. Indeed, the law of the sea is broad, far-reaching and reflective of the increasingly complex, interdependent nature of contemporary international relations. In this regard, by end of the 20th century there has emerged a pronounced trend toward worldwide participation in and adherence to the multifaceted legal regime established to manage the oceans. This panorama of legal instruments focuses both on international instruments and regional accords. The study's premise is this: Since 1958 several multilateral agreements have been negotiated and implemented specifically to regulate various uses of ocean space. Viewed as an integrated whole, these agreements comprise at the beginning of the 21st century an intertwined, sophisticated international legal regime for managing ocean activities. The range of agreements discussed here, however, is neither exhaustive nor meant to suggest that sufficient law is available for regulating all activities affecting the oceans now or in the future. Rather, the survey furnishes a starting point for appreciating just how far the international community has come in establishing a legal regime for managing people and their technological activities that impact on ocean space.     

Ecosystem-based marine management in European regional seas calls for nested governance structures and coordination—A policy brief

Marine governance in European seas is at a crossroad aiming towards implementation of eco-system based marine management (EBMM) through integration of different EU policies or directives to protect the environment, while at the same time expected to facilitate growth and employment in support of the blue economy. This article shows that the governance landscape at the regional sea level is very complex, fragmented and faced with several dilemmas. It examines the present governance structures in the four European seas (Baltic, Black, and Mediterranean Seas and North East Atlantic Ocean). It is argued that the implementation of EBMM at the regional sea level is characterized by a highly fragmented European governance system where there is lack of coordination between relevant DGs within the European Commission, between EU, International organisations, Regional Sea Conventions and the Member States and between sectoral governance arrangements that should provide sectoral management measures that support EBMM. The article develops suggestions for a nested governance system in which institutions, policies, laws and sectors are nested into a tiered, internally consistent and mutually re-enforcing planning and decision-making system. Developing institutional interaction and soft modes of governance between the EU, the Regional Sea Conventions, Member States and the governance arrangements of the different marine sectors will be crucial in evolving towards such a nested governance system for EBMM. Moreover, there is no one size fits all approach in implementing EBMM, which means that for each European Sea a context-dependent nested governance system should be developed.     

Rights based fishing on the high seas: Is it possible?

The high seas fisheries are troubled by overcapacity and lax enforcement of management rules. The idea has emerged that these problems could be dealt with by property rights solutions such as ITQs. Such management tools only emerged after the 200-mile EEZ was established. This made it possible to apply the sovereign state's legislative, enforcement and judiciary apparatus to regulate fisheries. It is argued that without the EEZ such solutions would have been unlikely to emerge, and that a further extension of the EEZ is necessary to apply rights-based regulations to high seas fisheries. The current management regime of high seas fisheries lacks the necessary enforcement apparatus, which makes it necessary to apply trade sanctions, port measures and blacklisting to support regulations of high seas fisheries. It is argued that such measures are likely to be the second best, compared to further extending coastal state jurisdiction. Finally a bioeconomic model is applied to analyze potential gains from cooperation in high seas fisheries.     

The international legal framework for the management of the global oceans social-ecological system

This paper evaluates the international agreements in place for the protection of the environment and the regulation of human activities taking place in world's oceans and seas. 500 multilateral agreements were reviewed against a framework of reference, grounded on the theoretical approaches of Adaptive Management and Transition Management. According to this framework, oceans complex systems management should: (1) consider the global oceans as a Social-Ecological System (SES); (2) aim to achieve or maintain their ecological resilience; and (3) implement iterative, learning-based management strategies, supported by science-based advice to policy and management. The results show that the present international legal framework for the global oceans does not require countries to adopt an adaptive, complex systems approach for global oceans ecological resilience. Instead, this study supports the perspective of a double fragmentation among international agreements. First, global agreements focus on issue-based objectives for determined human activities, ecological components or anthropogenic pressures. Second, regional agreements have a wider scope, but also a varying level of inclusion of ecological resilience considerations. There is the need to foster the inclusion of such an approach into existing and future international agreements and their implementation, including through soft-law, project-based initiatives at global and regional scales.     

Regional oceans governance mechanisms: A review

The development of regional governance for the protection of the environment, sustainable use of natural resources and conservation of its biodiversity is unquestionably a cornerstone of international environmental law and policy. With regard to marine and coastal issues, it has mainly been taking place through Regional Seas programmes, Regional Fishery Bodies and Large Marine Ecosystems mechanisms. Based on a similar geographical approach, however, these regional mechanisms raise concerns relating to their coordination and efficiency, and possibly overlap in what they aim to achieve. This paper provides a review of existing regional oceans governance mechanisms, assessing their individual and collective capacities to move towards ecosystem-based management, and highlighting options to make the regional landscape more coherent and effective.     

Opportunities for improving global marine conservation through multilateral treaties

The speed and scale of human impacts on marine species, such as climate change and exploitation for international markets, coupled with a poor regulatory regime and lack of enforcement, make it especially difficult to protect marine species beyond areas of national jurisdiction. Yet as the number of multilateral treaties continues to grow, the declining state of the world's oceans suggest that these treaties are largely failing to fulfill their missions and achieve meaningful protection. Here, an analysis of all multilateral treaties governing activities related to oceans is provided. A range of issues is examined including efficacy, geographic and taxonomic distribution, and other factors that facilitate or inhibit conservation. Since 1882, 103 countries have signed 265 multilateral treaties related to the management of marine resources. The majority of treaties (51%) deal with fisheries, 30% deal with pollution, 4% marine mammals and 15% deal with other topics. In terms of factors that may predict efficacy, 65% of marine treaties have secretariats, 50% have scientific mandates, and 13% have enforcement mechanisms; only 9% have all three. Given the context of the United Nations General Assembly's new commitment to manage human activity and its impact on common resources on the high seas, it is important to understand the strengths and weaknesses – individually and cumulatively - of existing binding marine agreements.     

Fishing for the future: An overview of challenges and opportunities

This paper surveys the current state and major trends in global fisheries; the environmental and social dimensions of fisheries; and explains how the international community has tried to meet the policy challenges associated with oceans and fisheries. The ocean and the freshwater ecosystems of the world make significant contributions to people's well-being via the many vital social and environmental services they provide (for example, food and nutrition, employment and incomes, carbon cycling and sequestration). The impact that the increase in fishing since the 1950s has had on wild fish stocks, and the significant increase in aquaculture production in the 20th century, have resulted in severe environmental impacts. This has significant effects on marine ecosystems and the health of oceans. The erosion of the resource undermines communities' long-term interests, including food security, employment, and income. Attempts by the global community to address challenges of sustainable production by improving the governance and management of fisheries resources range from national management of fisheries resources, to regional fisheries management organisations (RFMOs) for international fisheries stocks. These attempts have not always successfully met the challenge of balancing current and future use of fisheries.     

The 1995 Agreement on the conservation and management of straddling and highly migratory fish stocks: significance for the Law of the Sea Convention

On 4 August 1995, the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks adopted an Agreement for the conservation and management of straddling and highly migratory fish stocks. The mandate given by the General Assembly required that the results of the Conference be fully consistent with the UN Law of the Sea Convention. The purpose of this article is to examine the significance of the agreement for the law of the sea as embodied in the Convention. It shows that the agreement constitutes an important contribution to the Convention in that it facilitates the implementation of the Convention's provisions, strengthens the Convention's regime, and further develops general or framework rules of the Convention. The most significant contribution lies in the development of the law with respect to such issues as the precautionary approach to fisheries, compatibility of conservation and management measures adopted for areas under national jurisdiction and those for the adjacent high seas areas, the role of regional organizations or arrangements, duties of the flag State, enforcement against foreign vessels on the high seas, and port State jurisdiction.     

The EU's failed attempt to innovate with Regulation 1026/2012

Cooperation is one of the cornerstones of the international fisheries regime. It requires States to work together for the conservation and management of the fisheries resources. This applies even stronger with respect to shared fisheries resources. However, negotiating a cooperative solution is not always easily achievable for the parties involved and the international regime does not provide for consequences in such cases. Faced with such a problem and seeking a new solution to it, the EU adopted Regulation 1026/2012, equipping itself with a framework for adopting measures against third countries. This innovative solution challenges certain aspects of the international duty to cooperate and its negotiations aspect. The EU's innovation has so far failed because it lacks clear international support and basis in the international regime. This failure exemplifies one of the limits of unilateralism for generating developments in international fisheries law.     

北冰洋公海渔业权益争端的博弈分析——基于环北极国家视角

北冰洋公海尚处于冰封状态,但气候变暖、海冰加速融化使未来公海出现新渔场成为可能,其战略价值因而得到国际关注。当前,环北极国家已率先展开渔业权益争夺。为分析北冰洋公海渔业事务的国际走势,文章基于博弈论思想,构建非对称懦夫博弈模型及古诺模型来模拟和探究环北极国家在渔业利益争夺中的合作或冲突行为,研究得出:现阶段北冰洋公海渔业权益争端主要表现为渔业管理权的争夺,在该博弈中,非北冰洋沿岸国采取退让策略,沿岸国采取进攻策略,可以达到进化稳定均衡;一旦公海具备捕鱼条件,争端将演化为开发模式选择的博弈,此时,北冰洋沿岸国采取合作开发策略可以有效保护公海渔业资源,并实现国家的长期利益。     

Managing straddling stocks: the interplay of global and regional regimes

During the past decade, a number of rivalries over fish stocks straddling from coastal zones into the high seas turned into bitter disputes involving some of the world's foremost fishing nations. This article examines the interplay of global and regional efforts to strengthen the basis for management of high seas fisheries. The overall effect of the 1995 UN Fish Stocks Agreement for the effectiveness of regional management of straddling stocks is to support and globalize institutional features, especially regarding compliance control, that had so far been confined to the most advanced regional regimes. Such interplay between regimes can usefully be analyzed by distinguishing four causal pathways: (1) diffusion, in that one regime may influence the material contents of another; (2) political spillover, when interests or capabilities defined under one regime influence the operation of another; (3) normative interplay, when the rules upheld in one regime conflict or reinforce those established under another; and (4) operational interplay, referring to deliberate coordination of activities under separate regimes in order to avoid normative conflict or wasteful duplication. The article seeks to pinpoint the conditions under which these types of interplay are triggered.     

The sustainable use and conservation of biodiversity in ABNJ: What can be achieved using existing international agreements?

While the international community debates the desirability and possible content of a new global instrument for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, alternative approaches to improving the application and implementation of existing agreements for the protection of biodiversity appear to have fallen off the agenda. Recent practice under existing global and regional agreements suggests that, given political will, significantly greater protections could be achieved through the more effective implementation of individual sectoral agreements. However, while single-sector measures have the potential to make a valuable contribution, ultimately only multi-sectoral, integrated, cooperative management can ensure the conservation and long-term sustainable use of marine biodiversity in ABNJ. This requires establishing mechanisms for cooperation both intra and inter-sectorally, as well as between the sectoral and global and regional conservation agreements. This paper examines recent initiatives within various sectoral and conservation treaty regimes aimed at improving their application within ABNJ as well as some of the challenges to, and options for, further and better cooperation and coordination among and between existing regimes, and it identifies a range of possible mechanisms for achieving more effective implementation and coordination among them. Greater use of existing mechanisms represents a sensible approach to making the most of existing arrangements without in any way foreclosing the possibility of the adoption of a more comprehensive, integrated global agreement for the protection of marine biodiversity in ABNJ.     

Participation and fisheries management in Costa Rica: From theory to practice

Participatory fisheries management has been increasingly proposed as a useful management approach to address fisheries problems. However, the criteria regarding its applicability and measures of success still seem unclear. This study reviews the main concepts and theory behind two participatory resource-management approaches and compares them to the reality of fisheries management in Costa Rica. The analysis shows that while the implementation of a participatory approach in fisheries management should be encouraged, it is essential to keep in mind the possible limitations these approaches have. Furthermore, it seems important to improve institutional coordination and develop social, legal and economic policies that will allow the state, together with coastal communities, to contribute in an effective way to fisheries management.     

“联合国海洋科学促进可持续发展十年”:内容与评述

为了找到逆转海洋健康状况衰退的有效途径,联合国决定自2021年启动“联合国海洋科学促进可持续发展十年”(以下简称“海洋十年”)计划。2020年12月31日获得联合国大会审议通过的《“海洋十年”实施计划》以“构建我们所需要的科学、打造我们所希望的海洋”为愿景,描绘了“海洋十年”的预期成果、挑战与目标,以及实施、治理、协调、筹资、监督与审查等机制。“海洋十年”被联合国喻为“一生一次”的计划,是联合国发起的海洋大科学综合性顶层计划,它将通过激发和推动海洋科学领域的变革,在全球和国家层面构建更加强大的基于科技创新的治理体系来实现海洋的可持续发展。这将深刻改变人类对海洋的认知与行为模式,深刻影响乃至引导海洋秩序的演化过程,也会对海洋区域合作整体布局产生较大影响。建议我国以“海洋命运共同体”理念为指导,积极参与“海洋十年”,作为深度参与全球海洋治理的核心抓手,尽快组建“海洋十年”国家委员会,制定中国行动方案,与国际社会一道推进海洋的可持续发展。     

区域渔业管理组织对脆弱海洋生态系统的保护浅析

21世纪以来底拖网渔业的快速发展给脆弱海洋生态系统（VME）带来极大威胁,导致公海深海渔业发展不可持续以及海洋生物多样性降低。为更好地实现养护海洋渔业资源和保护海洋生物多样性的目标,同时为我国在保护VME以及管理公海深海渔业方面提供参考,文章分析八大区域渔业管理组织（RFMO）针对VME保护采取的系列措施及其保护VME的可行性,针对存在的问题提出对策建议,并对我国在RFMO中保护VME进行展望。研究结果表明：《公海深海渔业管理国际准则》在RFMO保护VME的实践中发挥重要的指导作用;RFMO采取的措施限制深海渔业活动,但为保护VME和养护海洋渔业资源提供重要基础和保障;未来RFMO应加强信息共享和技术合作,发展VME分布预测技术,同时在保护海洋生物多样性方面积极开展双边和多边合作;我国应进一步研究和实践基于生态系统的渔业管理方法,平衡保护与开发利用的关系,积极参与国际渔业管理和VME保护并促进合作,加强南极海域海洋保护区综合治理。     

A collective approach to Pacific islands fisheries management: Moving beyond regional agreements

The sustainable management and profitable development of the Pacific island tuna fisheries is the key ocean governance challenge for the Pacific islands region in the short and medium term. Resolving these challenges is fundamental to the long term future of the region and its ability to implement oceans governance across all resource and conservation concerns.