Governing the high seas

The United Nations Convention on the Law of the Sea (UNCLOS)1 – 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 geoengineering 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.

Some of these concerns were anticipated by Arvid Pardo, the Maltese diplomat known colloquially as the ‘father of the Law of the Sea’. He argued2 that ‘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.

“In ocean space, however, the time has come to recognise, as a basic principle of international law, the overriding common interest of mankind in the preservation of the quality of the marine environment and in the rational and equitable development of its resources lying beyond national jurisdiction. This does not imply disregard of the interests of individual states, but rather recognition of the fact that in the long term these interests can be protected only within the framework of a stable international regime of close cooperation between States.”

A Pardo, The Common Heritage: Selected Papers on Oceans and World Order, 1967–1974 (Valletta, 1975), 176

Arvid Pardo, the ‘father of the Law of the Sea’