The IMLI Treatise on Global Ocean Governance: Volume II: UN Specialized Agencies and Global Ocean Governance. 9780198823964, 0198823967

Table of contents :
Cover
The IMLI Treatise on Global Ocean Governance
Copyright
Dedication
Table of Contents
Table of Cases
Table of International Treaties
Table of Legislation
List of Abbreviations
Volume Academic Coordinator Observations
List of Contributors
I. MARINE LIVING RESOURCES AND MARINE BIODIVERSITY
1. The FAO and Ocean Governance
1.1 Introduction
1.2 Basics about the FAO
1.2.1 Membership
1.2.2 Structure
1.3 Collecting, Analysing, and Disseminating Information and Statistics to Its Members
1.4 Forum for Developing International Instruments, Norms, and Standards
1.4.1 The normative influence of the FAO
1.4.2 FAO legal and policy instruments
1.5 Summing Up
2. The Work of the UNESCO-​IOC in Respect of Global Ocean Governance
2.1 Introduction
2.1.1 Ocean governance
2.1.2 The need for ocean knowledge
2.2 Existing Legal Commitments
2.2.1 UNCLOS
2.2.2 Marine conventions
2.2.3 Soft law
2.3 The Inter-​governmental Oceanographic Commission
2.3.1 Purpose and organizational structure
2.3.2 International collaboration
2.3.3 The ocean governance-​related activities of the IOC
2.4 Enhancement of Ocean Governance
2.4.1 UN activities
2.4.2 Integrated coastal management
2.4.3 Marine spatial planning
2.4.4 Large marine ecosystems
2.4.5 Regional partnerships
2.5 Capacity Development
2.5.1 The need for assistance
2.5.2 Strategic approach
2.5.3 Specific activities
2.5.4 Regional focus
2.5.5 Transfer of marine technology
2.6 Conclusions
3. The Work of the International Civil Aviation Organization in Respect of Global Ocean Governance
3.1 A Brief Introduction
3.2 ICAO and Global Ocean Governance
3.3 The Three Pillars of Interaction
3.3.1 Aviation
3.3.2 Safety/​security
3.3.3 Environment
3.4 Outlook
3.4.1 Knowledge building for environmental protection and management
3.4.2 Civil–​military cooperation in air and sea
3.4.3 Preparedness for emerging/​upcoming technological challenges
3.5 General Comments and Conclusions
I I. COMMERCIAL ASPECTS OF THE MARINE ENVIRONMENT
4. The UNDP and Ocean Governance
4.1 Introduction
4.2 History of UNDP and Basic Approach to Governance
4.3 Current and Former Activities
4.3.1 Introduction: from jurisdiction and sector-specific approaches to large marine ecosystems
4.3.2 Developing principles, objectives, and regulatory frameworks: following a regime-​building approach in the development of oceans governance regimes
4.4 Conclusions
5. The International Labour Organization and Ocean Governance
5.1 Introduction
5.2 The International Protection of Maritime Labour
5.3 The Maritime Labour Convention 2006: A New Social Charter for Global Seafaring
5.3.1 The winds of change: ILO’s Joint Maritime Commission and the Geneva Accord
5.3.2 A new blueprint for maritime standard-​setting
5.3.3 The Convention’s format: repackaging hard and soft law
5.3.4 The Convention’s scope: closing the coverage gaps
5.3.5 Steering the course: any room for manoeuvre?
5.3.6 The Convention’s revision process: anticipating future needs
5.3.7 Compliance and enforcement: putting teeth into labour standards
5.3.8 Not falling on deaf ears: new seafarers’ complaint options
5.3.9 The longest ILO instrument ever: navigating through the MLC 2006 Regulations and the Code
5.4 Promoting Decent Work for Fishers and Revisiting Seamen’s Books
5.4.1 The Work in Fishing Convention: throwing the net wide
5.4.2 New biometric standards for seafarers’ identity documents
5.5 Concluding Remarks
6. The Work of the International Monetary Fund and Its Possible Relevance to Global Ocean Governance
6.1 Introduction
6.2 From Bretton Woods to the Late 1970s and Beyond: A Brief History
6.3 The Institutional Profile: Adapting to the Changing World Order
6.3.1 Membership
6.3.2 Organs
6.3.3 Functions
6.4 The Role of the IMF in Global Ocean Governance
6.5 Conclusion
7. INMARSAT and the Modern International Mobile Satellite Organization
7.1 Introduction
7.2 Technical Background
7.3 History
7.4 Maritime Communications
7.5 INMARSAT
7.6 INMARSAT and the New International Mobile Satellite Organization
7.7 The International Mobile Satellite Organization 2016
8. UN Environment Regional Seas Programme
8.1 Introduction
8.2 Mandate of UN Environment on Oceans and Seas
8.3 UN Environment Regional Seas Programme
8.3.1 Overview
8.3.2 Regional seas strategic directions
8.3.3 Action plans and conventions
8.3.4 Institutional arrangements
8.4 Regional Ocean Governance
8.4.1 Overview
8.4.2 Regional seas programmes and regional fisheries bodies
8.4.3 Regional seas programmes and large marine ecosystems
8.4.4 Regional seas and MEAs
8.5 Regional Ocean Policies and Strategies
8.5.1 Overview
8.5.2 African ocean governance strategy
8.5.3 Regional initiative for ecosystem-​based management in the Red Sea and Gulf of Aden
8.5.4 Regional ecosystem-​based management strategy for the ROPME Sea Area
8.5.5 Integrated regional ocean policy for the South-​East Pacific
8.5.6 Partnership for regional ocean governance
8.6 Regional Seas and Areas Beyond National Jurisdictions
8.6.1 Overview
8.6.2 ABNJ and regional seas programmes
8.6.3 Other UN Environment work on ABNJs
8.7 Conclusions
9. The UN World Tourism Organization and Global Ocean Governance
9.1 An Introduction to UNWTO: General Overview
9.1.1 Introduction
9.1.2 Aims
9.1.3 Structure and governance
9.1.4 Membership
9.2 UNWTO and Sea-​related Tourism
9.2.1 Tourism and sustainable development goals
9.2.2 Ocean governance and sea-​related tourism
9.2.3 Sustainable development of tourism
10. The Work of WIPO and Its Possible Relevance for Global Ocean Governance
10.1 What is WIPO?
10.1.1 Legal foundations and mandate
10.1.2 Ocean-​related matters and WIPO: an uneasy fit?
10.2 Global Ocean Governance and the Work of WIPO: Possible Inter-​relationships
10.2.1 Normative work
10.2.2 Capacity building and other practical activities and tools
10.3 WIPO’s Work Relevant to the 2030 Agenda for Sustainable Development and the Sustainable Development Goals
10.4 Conclusions: The Future Role of WIPO in the Context of the Evolving Sustainable Ocean Governance
11. The Contribution of UNODC to Ocean Governance
11.1 Institutional Development and Profile of UNODC
11.1.1 The establishment of UNODC
11.1.2 Governance and budget
11.2 UNODC and the 2030 Agenda for Sustainable Development
11.3 UNODC and Ocean Governance
11.3.1 Ocean governance and effective prevention and repression of crime at sea
11.3.2 UNTOC, other legal bases for UNODC’s action, and UNCLOS: a coherent framework
11.4 UNODC’s Contribution to Ocean Governance
11.4.1 The Container Control Programme
11.4.2 The Global Maritime Crime Programme
11.5 Conclusions
12. The Contribution of UNHCR to Ocean Governance
12.1 The UNHCR: An Introduction
12.1.1 Its creation and difficult beginnings
12.1.2 The progressive expansion of its mandate
12.1.3 The role of the UNHCR Executive Committee
12.2 The UNHCR and the Handling of Irregular Migration by Sea Crises
12.2.1 The Haitian crisis
12.2.2 The Indochinese crisis
12.3 The UNHCR and the Development of the Search and Rescue Legal Framework
12.3.1 The international legal framework of search and rescue services
12.3.2 Inter-​institutional dialogue and normative developments
12.4 The Contribution of UNHCR to Ocean Governance
I I I. HUMAN HEALTH AND HUMAN RIGHTS
13. Healthy Oceans for Healthy Lives: The Contribution of the World Health Organization to Global Ocean Governance
13.1 Oceans and Human Health
13.1.1 Benefits to human health provided by the oceans
13.1.2 Risks for public health associated with anthropogenic and natural hazards
13.2 The World Health Organization
13.2.1 Institutional profile and position in the United Nations system
13.2.2 Governing texts and governing bodies
13.2.3 Competence and activity in the field of environmental health
13.3 The Contribution of the WHO to Global Ocean Governance
13.3.1 General assessment
13.3.2 Specific areas of intervention
13.4 Commitment to Ocean-​related Sustainable Development Goals
13.5 The Potential for a Strengthened and More Visible Role of the WHO in Ocean Governance
14. Global Ocean Governance: The Work of UNCTAD
14.1 Introduction and Background
14.2 UNCTAD’s Role in Ocean Governance: International Maritime Transport Law and Policy
14.2.1 International conventions, model rules, and standards adopted under the auspices of UNCTAD
14.2.2 UNCTAD Policy Research and Advice
14.2.3 Outlook
14.3.1 UNCTAD policy research pillar
14.3.2 UNCTAD expert dialogue pillar
14.3.3 Consensus building in addressing harmful incentives
14.3.4 Conclusions and the New UNCTAD XIV Mandate
15. Our Oceans, our Livelihoods: The World Bank and Oceans Governance
15.1 The World Bank
15.1.1 Institutional overview and structure
15.1.2 Position in the United Nations system
15.1.3 Mission of the World Bank
15.2 Our Oceans: Our Earth’s Valuable Natural Assets, Ecosystems, and Economies
15.2.1 Coastal states: duties and obligations, and coastal economies
15.2.2 Food security
15.2.3 Food security and marine biodiversity
15.2.4 Climate change
15.2.5 Challenges
15.2.6 The need to promote marine and coastal area asset management: understanding ecosystems
15.3 The World Bank and Its Strategy towards Healthier Oceans
15.3.1 ‘Blue growth’: sustainable economic expansion
15.3.2 Partners
15.3.3 Output and projects
15.3.4 General assessment
15.4 Conclusion
16. Ethics of International Maritime Law and Ocean Governance
16.1 Introduction
16.2 Ethical Flavour of International Law
16.3 Law of the Sea
16.4 Maritime Law
16.5 Ocean Governance
16.6 Conclusion: The Crucial Importance of Upbringing and Education
17. Intergenerational Equity, Ocean Governance, and the United Nations
17.1 Introduction
17.2 The Concept of Intergenerational Equity within the Context of Sustainable Development and the Protection of the Environment
17.3 International Conventions and Soft Law Instruments Including the Principle of Intergenerational Equity
17.4 The 1982 United Nations Convention on the Law of the Sea and Intergenerational Equity
17.5 International Case Law and Future Generations
17.6 National Case Law and Future Generations
17.7 Constitutional and Institutional Protection of the Rights of Future Generations
17.8 The United Nations and Future Generations
17.9 Conclusions
Index 377

Citation preview

T H E I M L I T R E AT I SE ON  GL OBA L O C E A N G OV E R NA NC E

The IMLI Treatise on Global Ocean Governance Volume II: UN Specialized Agencies and Global Ocean Governance Edited by General Academic Coordinator and Editor

DAV I D JO SE PH   AT TA R D Academic Coordinator

M A L G O SI A F I T Z M AU R IC E Editor

A L E X A N DRO S X M   N TOVA S

1

1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The Several Contributors 2018 The moral rights of the authors‌have been asserted First Edition published in 2018 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2018936200 ISBN 978–​0 –​19–​882396–​4 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

This Treatise is dedicated to Dr Yohei Sasakawa (Chairman of The Nippon Foundation) whose long-​standing commitment and efforts to ensure the creation of a Sustainable Global Ocean Governance regime will benefit present and future generations.

Foreword Harry N Scheiber* The framework that the 1982 United Nations Convention on the Law of the Sea (UNCLOS) created for the further development of general norms, specific rules, and procedures in the ordering of ocean activities has survived the test of time with remarkable strength and durability. It seems impossible to imagine that even the most prescient observers could have foreseen, whether in 1982 or twelve years later, when the long-​debated compromise on the seabed mining issue was achieved and UNCLOS finally entered into force, the degree to which the further development of ocean law and its implementing structures and practices would have reached the scope, complexity, and impact on day-​to-​day policy as are surveyed and analysed in the chapters written for this study of global ocean governance. At this critical time in the history of international law and policy for the oceans, the authors of the individual chapters and the study’s Coordinators have produced an overview of unique compass and exceptional critical depth. The brief commentary that follows is offered in the way of general reflections on the current state of the global discourse that has moved dramatically, in recent years, to a focus on the interrelated problems of environmental sustainability, economic development, social justice and human rights, and security. This set of interrelationships, on the one hand, is reflected in the proliferation of institutions and legal structures involved in ocean governance, and, on the other hand, is presenting those institutions and structures with the extraordinary range of urgent new challenges that the chapters in the Study have sought to address. One aspect of the institutional landscape depicted here is the significant variation in the degree of coherence and the resultant effectiveness that has characterized the histories of individual institutions and agreements. Special attention in this regard is warranted, for example, to the achievements of the Food and Agriculture Organization (FAO) and the International Maritime Organization (IMO), organized previously and outside the initial formal structure of UNCLOS but vested in effect by UNCLOS with expanded areas of authority to act. In their separate ways they have undertaken vitally important roles: IMO did so with the gradual and then quickening expansion in the scope and force of the regulatory agreements under its aegis, responding to the new challenges of marine pollution, navigation, and safety—​and it is now beginning to confront the overarching challenge of climate change in its several areas of impact. In a different mode, FAO, with an equally coherent, expanding agenda of legal and policy concerns, has been the base of entrepreneurial imagination, practical policy and legal design, and diplomatic success with major impact, albeit as yet still incomplete, as exhibited most dramatically in the Straddling Stocks Agreement of 1995. The *  The Stefan Riesenfeld Chair Professor of Law and History, and Director of the Law of the Sea Institute, Emeritus, University of California, Berkeley.

viii Foreword

Agreement has established a regulatory model for regional fishery management organizations that incorporates norms that significantly advance the application of the ecosystem management concept, the precautionary approach, and a refined scientific approach for the measurement of sustainability levels of the stocks. It must be added, and quickly so, that these two organizations, whether in regard to specific programme initiatives or more broadly in their respective roles in advancing a global legal and policy response to sustainability issues (notably as set out most recently in the Agenda 2030 goal for ocean management and governance) are singled out in this commentary only as exemplary, rather than as exclusive, cases of institutions that have met high expectations. At the other end of the spectrum, however, in some of the individual contributions there is striking evidence of agencies and agreements that fall short of expectations to varying degrees. The successful organizations and instruments are those for which there is congruity of mission with their authority or areal jurisdictions, adequacy of funding and administrative capacity, and the willingness to actually cooperate on the part of the states with formal commitments to participate. Some of the studies reveal an unfortunate vagueness in the explanation of how a specific agency or programme is functionally involved in, let alone in fact contributing positively to, the advancement of norms, functional programmes, or instruments of agreement that are essential to successful implementation of the larger enterprises of sustainability and effective global governance. Both in the contributions by the Coordinators and in numerous individual studies, emphasis is prominently given to what is termed an indispensable improvement of ‘coordination’. The term itself, along with such related concepts and rhetorical phrases as ‘synergies’, ‘linkages’, ‘harmonization’, and ‘collaboration’, is found in a host of contexts scattered throughout nearly the full range of chapters—​either to prescribe the innovations needed to achieve the goals of better governance, or else to highlight existing schemes of implementation in which an illustrative advancement of the reformist goals for governance are already being achieved. Coordination and synergies in scientific investigations of marine phenomena, in agency programme design and implementation, and in the overall conceptualization of ‘global’ governance, are objectives that gain special force because of the extraordinary level of complexity that is inherently involved in the management of ecosystems and also in the related concern for protection of biodiversity as an element in an ecosystem. Because both biological and environmental dynamics are in play, both scientific analysis and policy design—​and also, by extension, both the content of relevant law and the structures of governance—​are challenged by what can fairly be described as a potentially ever-​ ramifying body of ecological data and interrelationships. One of the many invaluable contributions of this Study is that it cites the numerous specific ways in which these aspects of current-​day problems are being recognized and dealt with in the large enterprise of pursuing the ambitious goals required for an improved ocean governance. Underlying the major issues in ocean law, both as mentioned in the foregoing discussion and with regard to the overarching challenge of climate change, are the leading features of modern global economic and social change. One must mention, first, the extraordinary range and intensity, in an accelerating process, of the impacts generated by scientific and technological innovation. These impacts are evident throughout

Foreword

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the chapters in this Study as they address the specific challenges of climate, genetic resource uses, biodiversity, or the like, relating both to law and to institutions and policy implementation. Also requiring mention as another underlying element affecting ocean sustainability strategies—​a lthough because of its political sensitivity it is too seldom explicitly addressed in scientific discussion of ocean management issues—​is the pressure on resources on the ‘demand side’, that is, the pressure from size and trajectory of the surge in global human population. On the ‘supply side’ the target level for resource sustainability is perforce on an ever-​rising vector, driven not only by the population’s increase but also by the pervasive quest to achieve greater equality—​a quest impelled by moral concerns and more generally by rising expectations of material welfare. These factors intensify the urgency with which resource depletions and the threats posed by climate change must be confronted. In their interesting analyses of these ‘mega-​level’ challenges and also the many specific problems of institutional and legal innovation confronting ocean governance, the chapters in this Study also provide intriguing insights with regard to legal norms and their diffusion. Well recognized in the literature on ocean law development is the articulation in written agreements of basic norms, often very open-​ended yet well respected (eg, ‘the duty to cooperate’ as found in the UNCLOS text). More subtle is the process—​described in this Study with regard, for example, to the way in which references in ITLOS (International Tribunal for the Law of the Sea) opinions regarding the precautionary approach have had a more general influence—​by which a doctrine, without being written initially as universal treaty law, can gain legitimacy that potentially impels its emergence as a widely accepted norm of customary law. It is imperative to say in closing that, in this last mentioned respect as with regard more generally to the entire range of ocean governance issues and the problematics of legal innovation, the authors and Coordinators of this Study place us greatly in their debt. The magnitude of the Study’s design is itself daunting, but it is more than matched by the impressiveness of learning and the richness of insights that the Study contributes to global discourse on the oceans.

Preface The 1982 United Nations Convention on the Law of the Sea (UNCLOS) remains the cornerstone of global ocean governance. It does not, however, include effective provisions or mechanisms to ensure that all problems of ocean space, which are closely interrelated, are ‘considered as a whole’. Consequently, under the aegis of the United Nations (UN) system and other international organizations, many supplementary legal instruments concerned with ocean governance issues (such as environmental protection, maritime transport, fisheries, climate change, pollution, protection of species and habitats, and transnational organized crime) have been developed. This fragmented approach remains a challenge to achieving sustainable, holistic, and effective ocean governance. Currently, apart from the annual debate in the United Nations General Assembly on ocean affairs and the law of the sea, there is a lack of comprehensive interdisciplinary reflection on how to address the global ocean governance challenges. A new paradigm that will adopt on a regular basis an integrated and cross-​sectoral approach at all levels of ocean governance is required in order to realize many of the goals set out in UNCLOS, and to achieve a more sustainable governance regime for oceans, as envisioned by the Sustainable Development Goals of the 2030 Agenda for Sustainable Development. The International Maritime Law Institute (IMLI) Treatise on Global Ocean Governance started as a comprehensive study commissioned under the aegis of the IMLI-​Nippon Foundation Collaboration on ‘A Comprehensive Study on Effective and Sustainable Global Ocean Governance Project’, following the 2015 address of Dr Yohei Sasakawa (Chairman of The Nippon Foundation) to the International Maritime Organization (IMO) on the state of the world’s oceans. The project was construed to assess the current state of the international regime regulating the use of the oceans and make proposals. For this purpose, fifty-​eight experts were chosen to report on their area of expertise. Their reports were submitted in September 2017. After a comprehensive evaluation which demonstrated their significant relevance to the current debates on global ocean governance, I felt that such authoritative work could further attain its intended global objective if published. The IMLI Treatise on Global Ocean Governance covers the whole spectrum of global ocean governance in three volumes. Volumes I and III cover the role of the United Nations and the International Maritime Organization in global ocean governance respectively. This volume, entitled ‘The UN Specialized Agencies and Ocean Governance’, focuses on the UN Specialised Agencies and addresses their contribution to the sustainable governance of the oceans. It also studies a number of affiliated UN Programmes with considerable input in matters highly relevant to the process of ocean governance. In examining the contribution of specialized institutions towards the development of an effective ocean governance regime, this Volume explores how the instruments of these UN Specialized Agencies and Programmes can effectively promote the overriding principles and objectives relevant to a sustainable global ocean governance system.

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I wish to conclude by thanking the many persons, who, in one way or another, have contributed to our endeavour. I would like to express my appreciation to Mr Kitack Lim (Secretary-​General, IMO) for his unwavering support to the activities of the Institute. I am grateful to Mr Mitsuyuki Unno of The Nippon Foundation for his continuous support to IMLI. Further, I wish to thank Professor Malgosia Fitzmaurice and Dr Alexandros XM Ntovas, the Volume Academic Coordinator and Editor respectively, for their relentless work in putting the contributions in this volume together. The admirable work of the distinguished contributors is recognized with gratitude. I  also wish to express my appreciation to members of the Institute academic staff (Professor Norman Martinez, Ms Elda Kazara-​Belja, and Dr Buba Bojang), and the administrative staff (Ms Josephine Aquilina, Mr Donald Spiteri, Mr Jacy Aguilar and Ms Claudette Camilleri) for their respective assistance. I would also like to record my special thanks to the staff of Oxford University Press, in particular, Mr John Louth, Ms Merel Alstein, and Ms Natasha Flemming and their editorial team for their professional support throughout the production process. I am confident that this authoritative Treatise will inspire further fruitful discourse and tangible action on the establishment of an effective and sustainable global ocean governance. Our oceans, the womb of life, need us for their protection as much as we need them for our survival and that of future generations. David Joseph Attard General Academic Coordinator and Editor April 2018

Acknowledgements The Director of IMLI would like to acknowledge the invaluable contribution of The Nippon Foundation to IMLI and this Treatise through the provision of funding under the project ‘Comprehensive Study on Effective and Sustainable Global Ocean Governance’.

IMO International Maritime Law Institute The IMO International Maritime Law Institute (IMLI) was established in 1988, through an Agreement between the Government of Malta and the International Maritime Organization (IMO). The Institute is a widely-​recognized centre of excellence for the training of specialists in the field of international maritime law, and in the techniques of drafting maritime legislation. One of the first challenges of the Institute’s founding fathers was the formulation of an academic syllabus for the teaching of maritime law on a comparative and international basis. To address this issue, the then IMO Secretary-​General CP Srivastava set up a committee of eminent lawyers hailing from various legal systems of the world. The members of this Committee, which I was asked to coordinate, consisted of the late Professor Francesco Berlingieri (Italy, Former President of the Comite Maritime International); Judge Thomas Mensah (Ghana, Former President of the International Tribunal for the Law of the Sea); and Mr Louis Mbanefo (Nigeria, Former President of the Nigerian Maritime Law Association). The Committee produced a unique syllabus of studies, which covered the whole spectrum of international maritime law and took into account the need to train legal officials (mainly from developing States). This syllabus was adopted by the IMLI Governing Board in 1989 and has constantly been updated by IMLI’s Academic Committee to reflect the latest developments in the field, particularly in the work of IMO. An innovative feature of the Committee’s proposal was the inclusion (in addition to usual examinations and dissertations) of a requirement that students must prepare draft legislation which incorporates IMO rules into their domestic law. This requirement represents IMLI’s raison d’être. It is well known that, with one minor exception, IMO has no effective powers to enforce its over fifty conventions and literally hundreds of prescriptions. It is therefore up to its Member States to implement and enforce its regimes. Lack of maritime legal expertise has often prevented developing States from participating in this process. IMLI offers unique taught and research training programmes, designed to provide governments with the necessary expertise through the fostering of excellence in three important areas: (1) The development of expertise to advise on international maritime law, and to develop national maritime legislation; (2) The development of legislative drafting skills to ensure that States have the necessary expertise to incorporate international rules into domestic legislation; and (3) The preparation of legal advisers to participate in, and contribute to, the deliberations of international maritime fora. Between 1989 and 2017, IMLI has successfully trained over 800 maritime professionals from 137 States worldwide. These professionals, who generally occupy key government positions, continue to meaningfully contribute to the sustainable development

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IMO International Maritime Law Institute

of their nation’s maritime infrastructure. IMLI graduates are also active in the deliberations of international organizations, such as the IMO. The Institute’s work has been recognized by the United Nations General Assembly through its numerous resolutions on ‘Oceans and the law of the sea’. Resolution A/​Res/​72/​73 of 5 December 2017 recognized: . . .  the importance of the work of the Malta-​based International Maritime Law Institute of the International Maritime Organization, as a centre of education and training of specialists in maritime law, including government legal advisers and other high-​level officials, mainly from developing States, confirms its effective capacity-​ building role in the field of international maritime law, shipping law and marine environmental law, and urges States, intergovernmental organizations and financial institutions to make voluntary financial contributions to the budget of the Institute which runs annually.

The Nippon Foundation has been a dependable supporter of the Institute’s capacity building efforts. Since 2003 it has funded the ‘Human Resources Development Project for the Advancement of a More Effective Global Legal Order for the Oceans’, which is now in its fifteenth year. The Project, so far, has directly contributed to the training of one hundred and 153 Nippon Scholars from 66 States. IMLI is a small institution with a global mission to provide governments with the expertise necessary to participate in the codification and progressive development of international maritime law. Over the past twenty-​nine years, it has grown into a centre of excellence which through its graduates, is contributing to the efforts to ensure the better governance of our oceans. This success augurs well for more years of service to the rule of international maritime law. Professor David Joseph Attard Director IMO-​International Maritime Law Institute Malta April 2018

Table of Contents Table of Cases Table of International Treaties Table of Legislation List of Abbreviations Volume Academic Coordinator Observations Malgosia Fitzmaurice List of Contributors

xxiii xxv xxxv xxxvii xliii xlvii

I . M A R I N E L I V I NG R E S OU RC E S A N D M A R I N E BIODI V E R S I T Y 1. The FAO and Ocean Governance Tore Henriksen 1.1 Introduction 1.2 Basics about the FAO



1.2.1 Membership 1.2.2 Structure

3 3 4 5 5

1.3 Collecting, Analysing, and Disseminating Information and Statistics to Its Members 6 1.4 Forum for Developing International Instruments, Norms, and Standards 8 1.4.1 The normative influence of the FAO 1.4.2 FAO legal and policy instruments

11 14

1.5 Summing Up 2. The Work of the UNESCO-​IOC in Respect of Global Ocean Governance Peter Ehlers 2.1 Introduction

27 28



2.2 Existing Legal Commitments

29



2.3 The Inter-​governmental Oceanographic Commission

31



2.4 Enhancement of Ocean Governance

52



2.5 Capacity Development

55





2.1.1 Ocean governance 2.1.2 The need for ocean knowledge

2.2.1 UNCLOS 2.2.2 Marine conventions 2.2.3 Soft law

2.3.1 Purpose and organizational structure 2.3.2 International collaboration 2.3.3 The ocean governance-​related activities of the IOC

2.4.1 2.4.2 2.4.3 2.4.4 2.4.5

UN activities Integrated coastal management Marine spatial planning Large marine ecosystems Regional partnerships

2.5.1 The need for assistance 2.5.2 Strategic approach 2.5.3 Specific activities

28 28 28

29 30 30

32 35 38

52 53 54 54 55 55 56 57

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2.5.4 Regional focus 2.5.5 Transfer of marine technology

2.6 Conclusions 3. The Work of the International Civil Aviation Organization in Respect of Global Ocean Governance Gerasimos Rodotheatos 3.1 A Brief Introduction 3.2 ICAO and Global Ocean Governance 3.3 The Three Pillars of Interaction

3.3.1 Aviation 3.3.2 Safety/​security 3.3.3 Environment

57 58

59 61 61 62 65 66 68 72



3.4 Outlook

75



3.5 General Comments and Conclusions

77



3.4.1 Knowledge building for environmental protection and management 3.4.2 Civil–​military cooperation in air and sea 3.4.3 Preparedness for emerging/​upcoming technological challenges

75 76 77

I I . C OM M E RC I A L A S PE C T S OF T H E M A R I N E E N V I RON M E N T 4. The UNDP and Ocean Governance Elizabeth A Kirk 4.1 Introduction 4.2 History of UNDP and Basic Approach to Governance 4.3 Current and Former Activities

4.3.1 Introduction: from jurisdiction and sector-specific approaches to large marine ecosystems 4.3.2 Developing principles, objectives, and regulatory frameworks: following a regime-​building approach in the development of oceans governance regimes

4.4 Conclusions 5. The International Labour Organization and Ocean Governance George P Politakis 5.1 Introduction 5.2 Setting out for Ithaca: The International Protection of Maritime Labour 5.3 The Maritime Labour Convention 2006: A New Social Charter for Global Seafaring

5.3.1 The winds of change: ILO’s Joint Maritime Commission and the Geneva Accord 5.3.2 A new blueprint for maritime standard-​setting 5.3.3 The Convention’s format: repackaging hard and soft law 5.3.4 The Convention’s scope: closing the coverage gaps 5.3.5 Steering the course: any room for manoeuvre? 5.3.6 The Convention’s revision process: anticipating future needs 5.3.7 Compliance and enforcement: putting teeth into labour standards 5.3.8 Not falling on deaf ears: new seafarers’ complaint options 5.3.9 The longest ILO instrument ever: navigating through the MLC 2006 Regulations and the Code

81 81 82 87 87 89

99 102 102 103 105 105 106 107 108 109 109 110 112 112





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5.4 Promoting Decent Work for Fishers and Revisiting Seamen’s Books

116

5.5 Concluding Remarks 6. The Work of the International Monetary Fund and Its Possible Relevance to Global Ocean Governance Emmanuella Doussis 6.1 Introduction 6.2 From Bretton Woods to the Late 1970s and Beyond: A Brief History 6.3 The Institutional Profile: Adapting to the Changing World Order

119





5.4.1 The Work in Fishing Convention: throwing the net wide 5.4.2 New biometric standards for seafarers’ identity documents

6.3.1 Membership 6.3.2 Organs 6.3.3 Functions

116 118

121 121 121 124 124 125 127

6.4 The Role of the IMF in Global Ocean Governance 6.5 Conclusion 7. INMARSAT and the Modern International Mobile Satellite Organization Francis Lyall and Paul B Larsen 7.1 Introduction 7.2 Technical Background 7.3 History 7.4 Maritime Communications 7.5 INMARSAT 7.6 INMARSAT and the New International Mobile Satellite Organization 7.7 The International Mobile Satellite Organization 2016 8. UN Environment Regional Seas Programme Kanako Hasegawa and Elizabeth Mrema 8.1 Introduction 8.2 Mandate of UN Environment on Oceans and Seas 8.3 UN Environment Regional Seas Programme

132 135 136



8.4 Regional Ocean Governance

165



8.5 Regional Ocean Policies and Strategies

171









8.3.1 Overview 8.3.2 Regional seas strategic directions 8.3.3 Action plans and conventions 8.3.4 Institutional arrangements

8.4.1 Overview 8.4.2 Regional seas programmes and regional fisheries bodies 8.4.3 Regional seas programmes and large marine ecosystems 8.4.4 Regional seas and MEAs 8.5.1 Overview 8.5.2 African ocean governance strategy 8.5.3 Regional initiative for ecosystem-​based management in the Red Sea and Gulf of Aden 8.5.4 Regional ecosystem-​based management strategy for the ROPME Sea Area 8.5.5 Integrated regional ocean policy for the South-​East Pacific 8.5.6 Partnership for regional ocean governance

8.6 Regional Seas and Areas Beyond National Jurisdictions 8.6.1 Overview 8.6.2 ABNJ and regional seas programmes

136 136 137 138 139 143 147 153 153 154 157 157 158 161 162 165 166 167 169 171 171

172 173 174 175

175

175 176

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8.6.3 Other UN Environment work on ABNJs



9.1.1 Introduction 9.1.2 Aims 9.1.3 Structure and governance 9.1.4 Membership

178

8.7 Conclusions 9. The UN World Tourism Organization and Global Ocean Governance The UNWTO Legal Office 9.1 An Introduction to UNWTO: General Overview

179 195



198

9.2 UNWTO and Sea-​related Tourism



9.2.1 Tourism and sustainable development goals 9.2.2 Ocean governance and sea-​related tourism 9.2.3 Sustainable development of tourism

10. The Work of WIPO and Its Possible Relevance for Global Ocean Governance Claudio Chiarolla 10.1  What is WIPO?

10.1.1  Legal foundations and mandate 10.1.2  Ocean-​related matters and WIPO: an uneasy fit?



10.2 Global Ocean Governance and the Work of WIPO: Possible Inter-​ relationships



10.2.1 Normative work 10.2.2 Capacity building and other practical activities and tools



195 195 195 196 198

198 199 202

209 209

212 214

214 214 222

10.3 WIPO’s Work Relevant to the 2030 Agenda for Sustainable Development and the Sustainable Development Goals 10.4 Conclusions: The Future Role of WIPO in the Context of the Evolving Sustainable Ocean Governance 11. The Contribution of UNODC to Ocean Governance Serena Forlati 11.1  Institutional Development and Profile of UNODC

225 227



230 232



11.1.1  The establishment of UNODC 11.1.2  Governance and budget

11.2 UNODC and the 2030 Agenda for Sustainable Development 11.3 UNODC and Ocean Governance



11.3.1 Ocean governance and effective prevention and repression of crime at sea 11.3.2 UNTOC, other legal bases for UNODC’s action, and UNCLOS: a coherent framework







11.4  UNODC’s Contribution to Ocean Governance 11.4.1 The Container Control Programme 11.4.2 The Global Maritime Crime Programme

11.5 Conclusions 12. The Contribution of UNHCR to Ocean Governance Seline Trevisanut 12.1 The UNHCR: An Introduction

12.1.1 Its creation and difficult beginnings 12.1.2 The progressive expansion of its mandate 12.1.3 The role of the UNHCR Executive Committee

223

227

227 229

232 234

238

239 240

242 243 243 243 245 246



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12.2 The UNHCR and the Handling of Irregular Migration by Sea Crises

248



12.3 The UNHCR and the Development of the Search and Rescue Legal Framework

252

12.4 The Contribution of UNHCR to Ocean Governance

257



12.2.1  The Haitian crisis 12.2.2  The Indochinese crisis



12.3.1 The international legal framework of search and rescue services 12.3.2 Inter-​institutional dialogue and normative developments



248 249 252 254

I I I . H U M A N H E A LT H A N D H U M A N   R IG H T S 13. Healthy Oceans for Healthy Lives: The Contribution of the World Health Organization to Global Ocean Governance Stefania Negri 13.1 Oceans and Human Health

13.1.1 Benefits to human health provided by the oceans 13.1.2 Risks for public health associated with anthropogenic and natural hazards

261 261

262

265



13.2 The World Health Organization

268



13.3 The Contribution of the WHO to Global Ocean Governance

273

13.4 Commitment to Ocean-​related Sustainable Development Goals 13.5 The Potential for a Strengthened and More Visible Role of the WHO in Ocean Governance 14. Global Ocean Governance: The Work of UNCTAD Regina Asariotis, Graham Mott, Anila Premti, and David Vivas Eugui 14.1 Introduction and Background 14.2 UNCTAD’s Role in Ocean Governance: International Maritime Transport Law and Policy

281



13.2.1 Institutional profile and position in the United Nations system 13.2.2 Governing texts and governing bodies 13.2.3 Competence and activity in the field of environmental health



13.3.1 General assessment 13.3.2 Specific areas of intervention









14.2.1 International conventions, model rules, and standards adopted under the auspices of UNCTAD 14.2.2 UNCTAD Policy Research and Advice 14.2.3 Outlook

14.3 UNCTAD’s Role in the Governance of Trade in Fish 14.3.1 14.3.2 14.3.3 14.3.4

UNCTAD policy research pillar UNCTAD expert dialogue pillar Consensus building in addressing harmful incentives Conclusions and the New UNCTAD XIV Mandate

15. Our Oceans, Our Livelihoods: The World Bank and Oceans Governance Meagan Wong and Olufemi Elias 15.1 The World Bank

15.1.1 Institutional overview and structure 15.1.2 Position in the United Nations system 15.1.3 Mission of the World Bank

268 270 272 273 275

282 284 284 286 286 297 311

315 317 318 320 320

322 322 322 323 323

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15.2 Our Oceans: Our Earth’s Valuable Natural Assets, Ecosystems, and Economies

323

15.3 The World Bank and Its Strategy towards Healthier Oceans

330

15.2.1 Coastal states: duties and obligations, and coastal economies 15.2.2 Food security 15.2.3 Food security and marine biodiversity 15.2.4 Climate change 15.2.5 Challenges 15.2.6 The need to promote marine and coastal area asset management: understanding ecosystems 15.3.1 ‘Blue growth’: sustainable economic expansion 15.3.2 Partners 15.3.3 Output and projects 15.3.4 General assessment

15.4 Conclusion 16. Ethics of International Maritime Law and Ocean Governance Marko Pavliha 16.1 Introduction 16.2 Ethical Flavour of International Law 16.3 Law of the Sea 16.4 Maritime Law 16.5 Ocean Governance 16.6 Conclusion: The Crucial Importance of Upbringing and Education 17. Intergenerational Equity, Ocean Governance, and the United Nations Malgosia Fitzmaurice 17.1 Introduction 17.2 The Concept of Intergenerational Equity within the Context of Sustainable Development and the Protection of the Environment 17.3 International Conventions and Soft Law Instruments Including the Principle of Intergenerational Equity 17.4 The 1982 United Nations Convention on the Law of the Sea and Intergenerational Equity 17.5 International Case Law and Future Generations 17.6 National Case Law and Future Generations 17.7 Constitutional and Institutional Protection of the Rights of Future Generations 17.8 The United Nations and Future Generations 17.9 Conclusions

323 325 327 328 329 329

330 332 332 337

338 339

339 342 344 348 350 356 357 357 358 360 362 363 367 370 372 375

Index 377

Table of Cases I N DI A ND Jayal v Union of India (2004) 9 SCC 36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 People United for Better Living Calcutta v State of West Bengal (1992) 59. . . . . . . . . . . . . . . . . . . . 369 S Jagannath v Union of India (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 Vedanta Alumina Ltd v Prafulla Samantra and Others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 BA NGL A DE SH M Farooque v Bangladesh and Others, (1997) 49 DLR (AD) 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 PH I L L IPI N E S Minors Oposa v Secretary of the Department of Environment and Natural Resources (DENR), Supreme Court of the Philippines, 30 July 1993, 33 ILM (1994) 173. . . . . . . . . . . 367–​8 U N I T E D K I NGDOM Banque Financière de la Cité SA v Westgate Insurance Co Ltd [1991] 2 AC 249. . . . . . . . . . . . . . Carter v Boehm (1766) 3 Burr 1905. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Manifest Shipping Co Ltd v Uni-​Polaris Insurance Co Ltd and La Réunion Européene (The Star Sea) [2001] 1 Lloyd’s Rep 389 (HL). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pan Atlantic Insurance Co v Pine Top Insurance Co Ltd [1995] 1 AC 501 (HL). . . . . . . . . . . . . .

349n 349n 349n 349n

U N I T E D  STAT E S Sale v. Haitian Centres Council, Inc., 21 June 1993, ILM 32 (1993). . . . . . . . . . . . . . . . . . . . . . . .   248n I N T E R NAT IONA L COU RT OF J UST ICE Case Concerning Certain Phosphate lands in Nauru (Nauru v Australia), Judgment of 26 June 1992 [1992] ICJ Reports 240. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366n Case Concerning the Gabčíkovo-​Nagymaros Project (Hungary v Slovakia), Judgment of 25 September 1997, ICJ Reports 1997. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 Immunities and Criminal Proceedings (Equatorial Guinea v France) Order (7 December 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237-​8nn Fisheries Jurisdiction Case (Spain v Canada) ICJ Rep (1998) 432. . . . . . . . . . . . . . . . . . . . . . . . . . . . 88n Icelandic Fisheries Case (UK v Iceland) ICJ Rep (1974) 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88n Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 Nuclear Tests cases (interim protection) (Australia v France; New Zealand v France) [1973] ICJ Reports 99, 118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346n Nuclear Tests I (Nuclear Tests (New Zealand v France), Judgment, ICJ Reports 1974) . . . . . . . . . 364 Nuclear Tests II (Request for an Examination of the Situation in Accordance With Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) ICJ Reports 1995, 317. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364

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Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case, Order of 22 September 1995. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364n (Dissenting Opinion of Judge Weeramantry) ICJ Reports 1995, . . . . . . . . . . . . . . . . . . . . . . . . . 317–​62 Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment, ICJ Reports 2014, 226. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363n

Table of International Treaties AGR E E M E N TS Agreement between the United Nations and the Food and Agriculture Organization of the United Nations. . . . . . . . . . . . . . . . . . . . . . . . . . . 4n Art. V(2)(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4n Agreement between the United Nations and the IMF. . . . . . . . . . . . . . . . . . . . . 125n Agreement between the United Nations and the World Intellectual Property Organization. . . . . . . . . . . . . 213 Art. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213n Agreement on the Conservation of African-​Eurasian Migratory Water birds (AEWA). . . . . . . . . . . . . . 182 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS). . . . . . . . . . . . . . . . . . . . 170 Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS). . . . . . 170, 182 Agreement Governing the Activities of States on the Moon and other Celestial Bodies 1979. . . . . . . . . . . . . . 346 Agreement for the Implementation of Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement) . . . . . . . . . . . . . . . . . . . 10–​12, 15, 19, 22–​3, 30n, 93, 221 Art. 5(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11n Art. 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11n Art. 18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art. 19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art. 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art. 24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81n Art. 30(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . 221n Agreement relating to the International Telecommunications Satellite Organization (INTELSAT)(20 August 1971), 1220 UNTS 21; 23 UST 3813, TIAS 7532; 1973

UKTS 80, Cmnd 5610; 1973 ATS 6; (1971) 10 ILM 909. . . . . . . . . . . . . . 137n Agreement on port state measures to prevent, deter and eliminate illegal, unreported and unregulated fishing . . . . . . . . . 10, 13–​15, 18, 20, 215 Art. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art. 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art. 9(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art. 9(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art. 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art. 20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Art. 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Art. 21(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . ...21 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas. . . . . . . . . 7, 9, 14–​16, 19–​20, 27 Art. III(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Art. III(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Art. III(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art. III(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art. III(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art. III(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Art. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports (16 October 1985). . . . . . . . . . . 142n Agreement on Subsidies and Countervailing Measures. . . . . . . . . . . 24 Arbitration Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia. . . . . . . . . . 347–​8 Framework Convention on Climate Change. . . . . . . . . . . . . . . . . . . . . 30n, 360 Art. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360–​1 International Air Services Transit Agreement 1944. . . . . . . . . . . . . . . . . . 67n International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) . . . . . . . . . . . 222

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Operating Agreement on the International Maritime Satellite Organization (INMARSAT). . . . . . . . 139 Art. III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Art. XV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. XVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141n Art. XVIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Operating Agreement relating to the International Telecommunications Satellite Organization (INTELSAT), 1220 UNTS 149; 23 UST 4091, TIAS 7532; 1973 UKTS 80, Cmnd 5461; (1971) 10 ILM 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137n Outer Space Treaty 1967. . . . . . . . . . . . . . . . . . 148 Art. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Paris Agreement. . . . . . . . . . . . . . . . . . . . 7, 53, 73n Paris Peace Treaty 1919. . . . . . . . . . . . . . . . . . . 102 Peace Treaty of Paris 1973. . . . . . . . . . . . . . . . 249 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, London, Moscow and Washington, 27 January 1967. . . . . . . . . . . . . . . . . . . . 148n Treaty on Underground Nuclear Explosions for Peaceful Purposes’ (1 June 1990) Verification Protocol. . . . . . . . . . . . . . . . . . 145n Trusteeship Agreement for Nauru Art. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 Art. 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 Art. 5(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 UNCLOS Implementing Agreement 1994 . . . . . . . . . . . . . . . . . . 218 United Nations Fish Stock Agreement (1995) . . . . . . . . . . . . . . . . . . . . . . . 315, 319 Vienna Convention for the Protection of the Ozone Layer . . . . . . . . . . . . . . 153, 182 World Trade Organization (WTO) Agreement on Trade-​related Aspects of Intellectual Property Rights (TRIPs). . . . . . . . . . . . . . . . . . . 210 PROTOCOL S Kyoto Protocol. . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Art. 2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73n Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits

Arising from their Utilization to the Convention on Biological Diversity. . . . . . . . . . . . . . . . . . . 220n, 222 Art. 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. . . . . . . . . . . . . . . . . . . 229n, 234 Protocol relating to the Status of Refugees 1967. . . . . . . . . . . . . 245,  248–​9 Protocol against the Smuggling of Migrants by Land, Sea and Air . . . . 229n Art. 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Art. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235–​7 Art. 9. . . . . . . . . . . . . . . . . . . . . . . . . . 236n, 237 Art. 9(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236n Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition. . . . . . . . . . . . . . . . . . . . 229n DECL A R AT IONS Johannesburg Declaration on Sustainable Development 2002 . . . . . 361 Rio Declaration on Environment and Development 1992 Principle 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . 361 Stockholm Declaration on Human Environment 1972 Principle 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . 361 I N T E R NAT IONA L CON V E N T IONS 1988 Convention. . . . . . . . . . . . . . . . . . . . . . . . 238 Art. 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Art. 17(10). . . . . . . . . . . . . . . . . . . . . . . . . . . 236n Art. 17(11). . . . . . . . . . . . . . . . . . . . . . . . . . . 236n Art. 32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238n Accommodation of Crews Convention (Revised) 1949 (No 92) and the Accommodation of Crews (Supplementary Provisions) Convention 1970 (No 133) . . . . . . . . 114n Amended Convention of the International Mobile Satellite Organization (IMSO) (INMARSAT)) with Public Service Agreement (1999) XXIV AASL 477–​506. . . . . . . . . . . . 144n,  146–​8 Art. 3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146



Table of International Treaties

Art. 3(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Art. 3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Art. 3(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Art. 3(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 IMSO Convention 2008. . . . . . . . . . . . . 148, 156n Art. 1(h)–​(l) . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 3(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 3(2)(a)–​(b). . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 4(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 5(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 5(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 5(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 6(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148n Art. 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art. 7(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 9(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 9(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 9(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 10(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 10(2). . . . . . . . . . . . . . . . . . . . . . . . . . 149–​50 Art. 10(2)–​(3). . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 10(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 11(a)–​(b). . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 11(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 11(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 11(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 11(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 11(g)–​(h). . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 12(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 12(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 12(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150–​1 Art. 13(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art. 13(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art. 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art. 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art. 18(1)–​(2). . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 18(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art. 20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150n Art. 20(1)–​(2). . . . . . . . . . . . . . . . . . . . . . . . . 150 Art. 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Amendments to the Convention and Operating Agreements on the International Mobile Satellite Organization, (24 October 2001) (2001) UKTS 49, Cm 5274;. . . 144n

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Amendments to the Convention on the International Maritime Satellite Organization (INMARSAT). . . . . . . 144n Amendments to the Operating Agreement on the International Maritime Satellite Organization (INMARSAT) (1999) UKTS 85, Cm 4553. . . . . . . . . . . . . . . . . . . . . . . . 144n Air Navigation Convention (Paris Convention). . . . . . . . . . . . . . . . . . . . . . . 61 International Convention on Arrest of Ships 1999 . . . . . . . . 285, 289, 294–​5, 304 International Convention on Civil Liability for Bunker Oil Pollution Damage (2001) . . . . . . . . . . . . . . . . . . . 348 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (2004) . . . . . . . . . . . . . . . . . 348 International Convention on the Control of Harmful Anti-​Fouling Systems (2001). . . . . . . . . . . . . . . . . . . . 348 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. . . . . . . . . . . . . . . . . 153, 169, 182 Benguela Current Convention. . . . . . 90–​1, 93–​4, 98, 166n Berlin Convention of 1906. . . . . . . . . . . . . . . . 137 Convention on Biological Diversity (CBD). . . . . . . . . . . . . . . . . . . . . . 11, 25, 27, 30, 86, 153, 165, 167, 169, 182, 194, 222 Art. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86n Art. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . 212n, 327 Art. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Art. 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Art. 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules) 1978. . . . . . . . 285, 288, 292–​3, 298, 302 International Convention on Civil Liability for Oil Pollution Damage 1992 (1992 CLC). . . . . . . . . . 313 United Nations Convention on a Code of Conduct for Liner Conferences 1974. . . . . . . . . . . . . . . . . . . . . . . 285,  287–​9 Art. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287n United Nations Convention on Conditions for the Registration of Ships 1986. . . . . . . . . . . . . 285,  289–​91 Art. 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291n

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Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF Convention). . . . . 93, 100 Annex 4.6. . . . . . . . . . . . . . . . . . . . . . . . . . . 145n Convention on the Conservation of Migratory Species of Wild Animals (CMS). . . . . . 169–​71, 182, 361n Convention on Conservation of Nature in the South Pacific (Apia Convention). . . . . . . . . . . . . . . . . . . . . . 162 United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea . . . . . . . . . . . . . . . . . 302, 348 Art. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349n International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1992 Fund Convention). . . . . . . . . . . . . . . . . . . . . 313n Hazardous and Noxious Substances (HNS) Convention 1996. . . . . . . . . . . 305 Convention on the High Seas 1958. . . . . . . . . . . . . . . . . . . . . . . . 104n, 291 Art. 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Convention on International Civil Aviation (Chicago Convention). . . . . . . . . . . . . . . . 61–​3, 64n, 66–​8, 72, 77 Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61n Art. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62n, 63 Art. 2. . . . . . . . . . . . . . . . . . . . . . . . . 62n, 63, 68 Art. 3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Art. 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67n Art. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Art. 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Art. 25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Art. 37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63n Art. 44. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62n, 63 Art. 125(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . 67n Art. 125(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Annex 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69n Annex 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144n Annex 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Annex 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Annex 16. . . . . . . . . . . . . . . . . . . . . . . . . . 72n, 74 Convention on the International Maritime Satellite Organization (INMARSAT) (3 September 1976) 1143 UNTS 105; 1979 UKTS 94, Cmnd 7722; 31 UST 1,

TIAS 9605; (1976) 15 ILM 1051–​76. . . . . . . . . . . . . . . . . . . . . . 139–​40 Art. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. 3(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. 3(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. 5(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140–​1 Art. 7(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. 7(1)–​(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 10(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. 10(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. 11(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 140–​1 Art. 12(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 12(1)(b). . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 12(1)(c). . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 13(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . 141n Art. 13(1)(e). . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 14(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 14(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 14(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 14(3)(b)–​(c). . . . . . . . . . . . . . . . . . . . . . . 141 Art. 14(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . 141n Art. 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Art. 16(1)–​(2). . . . . . . . . . . . . . . . . . . . . . . . . 142 Art. 16(3)–​(4). . . . . . . . . . . . . . . . . . . . . . . . . 142 Art. 19(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 19(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art. 19(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Art. 20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140–​1 Art. 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140–​1 Art. 25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. 27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Art. 31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141n Art. 32(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Art. 33(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Art. 34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Annex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141n United Nations Convention on International Multimodal Transport of Goods 1980 . . . . . . . . . 285, 288, 291–​2, 297–​8 Convention on International Trade in Endangered Species (CITES). . . . . 6, 24, 27, 169, 182, 234 Convention on the Law of the Sea (UNCLOS) 1982. . . . . . . . . . . 3, 8, 11, 16, 28–​32, 34–​6, 38–​9, 49, 60, 64, 75, 77, 83, 86–​7, 89, 99, 106, 145, 153–​4,



Table of International Treaties 156, 165, 172, 175–​6, 177n, 179, 184, 214, 217–​20, 222, 225, 232, 234–​8, 242, 274, 285n, 290, 313–​15, 319, 323–​4, 330, 344–​7, 347,  362–​3 Preamble. . . . . . . . . . . . . . . . . . 83n, 232n, 234n Pt II ����������������������������������������������������������������88n Pt IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88n Part V . . . . . . . . . . . . . . . . . . . . . . 86, 88n, 323n Pt VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88n Pt VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . 218, 220 Pt XI. . . . . . . . . . . . . . . . . . . . . . . . . 178, 218, 220 Pt XII. . . . . . . . . . . . . . . . . . . . . . 153, 156, 298n Pt XV. . . . . . . . . . . . . . . . . . . . . . . . . . . 221, 238n Art. 1(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74n Art. 1(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298n Art. 2(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63n Art. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323n Arts 17–​26. . . . . . . . . . . . . . . . . . . . . . . . . . . . 87n Art. 24(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68n Art. 25(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69n Art. 28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295n Arts 34–​45 . . . . . . . . . . . . . . . . . . . . . . . . . . . 87n Art. 39(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 64n Art. 49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62n Art. 51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324 Arts 52–​54 . . . . . . . . . . . . . . . . . . . . . . . . . . . 87n Art. 56(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Art. 56(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3n Art. 57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323n Art. 58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Art. 58(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . 307n Art. 60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68n Arts. 61–​63. . . . . . . . . . . . . . . . . . . . 324n, 326n Arts 61–​73. . . . . . . . . . . . . . . . . . . . . . . . . . . . 87n Art. 61. . . . . . . . . . . . . . . . . . . . . . . 3n, 29n, 338 Art. 61(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3n Art. 61(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3n Art. 63. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3n Art. 64. . . . . . . . . . . . . . . . . . . . . . . . . . 3n,  337–​8 Art. 78. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62n Art. 80. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68n Art. 86. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62n Art. 87. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87n Art. 87(1)(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3n Art. 88. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99n Art. 90. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87n Art. 91. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Arts. 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290n Art. 91(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Arts. 92(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Art. 94. . . . . . . . . . . . . . . . . . 104–​5, 118n, 290n Art. 94(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Art. 94(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 290

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Art. 98. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Art. 98(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Art. 100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307n Arts. 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307n Art. 105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307n Art. 107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236n Art. 108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Art. 110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 Art. 110(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . 290 Art. 111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Art. 111(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . 71n Art. 111(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Art. 113(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Arts. 116–​19. . . . . . . . . . . . . . . . . . . . . . . . . . . 3n Art. 118. . . . . . . . . . . . . . . . . . . . . . 3n, 99n, 338 Art. 119. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338 Art. 119(1)(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Art. 119(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Art. 135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46n Art. 136. . . . . . . . . . . . . . . . . . . . . . . . . . 346, 362 Art. 137. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362 Art. 140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362 Art. 141. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99n Arts. 143–​145. . . . . . . . . . . . . . . . . . . . . . . . . 362 Pt XII, arts 192–​237 . . . . . . . . . . . . . . . . . . . . 87 Art. 192. . . . . . . . . . . . . . . . . . . . . . . . . . . 29n, 86 Art. 193. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Art. 194. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29n Art. 194(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 346n Art. 194(3b). . . . . . . . . . . . . . . . . . . . . . . . . 298n Art. 194(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . 337 Art. 197. . . . . . . . . . . . . . . . . . . . 156, 298n, 338 Art. 200. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29n Art. 202. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29n Art. 204. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29n Art. 205. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29n Art. 211. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298n Art. 212. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74n Art. 238. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33n Art. 239. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39n Art. 242. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39n Art. 244(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Art. 246. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Art. 247. . . . . . . . . . . . . . . . . . . . . . . . . . . 39–​40 Art. 251. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Art. 255. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Art. 256. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33n Art. 257. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33n Art. 258. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Art. 266. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art. 271. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58n Art. 275 ff . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30n Art. 278. . . . . . . . . . . . . . . . . . . . . . . . . . . 30n, 35

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Art. 279. . . . . . . . . . . . . . . . . . . . . . . 238n, 347n Art. 280. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347n Art. 293(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 346n Art. 300. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345n Art. 301. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99n Vienna Convention on the Law of Treaties (VCLT) . . . . . . . . . . . . . . 343, 345 Art. 26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345n Art. 31(3)(c). . . . . . . . . . . . . . . . . . . . . . 237, 257n Art. 53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343n International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996. . . . . . . . . . . . 348 London Radio-​Telegraph Convention of 1912. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Marine pollution convention (MARPOL) . . . . . . . . . . . . . . . . . . . . . . 106 Maritime Labour Convention (MLC) 2006. . . . . . . . . . . . . . . . . . . . . 105–​20,  349 Pt I�������������������������������������������������������������������116 Pt II �����������������������������������������������������������������116 Title 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Title 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Title 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Title 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Title 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115–​16 Art. II(1)(f). . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Art. II(1)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Art. II(1)(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Art. III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349n Art. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349n Art. V(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Art. V(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Art. VI(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Art. VI(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Art. VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . 349n Art. XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Art. XV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 International Convention on Maritime Liens and Mortgages 1993. . . . . 285, 289, 294–​5,  304 International Convention on Maritime Search and Rescue 1979 (Hamburg Convention). . . . . . . . . 70, 145 Art. 2.1.8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Minimum Age (Sea) Convention 1920 (No 7). . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Medical Examination of Young Persons (Sea) Convention 1921 (No 16). . . . . 104n Merchant Shipping (Minimum

Standards) Convention 1976 (No 147). . . . . . . . . . . . . . . . . . . . . . . . . 103 Art. 2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109n Art. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103n Minamata Convention on Mercury. . . . . . . . 182 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention). . . . . . . . . . . . . . . . . . . 30, 43n Convention on the Privileges and Immunities of the Specialized Agencies. . . . . . . . . . . . . . . . . . . . . . . . . 195 Annex XVIII . . . . . . . . . . . . . . . . . . . . . . . . . 195 Convention for the Protection of the Marine Environment of the North-​East Atlantic arts 6, 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30n Annex IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30n Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention). . . . . . . . . . . . . . . . . . 92, 158, 163, 167–​8, 188 Convention on the Protection of the Environment of the Baltic Sea Area Art 24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30n Convention on the Protection of the Black Sea (Bucharest Convention). . . . 92 UN Convention on the Protection of Global Climate 1992. . . . . . . . . . . . . . . 347 Convention on the Protection of Tourists and Tourism Service Providers . . . . . . . . . . . . . . . . . . . . . . . . 196 International Convention for the Regulation of Whaling 1946. . . . . . . . 360 Geneva Convention Relating to the Status of Refugees. . . . . . . . . . 244–​6,  249 Art 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 para A(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . 245n Art. 33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 Art. 33(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . 246n Art. 35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 Nairobi International Convention on the Removal of Wrecks (2007) . . . . . . . . . 348 International Convention on the Safety of Life at Sea (30 January 1914). . . . . . 138 Convention on safety of life at sea (SOLAS). . . . . . . . . . 106, 139, 252–​5, 306 Ch IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Ch V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Art. 4.1–​1. . . . . . . . . . . . . . . . . . . . . . . . . . . . 253



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Seafarers’ Hours of Work and the Manning of Ships Convention 1996 (No 180) . . . . . . . . . . . . . . . . 107, 113 Seafarers’ Identity Documents Convention 1958 (No 108) . . . . . . . 107n, 118, 173 Seafarers’ Identity Documents Convention (Revised) 2003 (No 185). . . . . . . . . . . . . . . . . . . . . 107n,  118–​19 Seafarers’ Pensions Convention 1946 (No 71). . . . . . . . . . . . . . . . . . . . . . . . . 107n Search and Rescue (SAR) Convention. . . . 252–​7 Annex Ch 3.1.9. . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Convention standards of training and certification (STCW). . . . . . . . . . . . . . 106 Convention on the Territorial Sea and the Contiguous Zone 1958 Art 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63n International Convention for the Suppression of the Financing of Terrorism. . . . . . . . . . . . . . . . . . . . . . . . 230 International Convention for the Suppression of Terrorist Bombings. . . . . . . . . . . . . . . . . . . . . . . 230n Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention). . . . . . . . . . . . . . . . 234, 307n Convention against Torture (CAT) Art. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246n United Nations Convention against Transnational Organized Crime (UNTOC). . . . . . . 233–​4, 237–​8, 240, 242 Art. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Art. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Art. 4(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Art. 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Art. 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Art. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Art. 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Art. 35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238n Montreal Convention for the Unification of Certain Rules for International Carriage by Air 1999. . . . . . . . . . . . . . 350 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1924 (Hague Rules), as amended by the Visby Protocol 1968. . . . . 292, 302 International Convention for the Unification of Certain Rules

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Relating to the Arrest of Sea-​going Ships 1952. . . . . . . . . . . . . . . . . . . . . . . . . . 295 Convention on Wetlands of International Importance (Ramsar Convention) . . . . . 170, 193, 207 WIPO Convention. . . . . . . . . . . . . . . . . . . . 212–​13 Art. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212n Art. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212n Work in Fishing Convention 2007 (No 188). . . . . . . . . . . . . . . . . . . . . . 116–​18 Abidjan Convention (West, Central and South Africa Region). . . . . . . . . 158, 163, 167–​8, 172, 177, 186 Antigua Convention (North East Pacific) . . . . . . . . . . . . . . . . . . . . . . 158, 163 Barcelona Convention (Mediterranean). . . . . . . 158, 163, 166–​8, 170, 172, 176, 186 Bucharest Convention (Black Sea). . . . 158, 163, 168, 187 Jeddah Convention (Red Sea and Gulf of Aden) . . . . . . . . 158, 163, 167–​8, 172, 188 Kuwait Convention (ROPME Sea Area) . . . . . . . . . . . . 158, 163, 168, 189 Art. II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167n CPPS and Lima Convention (South East Pacific) . . . . . . . . 158, 163, 174, 176–​7, 189 Nairobi Convention (East Africa region) . . . . . . . . . . . . . . . . . 158, 163, 166, 168, 172, 177, 190 SPREP and Noumea Convention (Pacific region) . . . . . . . . . . . 158, 162–​3, 176, 190 Teheran Convention (Caspian Sea). . . . . . . . . . . . . 158, 163, 191 CAMLR Convention (Antarctic) . . . . . 158, 163, 176, 188 Helsinki Convention (Baltic Sea). . . . . . . . . 158, 163, 188 OSPAR Convention (Northeast Atlantic). . . . . . . . . . . . . . . . 158, 163, 168, 176, 190, 330 Rotterdam Convention. . . . . . . . . . . . . . . 169, 182 Stockholm Convention. . . . . . . . . . . . . . . 169, 182 OTHER LEGAL INSTRUMENTS Charter of the United Nations. . . . . . . . . . . . . 373 Art. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347n Art. 2(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345n Art. 33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347n Art. 57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 Art. 57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4n

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Art. 63. . . . . . . . . . . . . . . . . . . . . . . . . . 4n, 269n Art. 64. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269n Art. 76. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 Art. 96. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 Art. 96(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 Constitution of the Food and Agriculture Organization of the United Nations. . . . . . . . . . . . . . . 4n, 5, 21 Art. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n Arts.  1–​3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art. II(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n Art. II(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n Arts. III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n Art. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n, 16 Art. IV(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n Art. V(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n Art. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 16 Art. VI(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Art. VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n Art. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n Art. XIV(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 FAO Code of Conduct for Responsible Fisheries (CCRF) . . . . . 7–​17, 19, 22–​3, 27 Art. 1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art. 1.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art. 2(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12n Art. 4.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art. 6.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12n Art. 6.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12n Art. 6.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12n Art. 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art. 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 General Rules of the Organization, Basic Texts of the Food and Agriculture Organization of the United Nations Rule XXX(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 6n Rule XXX(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 6n International Guidelines for the Management of Deep-​Sea Fisheries in the High Seas. . . . . . . . . . . 17 para. 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17n para. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17n paras 42–​46 . . . . . . . . . . . . . . . . . . . . . . . . . . 17n paras 42–​53. . . . . . . . . . . . . . . . . . . . . . . . . . . 17n International Health Regulations (2005). 272,  278–​80 Art. 48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272n Art. 62. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278n Annex 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 International Plan of Action for Conservation and Management of Sharks. . . . . . . . . . . . . . . . . . 7, 17–​18, 24

International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries. . . . . . . 16 International Plan of Action for the Management of Fishing Capacity . . . . 17 International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA–​IUU). . . . . . . . . . . . 17–​19, 22–​3,  27 para. 3.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 para. 3.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 para. 3.3.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 para. 3.3.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 para 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 para 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23n paras 25–​6. . . . . . . . . . . . . . . . . . . . . . . . . . . 23n International Seafarer’s Code . . . . . . . . . . . . . 103 IOC Statutes Art 1, para 1. . . . . . . . . . . . . . . . . . . . . . . . . . 32n Art 2, para 1. . . . . . . . . . . . . . . . . . . . . . . . . . 32n Art 2, para 2. . . . . . . . . . . . . . . . . . . . . . . . . . 35n Art 3, para 1. . . . . . . . . . . . . . . . . . . . . 32n, 39n Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33n Arts 5–​8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33n Statute of the International Court of Justice Art. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342n IMF Articles of Agreement . . . . . . . 123, 125, 127 Art. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Art. II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Art. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127–​8 s. 3(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127n IMO Regulation V/​19–​1. . . . . . . . . . . . . . . . . . 147 IMO Assembly Resolution A.888 (21). . . . . . 147 IMO Assembly Resolution A25/​Res.1001 . . . . 147 IMO Resolution MSC.202(81) Annex 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area ISBA/​6/​A/​18 (4 October 2000) reg 1.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63n Transforming the World: The 2030 Agenda for Sustainable Development, UNGA Res 70/​1. . . . . . 4n, 26n, 231n, 232n, 281n, 362 paras. 39–​46. . . . . . . . . . . . . . . . . . . . . . . . .. 26n para. 47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26n UNGA Resolution 61/​105 (6 March 2007) para 80. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17n para 83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17n paras 88–​91. . . . . . . . . . . . . . . . . . . . . . . . . . . 17n



Table of International Treaties

Voluntary Guidelines for Flag State Performance 2014. . . . . . . . . . . . . . . . . . 19 para. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19n paras6–​37. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19n UNGA Res 8(I). . . . . . . . . . . . . . . . . . . . . . . . . 243n UNGA res 302(IV) . . . . . . . . . . . . . . . . . . . . . 244n UNGA Res 319 (IV). . . . . . . . . . . . . . . . . . . . . . 243 UNGA res 410(V) . . . . . . . . . . . . . . . . . . . . . . 244n UNGA res 428(V). . . . . . . . . . . . . . . . . . . . . . 244n UNGA res 538(VI) . . . . . . . . . . . . . . . . . . . . . 244n UNGA res 1286(XIII). . . . . . . . . . . . . . . . . . . 245n UNGA Res 1995 (XIX). . . . . . . . . . . . . 284n, 285 A/​R ES/​70/​1. . . . . . . . . . . . . . . . . . . . . . . . . . . . 154n UNGA Res A/​R ES/​70/​75 paras 82–​86. . . . . . . . . . . . . . . . . . . . . . . . . . 22n para 93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22n para 103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22n para 199. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Resolution Conf.12.4. . . . . . . . . . . . . . . . . . . . . 24n UNGA Res 35/​56. . . . . . . . . . . . . . . . . . . . . . . 287n UNGA Res 54/​33. . . . . . . . . . . . . . . . . . . . . . . 330n UN General Assembly Resolution 66/​ 288 The Future We Want. . . . . . . 203, 313 para 58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313n para 160. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30n paras 168–​77. . . . . . . . . . . . . . . . . . . . . . . . . . 25n UNGA Res 66/​231 Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . 232n UN General Assembly Resolutions 55/​ 2 United Nations Millennium Declaration . . . . . . . . . . . . . . . . . . . . . 234n para 11.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25n paras 21 ff.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25n para 24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231n paras 31 ff UNGA Res 55/​25. . . . . . . . . . . . . . . . . . . . . . . 234n UNGA Res 70/​299 Follow-​up and review of the 2030 Agenda for Sustainable Development at the global level. . . . . . . . . . . . . . . . . . . . . . . 26n UNGA Res 70/​01. . . . . . . . . . . . . . . . . . . . . . . . 30n UNGA Res 70/​235. 31n, 33n, 36n, 50n, 56n, 58n Preamble. . . . . . . . . . . . . . . . . . . . . . 232n, 234n UNGA Res 59/​24. . . . . . . . . . . . . . . . . . . . . . . . 218 UNGA Res 68/​70. . . . . . . . . . . . . . . . . . . . 36n, 274 UNGA Res 69/​213. . . . . . . . . . . . . . . . . . . . . . . 316 UNGA resolution 69/​233. . . . . . . . . . . . . 203, 205 Resolution 69/​245 . . . . . . . . . . . . . . . . . . . . . . 156n UNGA Res 69/​292. . . . . . . . . . . . 36n, 175–​6, 355 UNGA resolution 69/​313 . . . . . . . . . . . . . . . . . 203 UNGA Res 60/​30. . . . . . . . . . . . . . . . . . 50n, 330n UNGA Res 65/​37. . . . . . . . . . . . . . . . . . . . . . . . 50n UNGA Res 65/​173. . . . . . . . . . . . . . . . . . . . . . . 204

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UNGA Resolution 1721 (XVI) Part D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Resolution 2997 (XXVII). . . . . . . . . . . . . . . . . 153 Resolution 2/​10 Oceans and seas . . . . . . 157, 160 para. 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Resolution 2/​11 Marine plastic litter and microplastics. . . . . . . . . . . . 157, 179n 2/​12 Sustainable coral reefs management . . . . . . . . . . . . . . . . . . . . . 157 para 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 para 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179n Resolution 2/​17. . . . . . . . . . . . . . . . . . . . . . . . . . 169 Resolution 2/​18 Relationship between the United Nations Environment Programme and the multilateral environmental agreements for which it provides the secretariats. . . . . . . . . . . . . . . . . . . . . . . 157 UN Environment Governing Council Resolution 22/​2 Water III. . . . . . . . . . 158 UN Environment Governing Council Decision 27/​6 on Oceans. . . . . . . . . . . 169 UNGA resolution 58/​232. . . . . . . . . . . . . . . . . 195 UNGA resolution 453 (XV). . . . . . . . . . . . . . . 195 UNGA resolution 56/​212. . . . . . . . . . . . . . . . . 196 UNGA Res 45/​179. . . . . . . . . . . . . . . . . . . . . . 227n UNGA Res 46/​152. . . . . . . . . . . . . . . . 227n, 229n UNGA Res 62/​252. . . . . . . . . . . . . . . . . . . . . . 228n ECOSOC res 248(IX) . . . . . . . . . . . . . . . . . . . 243n ECOSOC res 672(XXV). . . . . . . . . . . . . . . . . 246n ECOSOC Res 1922/​22. . . . . . . . . . . . . . . 228n, 231 UNGA Res 70/​176. . . . . . . . . . . . . . . . . . . . . . 230n UN Standard Minimum Rules for the Treatment of Prisoners . . . . . . . . . . . . 230 UN Doc S/​R ES/​1851 (2008). . . . . . . . . . . . . . . 240 UN Doc S/​R ES/​2240 (2015). . . . . . . . . . . . . . . 236 UN Doc S/​R ES/​2312 (2016). . . . . . . . . . . . . . . 236 World Health Organization Constitution . . . . . . . . . . . . . . . 269n, 270 Art. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 Art. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 Art. 2(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 Art. 18(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . 269n Art. 18(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . 269n Art. 28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272n Arts. 66–​68. . . . . . . . . . . . . . . . . . . . . . . . . . 269n Arts. 70–​71. . . . . . . . . . . . . . . . . . . . . . . . . . 270n Art. 69. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269n Art. 80. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270n ILC Responsibility of States for Internationally Wrongful Acts 2001 Art. 48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363

Table of Legislation A RGE N T I NA

POL A N D

Argentinian Constitution Article 41(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 370

Constitution of Poland Art. 74(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370

EU ROPE A N U N ION (EU)

PH I L IPPI N E S

ECHR Art. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246n EU Charter of Fundamental Rights Art. 19.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246n Art. 37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Treaty on European Union (TEU) Art. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Art. 3(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346n

Philippine Constitution ss. 15–​16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

GE R M A N Y German Constitution Art. 20a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370 K E N YA Constitution of Kenya 2010. . . . . . . . . . . . . . . Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 69. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 70. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

370 370 370 370 370 370

SOU T H A FR IC A Constitution of South Africa. . . . . . . . . . . . . . 370 U N I T E D K I NGDOM Insurance Act 2015. . . . . . . . . . . . . . . . . . . . . . 349 Marine Insurance Act 1906. . . . . . . . . . . . . . 349n s. 33(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Well-​being of Future Generations (Wales) Act 2015. . . . . . . . . . . . . . . . . . 370 U N I T E D  STAT E S Communications Satellite Act 1962. . . . . . . . Open-​market Reorganization for the Betterment of International Telecommunications Act 2000. . . . . . ORBIT Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . United States Code (U.S.C) Ch 11, Title 11. . . . . . . . . . . . . . . . . . . . . . . . .

137 143 144 143

List of Abbreviations AoA ABE-LOS ABNJs ABS ACCOBAMS

assessment of assessments Advisory Body of Experts on the Law of the Sea areas beyond national jurisdiction access to and benefit sharing Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas, Mediterranean and Contiguous Atlantic Area ACP African, Caribbean, and Pacific ADR Alternative Dispute Resolution ADUs associate data units AEEs aircraft engine emissions AISs artificial islands and structures ALLFISH Alliance for Responsible Fisheries AMCEN African Ministerial Council on the Environment APFIC Asia-​Pacific Fisheries Commission ASAR aeronautical operations ASCOBANS Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas ASEAN Association of the South East Asian Nations ASLs archipelagic sea lanes BCC Benguela Current Commission CBD Convention on Biological Diversity CCAMLR Commission for the Conservation of Antarctic Marine Living Resources CCLME Canary Current Large Marine Ecosystem CCP Container Control Programme CCPCJ Commission on Crime Prevention and Criminal Justice CCRF Code of Conduct for Responsible Fisheries CDIP Committee on Development and Intellectual Property CECAF Fishery Committee for the Eastern Central Atlantic Chicago Convention Convention on International Civil Aviation CHM common heritage of mankind CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora CMS Convention on the Conservation of Migratory Species of Wild Animals CND Commission on Narcotic Drugs COAST Collaborative Actions for Sustainable Tourism COFI Fishery Committee COMHAFAT Ministerial Conference on Fisheries Cooperation among African States Bordering the Atlantic Oceans COP Conference of Parties COREMAP-​CTI Coral Reef Rehabilitation and Management Program: Coral Triangle Initiative COREP Regional Fisheries Committee for the Gulf of Guinea CORSIA Carbon Offsetting and Reduction Scheme for International Aviation

xxxviii CPA CPP CPPS DISERO DMLC DNAs DOALOS EAFs EAS EASAC EBSAs ECB EEZ EU FAL FAO FCC FCCC FENSA FIR GADSS GAR GCOS GDMSS GEBCO GEF GEF GEO GEOSS GESAMP

List of Abbreviations

Comprehensive Plan of Action Counter Piracy Programme Permanent Commission for the South Pacific Disembarkation Resettlement Offers declaration of maritime labour compliance designated national agencies Division for Ocean Affairs and the Law of the Sea ecosystem approaches to fisheries East Asian Seas European Academies’ Science Advisory Council ecologically or biologically significant marine areas Ecosystem-​Based Management exclusive economic zone European Union Facilitation Committee Food and Agriculture Organization of the United Nations Federal Communications Commission Framework Convention on Climate Change Framework of Engagement with Non-State Actors flight information region Global Aeronautical Distress Safety System Global and Alert Response Global Climate Observing System Global Maritime Distress Safety System General Bathymetric Chart of the Ocean Global Environment Facility Global Environment Fund Group of Earth Observations Global Earth Observation System of Systems Joint Group of Experts on the Scientific Aspects of Marine Environment Protection GFCM General Fisheries Commission for the Mediterranean GHGs greenhouse gases GLEWS Global Early Warning System for Major Animal Diseases GLOSS Global Sea Level Observing System GMCP Global Maritime Crime Programme GMP good manufacturing practice GOARN Global Outbreak Alert and Response Network GOBI Global Ocean Biodiversity Initiative GOOS global ocean observing system GOST Global Observatories on Sustainable Tourism GPA Global Programme of Action on the Protection of the Marine Environment from Land-based Activities GRs genetic resources GRAs GOOS Regional Alliances GT gross tonnage HAB harmful algal bloom HACCP Hazard Analysis Critical Control Point Hamburg Rules United Nations Convention on the Carriage of Goods by Sea 1978 HCFG High Commissioner for Future Generations

HIPCs HNS IAEA IALA IBRD ICAM ICAN ICAO ICC ICEM ICES ICSID ICSU IDA IFC IFPRI IGC

List of Abbreviations

xxxix

heavily indebted poor countries Convention Hazardous and Noxious Substances Convention 1996 International Atomic Energy Agency [definition to be added once author confirms exact terms] International Bank for Reconstruction and Development integrated coastal area management International Commission for Air Navigation International Civil Aviation Organization International Chamber of Commerce Intergovernmental Committee for European Migration International Council for the Exploration of the Sea International Centre for the Settlement of Investment Disputes International Council for Science International Development Association International Finance Corporation International Food Policy Research Institute Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore IGM intergovernmental meetings IHO International Hydrographic Organization IHR International Health Regulations ILBI internal legally binding instrument ILO International Labour Organization IMCO Inter-​Maritime Consultative Organization IMLI International Maritime Law Institute IMF International Monetary Fund IMO International Maritime Organization IMSO International Mobile Satellite Organization INFOSAN International Food Safety Authorities Network INSTO International Network of Sustainable Tourism Observatories IOC Intergovernmental Oceanographic Commission IOCAFRICA Sub-Commission for Africa and the Adjacent Islands IOCCP International Ocean Carbon Coordination Project IOCINDIO Committee for the Central Indian Ocean IODE International Oceanographic Data and Information Exchange IOM International Organization for Migration IOTC Indian Ocean Tuna Commission IP intellectual property IPHAB Intergovernmental Panel on Algal Blooms IPOAs international plans of action IRO International Refugee Organization ISA International Seabed Authority ISPS Code International Ship and Port Facility Security Code ITC [definition to be added once author confirms exact terms] ITF [definition to be added once author confirms exact terms] ITLOS International Tribunal for the Law of the Sea ITPGRFA International Treaty on Plant Genetic Resources for Food and Agriculture ITU International Telecommunication Union IUCN International Union for Conservation of Nature

xl IUU JCOMM

List of Abbreviations

illegal, unreported, and unregulated Joint Technical Commission for Oceanography and Maritime Meteorology Kuwait Action Plan Action Plan for the Protection and Development of the Marine Environment and the Coastal Areas Kuwait Convention Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution LDCs least developed countries Lima Convention Convention for the Protection of the Marine Environment and Coastal Areas of the South-​East Pacific LLDCs landlocked developing countries LMEs large marine ecosystems LOA length overall LOSC Law of the Sea Convention (see also UNCLOS) LRIT long-​range identification and tracking of ships MAP Mediterranean action plan MAPS mainstreaming, acceleration, and policy support MARPOL International Convention for the Prevention of Pollution from Ships MAT mutually agreed terms MDGs millennium development goals MEAs multilateral environmental agreements MGRs marine genetic resources MIGA Multilateral Investment Guarantee Agency MLC Maritime Labour Convention 2006 MLC maritime labour certificate MOU memorandum of understanding MPAs marine protected areas MP-EAS Prevention and Management of Marine Pollution in the East Asian Seas MSAR maritime operations MSC Maritime Safety Committee NEAFC North-East Atlantic Fisheries Commission NOAA National Oceanic and Atmospheric Administration NODCs national oceanographic data centre NGOs non-governmental organizations OBIS Ocean Biogeographic Information System ODINs oceanographic data and information networks OECD Organisation for Economic Co-​operation and Development OFMP Pacific Oceanic Fisheries Management Project OIE World Organization for Animal Health OSPAR Convention Convention for the Protection of the Marine Environment of the North-East Atlantic Paris Convention International Air Navigation Convention PCBs polychlorinated biphenyls PCT Patent Cooperation Treaty PEMSEA Partnerships in Environmental Management for the Seas of East Asia PIC prior informed consent PICAO Provisional International Civil Aviation Organization

PROFISH PROG RACs Ramsar Convention RASRO RCUs RECOFI RFBs RFMOs Rio+20 RNODCs ROPME RSN RSSDs SAP SAR SAR SARPs SCOR SCP SDGs SDS SEA SEA SIDs SIDS SIOFA SMEs SMTAs SOLAS SOOP SOPs SPAMIs SPREP SRFC STC STCW STP SUA SWIOFish SWIOFC TCEs TDA TDB TEMA TK TPP TRIPs TWAP

List of Abbreviations

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Global Programme on Fisheries partnership for regional ocean governance regional activity centres Convention on Wetlands of International Importance Rescue at Sea Resettlement Offers regional coordination units Regional Commission for Fisheries regional fisheries bodies regional fisheries management organizations UN Conference on Sustainable Development responsible national oceanographic data centres Regional Organization for the Protection of Marine Environment Regional Fishery Body Secretariats’ Network regional seas strategic directions strategic action programme search and rescue special administrative region standards and recommended practices Scientific Committee on Ocean Research sustainable consumption and production sustainable development goals Sustainable Development Strategy for the Seas of East Asia seafarers’ employment agreement seafarers’ identity documents small island developing states South Indian Ocean Fishery Agreement small and medium-sized enterprises standard material transfer agreements International Convention on the Safety of Life at Sea 1974 ship of opportunity programme standard operating procedures Specially Protected Areas of Mediterranean Importance South Pacific Regional Environment Programme Sub-regional Fisheries Commission Special Tripartite Committee International Convention on Standards of Training, Certification and Watchkeeping for Seafarers Sustainable Tourism Programme Convention Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 Shared Growth Project for the Africa region South-west Indian Ocean Fisheries Commission traditional cultural expressions transboundary diagnostic analysis Trade and Development Board training, education, and mutual assistance traditional knowledge Trans-Pacific Partnership Trade-related Aspects of Intellectual Property Rights transboundary waters assessment programme

xlii UAVs UHF UNCAC UNCED UNCITRAL UNCLOS UNCSD UNCTAD UNCTAD/​ICC Rules UNDCP UNDG UNDP UNEA UNEP UNESCO UNFCCC UNGA UNHCR UNICPOLOS UNIDO UNKRA UNODC UNOPS UNREF UNRWA UNTOC UNWTO VHF Vienna Convention VMEs WCED WCO WCPF WCRP WDCs WECAFC WGISL WHO WIPO WMO WOA WSSD WTO XBTs

List of Abbreviations unmanned aerial vehicles ultra high frequency United Nations Convention against Corruption UN Conference on the Environment and Development United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea 1982 United Nations Conference on Sustainable Development United Nations Conference on Trade and Development UNCTAD/​ICC Rules for Multimodal Transport Documents 1992 United Nations International Drug Control Programme UN Development Group United Nations Development Programme United Nations Environment Assembly United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization United Nations Framework Convention on Climate Change 1992 United Nations General Assembly United Nations High Commissioner for Refugees Informal Consultative Process on Ocean Affairs and the Law of the Sea United Nations Industrial Development Organization United Nations Korean Reconstruction Agency United Nations Office on Drugs and Crime UN Office for Project Services United Nations Refugee Emergency Fund United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Convention against Transnational Organized Crime (United Nations) UN World Tourism Organization very high frequency Vienna Convention for the Protection of the Ozone Layer vulnerable marine ecosystems World Commission on Environment and Development World Customs Organization Convention Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean World Climate Research Programme world data centres Western Central Atlantic Fishery Commission Working Group on International Shipping Legislation World Health Organization World Intellectual Property Organization World Meteorological Organization World Ocean Assessment World Summit on Sustainable Development World Trade Organization expendable bathythermographs

Volume Academic Coordinator Observations Malgosia Fitzmaurice The present volume focuses on ‘UN Specialized Agencies and Ocean Governance’, addressing therefore predominantly many of those agencies within the United Nations (UN) system that have been established as autonomous organizations operating within the institutional system of the UN, or brought into relationship with the UN on the basis of their constitutive treaties or UN General Assembly resolutions. The volume does not constitute, however, an exhaustive consideration of all the current agencies. Having closely examined the input of each one of them into the process of ‘ocean governance’, some have not been included in the scope of this volume because they have not to date made sufficient contributions in the subject matter of ‘ocean governance’, at least to an extent that it would merit their inclusion, although they may have established synergies with other Agencies considered in the present study at the technical level. Where such synergies exist, the contributing experts have examined such agencies and reported accordingly in delineating clearly the respective competences and functions. Together with the UN specialized agencies included within its scope, the present report also considers a number of affiliated UN programmes with considerable input in matters highly relevant to the process of ‘ocean governance’ as they cover overarching issues among many of the specialized agencies. With a view to examining the role of the various agencies and programmes (hereinafter referred to together as institutions) towards the development of an effective and sustainable ‘ocean governance’, the present report embarks from the premise that the emerging concept of ‘ocean governance’ is still largely devoid of legal substance, and although being referred to widely in various UN documents, is stretched for the time being only to principles and soft-​law declaration of many of the agencies, institutions, and programmes that have been considered in the report. In still lacking an internationally accepted definition therefor, the concept is still in a state of flux. However, the undeniable process of ‘ocean governance’ clearly manifests its presence in many of the activities of the institutions under consideration, in promoting overriding principles and objectives relevant to maintain productive socio-​ecological systems; developing policies and regulatory frameworks; ensuring that societal interests are fairly represented in decision-​making; harmonizing individual, sectoral, and societal perspectives; maintaining coherence across jurisdictional, space, and time scales; defining the rules for allocation of power, resources, and benefits; ensuring interaction with other governance systems; enforcing decisions and regulations; and maintaining the capacity to learn and change. This process features both formal and informal rules, arrangements, institutions, and concepts which are developing within an increasing number of important international and transnational projects and activities on the sea space beyond the strict confines of a zonal management to achieve the desired objectives as laid down in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) at a local, national, regional, and global level.

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However, it is noted that a significant number of institutions, despite being committed to ocean-​related matters make no reference in their workings or even engage at any abstract level with the concept of ocean governance, with some not appearing to be systematic and coordinated in this context, with regard both to their participation in UN-​led initiatives and inter-​agency mechanisms, and to the areas of intervention. Some being limited mandated to spheres of international activity dating to an era when environmental interconnectedness had yet to feature as a guiding notion, they lack the competence to enter into inter-​institutional agreements or formal structural connections in relation to otherwise respectively competent areas regarding ocean-​matters, which makes the establishment of complementarities and coordinated action(s) difficult. For other institutions, while being present in the creation of policies, regulatory frameworks, and the establishment of overriding principles and objectives, their work does not appear consciously to develop any definitive precepts of ocean governance. Thus, their institutional contribution is being inferred to this end rather than being seen as explicitly relying on a defined concept thereof. It should be expected, however, that in the UN post-​2015 development agenda and the ongoing process that is currently unfolding, for example in relation to Sustainable Development Goal (SDG) No 14 being of particular importance for UNCLOS and the ocean, the activity of most of the institutions will more clearly be aligned to the concept of an evolving yet undetermined process towards global ocean governance. It should therefore be expected that, in the context of the respective institutions, the concept of ocean governance will soon start to develop in more specific terms and be exercised under established institutions, decision-​making, law-​making, and, where available, dispute settlement procedures. In terms of some common structural considerations, an extensive concern is being witnessed regarding a potential over-​fragmentation of the ocean space stemming for instance from the existence of many sectoral bodies focusing on sectoral benefits. Future cooperation and coordination of regional mechanisms should be shifting towards more integrated approaches, moving away from the traditional sectoral approach. For example, while the tool of large marine ecosystems has largely contributed to scientific assessments, capacity building, and demonstrations on the ground, it is recommended that the creation of new regional governance mechanisms be avoided and be operated through the existing regional governance frameworks. To achieve more sustainable management of the oceans and seas, as envisioned by the Agenda 2030, it is recommended that more integrated cross-​sectoral approaches be taken at all scales of ocean governance. In addition to legally binding treaties, the increase in non-​legally binding guidelines, recommendations etc has proved a valuable means for coordination of activities and harmonization of policy, legislation, and practice among member states of the various institutions. However, the use of soft law tools, for example plans of action, under which a number of institutions conduct their projects, should be more regularly reviewed and revised. In doing so, they will ensure that these remain relevant to the current environmental, social, and economic expectations in light of the SDGs, and foster coherent approaches to the ocean governance as reflected in particular on SDG No 14.



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Possible procedural transformations within the existing apparatus of many of the institutions may require some institutional reform with a view to strengthening their role in the evolving governance, eg those lacking a reporting framework on implementation, compliance and/​or enforcement mechanisms etc. Particularly in institutions where member states are primarily represented by scientific experts who often are not sufficiently mandated to enter into real commitments on behalf of their governments, that leads to a  weak and ineffective decision-​making process, which becomes visible by wordings such as ‘Member States are invited’ or ‘urged’ etc. Although primarily consultative institutions are faced with such reality—​without any powers for law-​making—​more could be done for the compliance with their important formative standards in the context of the evolving ocean governance, at least as a precondition for participating in and benefiting from their projects. Financial sustainability and a rationalized budget are also a key for the future of effective global ocean governance. The lack of financial and human resources may hinder substantive activities and weaken the institutional and governance framework. The development of balanced profitable commercial activities where possible, yet not privatized, in their existing substantive scope may therefore be considered as an option following the successful examples of INMARSAT1 and WIPO.2 In addition, this concern should also be identified more closely with the states, particularly in those parts of the world where countries are still in a development stage in relation to ocean governance matters. Institutions working in this area, such as the International Monetary Fund3 and the World Bank Group4 should even more actively engage with and meaningfully integrate the sustainable use of the oceans to their agenda without, however, extending to fields where they have no mandate or expertise of their own. Although such specialized institutions have no direct relevance to global ocean governance, they may nevertheless contribute to its improvement by facilitating member states to ocean governance implementation by providing technical assistance and policy advice, through better interaction with other, more competent, international agencies. Increasing membership of states and widening participation is to be encouraged, as only a few inter-​governmental institutions enjoy near-​universal participation to allow them to go beyond the threshold of acting merely as a forum for the collection, analysis, and dissemination of data and information, and to claim an effective position in substantive matters of ocean governance. At the same time, participation of all important relevant stakeholders should become more visible in their institutional workings to foster the necessary dialogue on ocean-​related issues. One example is, the paradigm successfully practised by the International Labour Organization5 in profoundly reviewing its approach and working methods with respect to universal standard-​setting on the basis of ‘tripartism’ constituting its foundational principle and fundamental value that ensures that governments and social partners have an equal voice in developing standards, policies, and programmes. Allowing for, and inviting new observers or encouraging all important relevant stakeholders to interact with them based on official relations could also bring some additional benefits in terms of global ocean

  See page 104 ff.

1

  ibid 221 ff.

2

 ibid 87 ff.

3

  ibid 357 ff.

4

 ibid 67 ff.

5

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governance. This process should nevertheless not lead to impeding interdependences, unclear responsibilities, and to an attitude that taking part is everything, regardless of the substance of contribution. However, inasmuch as the social enjoyment of oceans—​ eg sustainable and eco-​friendly marine-​related tourism—​is concerned, institutions being operationally oriented to the public and industry, such as the World Tourism Organization,6 should be encouraged to take part in, and undertake specific projects aiming at the inclusive development of ocean governance by seeking the responsible engagement of different stakeholder interests at the local and national levels. Finally, the remarkable absence of the concept of intergenerational equity in relation to the evolving ocean governance process should not go unnoticed. Despite the great commitment within the UN to the needs of future generations, the concept of ocean governance, when invoked, is largely disassociated from the concepts of intergenerational equity or solidarity, although the latter is inexorably linked to the principle of sustainable development, and is in fact one of its core elements. However, the report takes note of the vibrant and robust discussions regarding the rights of future generations in ocean governance, with a view to highlighting the importance of intertwining the two concepts.7

 ibid 207 ff.   7  ibid 357 ff.

6

List of Contributors David Joseph Attard is Director of the IMO International Maritime Institute and Vice-​President of the International Tribunal for the Law of the Sea. Alexandros XM Ntovas is Lecturer in International Shipping Law at the Queen Mary University of London, Centre for Commercial Law Studies. Regina Asariotis is Senior Legal Affairs Officer and Chief of the Policy and Legislation Section in the Division on Technology and Logistics of the United Nations Conference on Trade and Development (UNCTAD), where she is responsible for the Secretariat’s work in the field of transport law and policy. Claudio Chiarolla is a sustainable development professional specializing in intellectual property, international law, and biodiversity governance. He is involved in the implementation of the Nagoya Protocol of Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention of Biological Diversity. Emmanuella Doussis is Associate Professor at the National and Kapodistrian University of Athens. Peter Ehlers is former President of the Federal Maritime and Hydrographic Agency, Germany, and Professor at Hamburg University. Olufemi Elias is UN Assistant Secretary General, Registrar of the Mechanism for International Criminal Tribunals. Malgosia Fitzmaurice holds a chair of public international law at the Department of Law, Queen Mary University of London. Serena Forlati is Associate Professor of International Law at the Department of Law, University of Ferrara. Kanako Hasegawa is Associate Programme Officer at the United National Environ­ ment Programme. Tore Henrikson is Professor and Director of the KG Jebsen Centre for the Law of the Sea, Faculty of Law, UiT The Arctic University of Norway. Elizabeth A Kirk is Professor of International Environmental Law at Nottingham Law School, Nottingham Trent University. Paul B Larsen was formerly Adjunct Professor at Georgetown Law Center, and is a member of the International Institute of Space Law. Francis Lyall is Emeritus Professor of Public Law at the University of Aberdeen. Graham Mott is an Associate Economic Affairs Officer in the Office of the Director, in the Division on International Trade and Commodities of UNCTAD.

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Elizabeth Maruma Mrema is Director of Law Division, UN Environment Programme. Stefania Negri is Associate Professor of International law at the University of Salerno, Italy; Jean Monnet Chair in European Health, Environment, and Food Safety Law; Director of the Observatory on Human Rights: Bioethics, Health, Environment. Marko Pavliha is Professor of Law and Vice Dean, University of Ljubljana, Faculty of Maritime Studies and Transportation. George P Politakis is Legal Adviser of the International Labour Office. Anila Premti is an Economic Affairs Officer in the Policy and Legislation Section, Trade Logistics Branch, in the Division on Technology and Logistics, UNCTAD. Gerasimos Rodotheatos is a researcher in the European Centre for Environmental Research and Training at Panteion University, Athens. Harry N Schreiber is Director Emeritus of the Law of the Sea Institute and Reisenfeld Chair Professor of Law and History (Emeritus) in the School of Law, University of California, Berkeley. Seline Trevisanut is Professor of International Law at Utrecht University School of Law and senior research associate at the Netherlands Institute for the Law of the Sea (NILOS). UNWTO Legal Department: The chapter on The UN World Tourism Organization and Global Ocean Governance has been prepared by Mr Miguel Angel Susino, Legal Associate at the UNWTO Legal Department, under the coordination of Ms Alicia Gómez, Head of the UNWTO Legal Department, and with the collaboration of Ms Carmen Varo, Legal Associate at the UNWTO Legal Department. David Vivas-​Eugui is Legal Officer in the Trade, Environment, Climate Change and Sustainable Develop­ment Branch in the Division on International Trade and Commodities of UNCTAD. Dr Meagan S Wong is Lecturer in Law at the University of Essex.

PA RT   I M A R I N E L I V I NG R E S OU RC E S A N D M A R I N E BIODI V E R SI T Y

1 The FAO and Ocean Governance Tore Henriksen

1.1 Introduction International fisheries law is an important component of ocean governance. It involves the entitlements, obligations, rules, principles, and institutions for the conservations, management, and conservation of living marine resources. The responsibility for the living marine resources is shared between individual coastal states, regional fisheries bodies (RFBs), and international organizations. Under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), coastal states enjoy sovereign rights to exploit, explore, conserve, and manage the living marine resources within their 200-mile exclusive economic zones.1 It is obligated to conserve and manage the living marine resources and to cooperate with other states on the conservation and management of transboundary resources.2 Fishing on the high seas beyond areas under national jurisdiction is among the traditional freedoms of the high seas.3 States exercising the freedom of fishing have the obligation to cooperate on the conservation of these resources, including with relevant coastal states in respect of trans-​boundary living marine resources.4 States shall establish regional fisheries organizations through which they shall channel the cooperation.5 In exercising their obligations, coastal states and states fishing on the high seas are required to ‘[t]‌ake into account . . . any generally recommended international minimum standards, whether subregional, regional or global . . .’.6 Further, they shall contribute and share scientific information, catch, and effort statistics and other relevant data through competent international organizations.7 Through these UN references the Food and Agriculture Organization of the United Nations (FAO) UNCLOS is made a relevant and legitimate actor in ocean governance.8 Of relevance is its two main functions, which include to provide a forum for the development of norms and for the collection, analysis, and dissemination of data and information. In addition to the legally binding treaties adopted through the FAO, non-​legally binding guidelines and recommendations provide relevant and mandatory considerations to be made by states in exercising their conservation obligations. The obligation to share data with the FAO facilitates a role for the FAO as a clearing house function, an important premise for the global governance of world fisheries. 1   United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 297 (UNCLOS), art 56(1)(a). 2 3 4 5   ibid arts 61, 63, and 64.   ibid art 87(1)(e).   ibid arts 116–​19.   ibid art 118. 6 7   ibid arts 61(3) and 119(1)(a).   ibid arts 61(5) and 119(2). 8  James Harrison, Making the Law of the Sea:  A Study in the Development of International Law (Cambridge University Press 2011) 225.

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The world marine capture has stagnated or stabilized at around 90 million tons annually in recent years.9 Overfishing, overcapacity of the fishing fleets, and illegal, unreported, and unregulated (IUU) fishing are some of the causes. There are external threats to the fisheries sector, including marine pollution, habitat destruction, and, in recent years, climate change. As the short overview documents, there is no single international institution responsible for developing international fishery law.10 The focus in this chapter will be on the role of the FAO in ocean governance. This does not only involve the FAO’s involvement in the conservation and management of living marine resources but also in other activities impacting fisheries management, such as regulating subsidies, the relationship with trade-​related measures, and ensuring compliance with fisheries legislation. Further, there is recognition that there is a  need for more coherent approaches to the governance of oceans as reflected in Sustainable Development Goal No 14, which calls for conservation and sustainable use of the oceans, seas, and marine resources.11 What role does the FAO play in the ‘greening’ of international fisheries law? Before these questions are addressed, some basic information on the FAO is called for.

1.2  Basics about the FAO The FAO was established on 16 October 1945 by the adoption of its constitution.12 The purpose of the FAO is to ‘[p]‌romote the common welfare . . .’, including through ‘improvements in the efficiency of the production and distribution of all food and agricultural products . . . ’.13 The FAO is a UN specialized agency, an autonomous organization working with the United Nations.14 This may involve the FAO providing the UN with reports or studies.15 The relationship between the FAO and the UN will be addressed later. In 1951 the FAO moved from its provisional headquarters in Washington, DC, USA, to its permanent seat in Rome, Italy.16

9   Jean-​François Pulvenis, ‘FAO, Ocean Governance, and the Law of the Sea’ in Harry Scheiber and Jin-​Hyun Park (eds), Regions, Institutions, and Law of the Sea: Studies in Ocean Governance (Brill Nijhoff 2013) 111–​28, 113; FAO, ‘The State of World Fisheries and Aquaculture 2016’ 38, www.fao.org/​3/​a-​i5555e. pdf (last accessed 21 December 2016). 10   Harrison (n 8) 201. 11  Transforming the World:  The 2030 Agenda for Sustainable Development, UNGA Res 70/​1 (21 October 2015) 23–​24. 12   Constitution of the Food and Agriculture Organization of the United Nations (adopted and entered into force 16 October 1945), 40 American Journal of International Law, No 2 Supplement, 76, art I (FAO Constitution) http://​w ww.fao.org/​3/​a-​mp046e.pdf (last accessed 21 December 2016). 13   ibid preamble. 14   Agreement between the United Nations and the Food and Agriculture Organization of the United Nations (adopted and entered into force 3 February 1947) 1 UNTS 208, cf Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945)  https://​treaties.un.org/​doc/​publication/​ UNTS/​Volume%201/​v1.pdf (last accessed 28 February 2018), arts 57 and 63. 15   Agreement between the United Nations and the Food and Agriculture Organization of the United Nations (n 14), art V(2)(b). 16   Kerstin Mechlem, ‘Food and Agriculture Organization of the United Nations (FAO)’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2016) opil. ouplaw.com/​home/​EPIL (last accessed 21 December 2016).



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The main functions of the FAO include: • collecting, analysing, and disseminating information and statistics to its members • developing international instruments, norms, and standards • providing advice and capacity building for policy-​makers • contributing to emergency and post-​emergency assistance at member states’ request, through its global network of experts and • assisting member states and the international financing institutions with the programming of their investments in agriculture.17 Importantly, the term ‘agriculture’ includes fisheries and marine products.18 Consequently, the FAO is competent to deal with both marine and inland capture, as well as aquaculture.

1.2.1 Membership The FAO has 194 member states and one member organization (EU). In 1991 the FAO opened for membership of regional economic integration organizations. The European Union (EU) was admitted to the FAO on the basis of this amendment.19 The FAO is one of the largest specialized agencies of the UN. Consequently, the FAO (together with the UN) provides for a global/​universal arena for dealing with fisheries issues.20

1.2.2 Structure The FAO has three main bodies, namely the Conference, the Council, and the Director-​General.21 The Conference meets biannually to determine the policy of the FAO, to approve the budget, and exercise other powers conferred on it by the FAO Constitution.22 All FAO members are represented in the Conference. The Council consists of forty-​nine member states, which serve three-​year rotating terms. It is in charge of the FAO’s activities between the sessions of the Conference and functions delegated to it by the Conference.23 Both the Conference and the Council are competent to establish commissions under Article VI of the constitution to advise on formulation and implementation of policies. They may approve and submit conventions to the member states concerning food and agriculture for ratification.24 Consequently, the FAO is not competent to adopt decisions directly binding on its member states. The Council has established several sub-​committees, including the Fisheries Committee, the Forestry Committee, the Agriculture Committee, and the World Food Security Committee. The Fishery Committee (COFI), established in 1965

18   FAO Constitution (n 12), art I.  ibid.   ibid art II(3) and (4). 21   FAO Constitution (n 12), arts III, IV, and VII. 24   ibid art XIV.

17

19

20

  Harrison (n 8) 204–​05. 22   ibid art IV(1).

23

  ibid art V(3).

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under Article V of the FAO Constitution, is open to all member states.25 It was established in recognition of a need for coordination of international fisheries.26 The two main functions of the COFI are to review the work programme of the FAO and to conduct reviews of international fishery problems and assess possible solutions, by states, the FAO, and other inter-​governmental organizations. Further, it may consider preparing and submitting an international convention to the member states on fisheries issues.27 The COFI has established two sub-​committees, on trade in fish28 and on aquaculture.29 In addition to the FAO, the COFI is the only global inter-​governmental forum, which is competent to consider issues related to fisheries and aquaculture.30 The third main organ is the Director-​General. He or she is head of the FAO secretariat, which is organized into eight departments, including the fisheries and sustainable development departments. The technical guidelines on responsible fisheries to be addressed below are developed through these departments. In the following, two of the main functions of the FAO within the marine fishery sector will be reviewed. First, in section 1.3 the role of the FAO as a provider of data and information will be addressed, while its role in developing, confirming, and ensuring the implementation of norms will be investigated in section 1.4. The contributions of the FAO to oceans governance is increasingly happening through interaction with other international bodies such as the UN, the International Maritime Organization (IMO), the Convention on International Trade in Endangered Species (CITES), and the World Trade Organization (WTO). This aspect will be analysed in section 1.5 before summing up in section 1.6.

1.3  Collecting, Analysing, and Disseminating Information and Statistics to Its Members Information and knowledge is essential to ensuring conservation and sustainable use of living marine resources. One of the main tasks of the FAO is to collect statistics and other information, process this knowledge, and share it with its member states. The FAO may be described as a clearing house for fisheries-​related information and data. This function will enable the FAO and its member states then to assess trends in the status of fisheries and the implementation by its member states of their obligations,

25   General Rules of the Organization, Basic Texts of the Food and Agriculture Organization of the United Nations Volumes I and II, 2015 edn, Rule XXX(1) http://​w ww.fao.org/​3/​a-​mp046e.pdf (last accessed 21 December 2016). 26   Judith Swan and Benedict P Satia, ‘Contribution of the Committee on Fisheries to Global Fisheries Governance 1977–​1997’ FAO Fisheries Circular No 938 (FAO 1998)  A:  The Committee on Fisheries (COFI)—​Establishment, Functions and Activities www.fao.org/​docrep/​X0152E/​X0152E00.htm (last accessed 21 December 2016). 27   General Rules of the Organization (n 25), Rule XXX (6). 28  The Sub-​ committee on Fish Trade www.fao.org/​fishery/​about/​cofi/​trade/​en (last accessed 21 December 2016). 29   The Sub-​committee on Aquaculture is established by the COFI on the basis of Rule XXX(10) (n 20) www.fao.org/​fishery/​about/​cofi/​aquaculture/​en (last accessed 21 December 2016). 30   Pulvenis (n 9) 124.



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7

and if necessary take measures individually or collectively to address challenges and threats to the conservation of living marine resources. Perhaps the most important and well-​k nown report of the FAO analysing and disseminating data and information is the bi-​annual The State of World Fisheries and Aquaculture (SIOFA) prepared and published by the Fisheries and Aquaculture Department of the FAO.31 Traditionally, SIOFA has included information on by-​catch and discards, and status of marine fisheries, as well as outlook for the coming years. According to the latest South Indian Ocean Fishery Agreement (SIOFA), the world catches have stabilized at around 90 million tons. Fish stocks within safe biological limits have been reduced from 90 per cent to 68.6 per cent. The SIOFA report has been extended to include information32 on inter alia the relevant targets under the sustainable development goals (SDG No 14: Conserve and sustainably use the oceans, seas and marine resources for sustainable development). The report will also include information on the implementation of the Code of Conduct for Responsible Fisheries, as well as on the implementation of the Paris Agreement as relevant to the oceans. The importance of this information will be addressed in section 1.4. The FAO is responsible for cooperating on several databases. One type provides information on fisheries-​relevant statistics:  global catches33 and trade with fish.34 This information is provided through cooperation with other regional and global bodies. A second type, the fisheries and resources monitoring system, provides information on the status of particular stocks.35 The third type of database provides information relevant for assessing the implementation of and compliance by states with FAO agreements and guidelines. The FAO has set up an inventory of fisheries measures adopted for vulnerable marine ecosystems in areas beyond national jurisdiction.36 It provides insight into the implementation of UN General Assembly (UNGA) resolutions and FAO guidelines, which will be presented in section 1.4. Databases have also been set up to inform on the implementation of the FAO International Plan of Action on Sharks.37 In the implementation of Article VI, in the 1993 Compliance Agreement,38 there is a work on setting up a global record of fishing vessels licensed to fish on the high seas.39 With the entry into force of the Port State Measures Agreement, the FAO has established a 31   The State of World Fisheries and Aquaculture (SIOFA) http://​w ww.fao.org/​fishery/​sofia/​en (last accessed 21 December 2016). 32   The State of World Fisheries and Aquaculture 2016 (n 31) ii–​iii. 33  Global Capture Production 1950–​2014 www.fao.org/​fishery/​statistics/​global-​capture-​production/​ query/​en (last accessed 21 December 2016). 34   Globefish—​Analysis and information on world fish trade http://​w ww.fao.org/​in-​action/​globefish/​ en/​(last accessed 21 December 2016). 35   Fisheries and Resources Monitoring System (FIRMS) http://​firms.fao.org/​firms/​en (last accessed 21 December 2016). 36  Vulnerable Marine Ecosystems www.fao.org/​in-​action/​v ulnerable-​marine-​ecosystems/​en/​ (last accessed 21 December 2016). 37   International Plan of Action for Conservation and Management of Sharks, Database of Measure http://​w ww.fao.org/​ipoa-​sharks/​database-​of-​measures/​en/​ (last accessed 21 December 2016). 38   Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (adopted 24 November 1993, entered into force 24 April 2003) 2221 UNTS 120 (Compliance Agreement). 39   FAO High Seas Authorization Record http://​w ww.fao.org/​fishery/​collection/​hsvar/​en (last accessed 21 December 2016).

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database with information on measures taken by states in respect of foreign-​flagged vessels visiting their ports.40 The FAOLEX is a database with information on national legislation, regulations, and policies, including on fisheries.41

1.4  Forum for Developing International Instruments, Norms, and Standards In the wake of the adoption of the 1982 UNCLOS, the FAO undertook a (stronger) role in coordinating discussions on management of fisheries.42 Several international meetings and conferences on fisheries management under the auspices of the FAO have been held in the following decades producing legal and policy documents. Kaye43 has argued that they have had a normative influence on the member states. The 1984 World Conference on Fisheries Management and Development was aimed at promoting development of the fisheries under UNCLOS and in particular to assist developing countries. The Conference adopted a strategy with programmes of work. The section of the strategy on management has been described as ‘unremarkable’.44 At the beginning of the 1990s there was recognition that fish stocks were under growing pressure.45 In the following years the work of the FAO was influenced by what Pulvenis46 has described as ‘[t]‌he convergence between these two currents’. He referred to the interaction between international environmental law and law of the sea, which has stimulated the FAO to develop ‘[a] coherent, comprehensive and growing body of rules, principles and standards applicable to fisheries and aquaculture’. The FAO/​Netherlands Conference on Agriculture and the Environment, convened in 1991, developed the sustainable development concept in regard to natural resources.47 The conference agreed that: ‘[S]uch development (in agriculture, forestry and fisheries sectors) conserves land, water, plant and animal genetic resources and is environmentally non-​degrading, technically appropriate, economically viable and socially acceptable’.48 The Cancún Declaration of the 1992 FAO International Conference on Responsible Fisheries called for drafting of an international Code of Conduct for Responsible Fisheries.49 Introducing the concept of responsible fishing, the Code was, according to the Declaration, inter alia to be based on the principle of sustainable use of living

40  Database on Port State Measures (Port-​Lex)  http://​w ww.fao.org/​fishery/​psm/​collection/​en (last accessed 21 December 2016). 41  FAOLEX http://​faolex.fao.org/​faolex/​index.htm (last accessed 21 December 2016). 42   Stuart Kaye, International Fisheries Management (Kluwer Law International 2001) 205. 43 44 45  ibid 206.  ibid 208.   Swan and Satia (n 26): B Trends and issues 1977–​1997. 46   Pulvenis (n 9) 116–​17. 47  D J Doulman and J Swan, ‘A Guide to the Background and Implementation of the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing’ FAO Fisheries and Aquaculture Circular No 1074 (FAO 2012) 2. 48  ibid. 49   J F Caddy and R C Griffiths, ‘Living Marine Resources and their Sustainable Development: Some Environmental and Institutional Perspectives’ FAO Fisheries Technical Paper No 353 (FAO 1995) Annex V www.fao.org/​docrep/​0 03/​v5321e/​V5321E11.htm (last accessed 21 December 2016).



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marine resources and to include requirements on selective gear to reduce by-​catch and the use of area-​based measures to protect the marine habitats. The Cancún Declaration also called for cooperation on means and mechanisms to ensure responsible fisheries on the high seas. It specifically called for measures to deter the reflagging and cooperation to prevent what was described as illicit fishing. The Cancún Declaration provided an important background for the 1992 UN Conference on the Environment and Development (UNCED) held in Rio.50 The 1992 FAO Technical Consultation on High Seas Fisheries was called to address the issues raised in Cancún and start development of a Code of Conduct for Responsible Fisheries.51 There was agreement to fast-​track the regulation of the reflagging issue owing to concern over increased unregulated fishing on the high seas, that is, fishing conducted by vessels flying the flag of states not members of the competent regional fisheries body (RFB). Vessel-​owners reflagged their vessels to non-​member states to avoid having to comply with the conservation and management measures agreed through the RFB. This led to the speedy adoption of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement).52 The 1995 FAO Ministerial Conference on Fisheries resulting in the Rome Consensus on World Fisheries was the follow-​up by the FAO of UNCED.53 The Rome Consensus (again) urged states and international organizations to take measures inter alia to reduce fishing to sustainable levels and to reduce discards and by-​catch habitats. The Rome Consensus also supported the ongoing negotiations on the Code of Conduct, which was adopted by the FAO Conference later the same year. Four years later, in 1999, the FAO Ministerial Meeting on Fisheries adopted the Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries.54 Importantly, the member states committed to develop a plan of action to deal with what was described as IUU fishing, to be coordinated between states, the FAO, RFBs, and other international agencies such as IMO. A ministerial meeting held in 2005 emphasized the need for national and regional plans of action to deter IUU fishing and highlighted issues such as use of trade-​related measures, the reduction of overcapacity, and the regulation of transhipment.55 In contrast to earlier conferences, the 2001 Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem concentrated on more substantive issues. The 50   Charlotte de Fontaubert and Indrani Luchtman, with David Dowries and Carolyn Deere, Achieving Sustainable Fisheries: Implementing the New International Legal Regime (IUCN 2003) 105. 51  David Balton, ‘The Compliance Agreement’ in Ellen Hey (ed), Developments in International Fisheries Law (Kluwer Law International 1999) 38; Kaye (n 42) 212. 52   Compliance Agreement (n 38). 53  Rome Consensus on World Fisheries, adopted by the FAO Ministerial Conference on Fisheries (Rome 14–​15 March 1994)  http://​w ww.fao.org/​docrep/​0 06/​AC441E/​AC441E00.HTM (last accessed 21 December 2016). 54   The Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries, adopted by the FAO Ministerial Meeting on Fisheries (Rome 10–​11 March 1999) www.fao.org/​docrep/​ 005/​X 2220E/​X 2220E00.htm (last accessed 23 December 2016). 55  The 2005 Rome Declaration on Illegal, Unreported and Unregulated Fishing, adopted by FAO Ministerial Conference on Fisheries (Rome 12 March 1995)  ftp://​ft p.fao.org/​fi/​document/​ministerial/​ 2005/​iuu/​declarationpdf (last accessed 21 December 2016).

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objective of the conference was ‘[t]‌o review the best available knowledge on the marine ecosystem issues, to identify means by which ecosystem considerations can be included in capture fisheries management’. Under the resulting Reykjavik Declaration,56 the states committed to incorporate ecosystem consideration in fisheries management, as part of implementation of the Code of Conduct. Ecosystem consideration implied ‘[i]ncreased attention to interactions, such as predator-​prey relationships, among different stocks and species of living marine resources’. Further, it also involved prevention of effects of non-​fisheries activities on the marine ecosystems and fisheries. The ecosystem considerations had institutional implications, such as the need for cooperation between regional fisheries management organizations and regional bodies responsible for conserving the marine environment. The 2009 FAO Port State Measures Agreement57 was negotiated on the basis of a technical consultation between representatives of member states. The agreement was initiated at the 2006 UN Fish Stocks Agreement Review Conference, to be built on a model scheme developed by the FAO and its International Programme of Action on IUU fishing.58 This reflects a trend of the recent years where there is closer cooperation and interaction between the FAO and other inter-​governmental organizations, which is to be addressed below under section 1.5. This has been done through references to and support of FAO initiatives in UN resolutions, such as the 2002 Johannesburg Declaration, where states were urged to implement the Code of Conduct for Responsible Fisheries, the International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA on IUU fishing) and the ecosystem approach, with reference to the Reykjavik Declaration.59 Even during the early 1990s there were already clearly interactions between the instruments developed through the FAO and the Fish Stocks Agreement negotiated through the UN.60 As part of its strategic objective on making agriculture, forestry, and fisheries more productive and sustainable,61 the FAO has launched in 2014 what it describes as the Blue Growth Initiative.62 It is defined as ‘Sustainable growth and development emanating from economic activities using living renewable resources of the oceans, wetlands and coastal zones that minimize environmental degradation, biodiversity loss 56   Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem, The Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem Appendix I, C 2001/​INF/​25 http://​w ww.fao.org/​ docrep/​meeting/​0 04/​Y2211e.htm (last accessed 21 December 2016). 57  Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (adopted 22 November 2009, entered into force 5 June 2016) [2016] ATS 21 (Port State Measure Agreement). 58   ‘Report of the Review Conference on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks’ (5 July 2006) UN Doc A/​ Conf. 210/​2006/​15, para B.43(d) https://​documents-​dds-​ny.unorg/​doc/​U NDOC/​GEN/​N06/​422/​95/​PDF/​ N0642295.pdf?OpenElement (last accessed 21 December 2016). 59   ‘Plan of Implementation of the World Summit on Sustainable Development’ World Summit on Sustainable Development (Johannesburg 26 August–​4 September 2002) (4 September 2002) UN Doc A/​ Conf.199/​20, paras 30 and 31c, www.un-​documents.net/​jburgplnhtm (last accessed 22 December 2016). 60   Balton (n 51) 43. 61  FAO Conference, ‘Reviewed Strategic Framework’ (Rome 15–​22 June 2013)  C/​2013/​7, Strategic Objective 2. 62   FAO, ‘Report of the Thirty-​first Session of the Fisheries Committee’ (Rome 9–​13 June 2014) FAO Doc FIPI/​R1101/​EN, paras 31–​33.



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and unsustainable use of aquatic resources, and maximize economic and social benefits.’63 Thus, the FAO is focusing on the balancing of economic growth with improved livelihood, social security, and secure supply of food, more than ensuring protection of the marine environment.

1.4.1 The normative influence of the FAO In the following sub-​sections, three concepts or principles either introduced by or detailed through the work of the FAO will be presented. First, they involve the introduction of norms originating from environmental law implying greening of fisheries law. Secondly, they address the major concern in fisheries law: lack of implementation of and compliance with global, regional, and national legislation, causing overfishing and other negative impacts on the marine environment. Even if it is underlined that these concepts are developed within the framework of the UNCLOS, the contribution of the FAO to these concepts has influenced and developed ocean governance. They include the precautionary approach, ecosystem approach to fisheries management, and IUU fishing.

(a) The precautionary approach The concept, originating in national and international environmental law, was introduced at the 1992 Technical Consultation on High Seas Fisheries.64 The precautionary approach or principle, originally developed to deal with pollution, met with scepticism. States were concerned that the precautionary approach did not lead to a moratorium and wanted to develop the concept, focusing on the practical implications. The precautionary approach also met with scepticism at the 1992 UN Conference on Environment and Development but was included as principle 15 of the Rio Declaration. The FAO provided background information on the precautionary approach to the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks.65 The precautionary approach was later included both in the Fish Stocks Agreement66 and in the FAO Code of Conduct for Responsible Fisheries,67 both adopted in 1995. The FAO has adopted a series of technical guidelines aimed at assisting member states

63   FAO, ‘FAO Contribution to Part I of the Report of the Secretary-​General on Oceans and the Law of the Sea, submitted pursuant to General Assembly Draft Resolution A/​69/​L .29’ (28 January 2015) 7 www. unorg/​depts/​los/​general_ ​assembly/​contributions_ ​2015/​FAO.pdf (last accessed 22 December 2016). 64   Kaye (n 42) 212–​13. 65   ‘The Precautionary Approach to Fisheries with Reference to Straddling Fish Stocks and Highly Migratory Fish Stocks’ UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (New York 14–​31 March 1994), UN Doc A/​Conf.164/​INF/​8 (26 January 1994) http://​w ww.unorg/​depts/​ los/​fish_​stocks_​conference/​fish_​stocks_​conference.htm (last accessed 22 December 2016). 66   Agreement for the Implementation of Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 88 (Fish Stocks Agreement) (FSA), art 5(c) and art 6. 67   FAO, ‘Report of the Conference of FAO Twenty-​eighth Session (Rome 21–​31 October 1995) Item I, para 26. FAO Code of Conduct for Responsible Fisheries (CCRF), arts 6.5 and 7.5 www.fao.org/​docrep/​ 005/​v 9878e/​v 9878e00.htm (last accessed 22 December 2016).

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and RFBs in implementing the Code. They include guidelines on the application of the precautionary approach to marine fisheries.68 States are encouraged under UNGA resolutions on sustainable fisheries to apply the precautionary approach, taking into account the guidelines developed by the FAO.69 The fact that the UN Fish Stocks Agreement includes similar provisions on the precautionary approach and that the UNGA refers to the FAO instruments as relevant in interpreting and applying the precautionary approach, strengthens their legitimacy.

(b) Ecosystem approach to fisheries management The above-​mentioned 2001 Reykjavik Declaration underlined the importance of including ecosystem considerations in fisheries management. The Code of Conduct for Responsible Fisheries does not explicitly refer to an ecosystem approach or ecosystem-​based management. One of its objectives is ‘[t]‌o promote protection of living aquatic resources and their environments and coastal areas . . .’.70 Several of the general principles implies a requirement to include ecosystem considerations in fisheries management, such as the maintenance of diversity of fishery resources and conservation of non-​target species belonging to the same ecosystem.71 Further, the principles regarding development and application of selective and environmentally safe fishing gear and protection of critical fisheries habitats are directed at including ecosystem-​ based considerations in fisheries management. The concept of an ecosystem approach to fisheries management was developed in 2003 through one of the technical guidelines aimed at assisting states in implementing the Code of Conduct.72 In addition to the Code of Conduct, the guidelines also follow the call of the 2002 Johannesburg Declaration to develop an ecosystem approach. Further, the work of the FAO was influenced by the Conference of the Parties under the Convention on Biological Diversity,73 which introduced the ecosystem approach in 1995 and had developed the concept further at its subsequent meetings.74 The purpose of the technical guidelines was to translate the concept into operational guidelines. An ecosystem approach to fisheries management is defined as:

 FAO, ‘Precautionary Approach to Capture Fisheries and Species Introduction’ FAO Technical Guidelines for Responsible Fisheries No 2 (FAO 1996) http://​w ww.fao.org/​3/​a-​w3592e.pdf (last accessed 22 December 2016). 69   See eg ‘Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments’, UN Doc UN A/​R ES/​70/​75 (22 February 2016), para 11. 70 71   CCRF, art 2(g).   CCRP, arts 6.2, 6.6, and 6.8. 72   FAO Fisheries Department, ‘The Ecosystem Approach to Fisheries’ FAO Technical Guidelines for Responsible Fisheries No 4 Suppl 2 (FAO 2003) www.fao.org/​3/​a-​y4470e/​index.html (last accessed 23 December 2016). 73   Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 143 (CBD). Under art 23 the Conference of the Parties is competent to take action necessary for the achievement of the purposes of the Convention. 74   Decision of the Conference of the CBD II/​8 Preliminary consideration of components of biological diversity particularly under threat and action which could be taken under the Convention, UNEP/​CBD/​ COP/​2/​19. 68



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An ecosystem approach to fisheries strives to balance diverse societal objectives, by taking into account the knowledge and uncertainties about biotic, abiotic and human components of ecosystems and their interactions and applying an integrated approach to fisheries within ecologically meaningful boundaries.75

Similar to the precautionary approach, several UNGA resolutions have endorsed the ecosystem approach and encouraged states to apply the concept, by taking into account the guidelines adopted by the FAO.

(c) IUU fishing The concept of ‘illegal, unreported and unregulated fishing’ or IUU fishing originates from the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR).76 However, the concept was developed and expanded through the work of the FAO. Measures to prevent IUU fishing are now included in global, regional, and national policies and legislation. This includes the 2009 FAO Port State Measures Agreement77 and different measures adopted by regional fisheries management organizations (RFMOs).78 The problems of IUU fishing were introduced to the FAO through the COFI meeting in February 1999.79 The same year, the FAO Ministerial Meeting on Fisheries adopted the Rome Declaration on the Code of Conduct for Responsible Fisheries.80 The meeting raised concerns about growing numbers of IUU activities, as well as fishing by so-​called flags of convenience. The ministers agreed to develop a global plan of action to deal with IUU fishing activities, to implement the Code of Conduct for Responsible Fisheries. Following consultations with RFMOs and national governments, an FAO expert consultation on IUU fishing was convened charged with drafting the text of a draft plan of action, which was further developed through FAO technical consultations and adopted by the COFI in 2001.81 The IPOA on IUU fishing82 has been supplemented by a legally binding instrument (the Port State Measures Agreement) and by voluntary guidelines for flag state performance.83 Work ongoing within the FAO on developing a

  FAO, ‘The Ecosystem Approach to Fisheries’ (n 72) 6.   Pulvenis (n 9), 119; Mary Ann Palma, Martin Tsamenyi, and William Edeson, Promoting Sustainable Fisheries: The International Legal and Policy Framework to Combat Illegal, Unreported and Unregulated Fishing (Martinus Nijhoff 2010) 26–​28. CCAMLR is established under art VII of the Convention on the Conservation of Antarctic Marine Living Resources (adopted 20 May 1980, entered into force 7 April 1982) 1329 UNTS 48. It is competent to adopt conservation measures in the Antarctic Treaty Area under art IX. 77 78   Port State Measures Agreement (n 57).   Palma, Tsamenyi, and Edeson (n 76) 204–​36. 79  ibid 29. 80  FAO, ‘The Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries’ (n 54). 81   Palma, Tsamenyi, and Edeson (n 76) 32–​34. 82   International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (Rome 2001) www.fao.org/​fishery/​ipoa-​iuu/​en (last accessed 22 December 2016). 83   FAO, ‘Voluntary Guidelines for Flag State Performance’, endorsed by COFI (Report of the Thirty-​ first Session of the Committee on Fisheries, 9–​13 June 2014, para 37) www.fao.org/​publications/​card/​en/​ c/​1905a0ab-​0396-​460c-​aeb5-​1badf6ca83ba/​ (last accessed 22 December 2016). 75 76

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global record on fishing vessels, transport, and supply vessels will be a further measure to prevent IUU fishing.84 The latter was initiated through the 2005 Rome Declaration on IUU Fishing.85 The Declaration also called for the use of market-​ related measures (eg catch documentation schemes) and for addressing the economic incentives (eg different forms of subsidies) that lead to IUU fishing. These issues will be addressed below as they involve interaction with other legal regimes. The work of the FAO on IUU fishing has been endorsed by the UNGA Sustainable Fisheries resolutions: states are urged to take all necessary steps to implement the IPOA on IUU fishing.86

1.4.2 FAO legal and policy instruments The FAO has contributed to ocean governance and the development of international rules and standards through three major instruments and by the establishment of RFBs. These instruments will be presented in this section; two of them are treaties (the Compliance Agreement and the Port State Measures Agreement) and the third consists of non-​legally binding guidelines (the Code of Conduct for Responsible Fisheries). They are presented chronologically.

(a) Compliance Agreement The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (the Compliance Agreement)87 was developed in response to the inability or unwillingness of states to regulate the activities of vessels flying their flag while fishing on the high seas.88 This was inter alia caused by fishing vessels being reflagged to states that were not members of the relevant RFMO, which were not bound by conservation and management measures. It entered into force in 2003 and has at present forty state parties.89 As correctly pointed out by Balton,90 the objective of the Compliance Agreement is to specify the duties of flag states when operating in high seas fisheries. Under Article III(1) of the Compliance Agreement, the state party is obligated to ensure that vessels flying its flag are not ‘undermining the effectiveness’ of measures adopted through RFMOs. The obligation is applicable to member states and non-​member states alike. However, the Compliance Agreement stops short of defining what constitutes ‘undermining’. Vessels are not to fish on the high seas unless they have been licensed to fish there by their flag state party (Article III(2)). The flag state party is required to have a record of fishing vessels licensed to fish on the high seas (Article IV). Such information must   FAO, ‘Report of the twenty-​seventh session of the Fishery Committee’ (Rome, 5–​9 March 2007) FIEL/​ 839/​EN, para 70. For an overview of the ongoing work see www.fao.org/​fishery/​global-​record/​en (last accessed 22 December 2016). 85   The 2005 Rome Declaration on Illegal, Unregulated and Unreported Fishing (n 55) para 4. 86 87   UNGA Res 70/​75 (22 February 2016), para 59.   Compliance Agreement (n 38). 88   Balton (n 51) 34–​35. 89   The status of the Compliance Agreement is available at http://​w ww.fao.org/​legal/​treaties/​treaties-​ under-​article-​x iv/​en/​ (last accessed 22 December 2016). 90   Balton (n 51) 33. 84



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be shared with the FAO (Article VI). A  state party shall not issue licences to fish on the high seas unless it is able effectively to exercise its responsibilities under the Compliance Agreement (Article III(3)). The Compliance Agreement includes measures to exclude vessels that have been involved in activities undermining the effectiveness of the conservation and management measures applicable to the high seas: a state party shall not issue fishing licences to vessels that under the registry of another state have been involved in activities undermining the effectiveness of international conservation and management measures (Article III (5)). The flag state party must ensure that vessels licensed to fish on the high seas provide necessary information to ensure that they comply with their obligations (Article III (7)). In reality, the flag state party is required to have a mandatory reporting scheme for high seas fisheries. Further, the flag state party is required to take enforcement measures and impose sanctions in regard to vessels violating the regulations of the Compliance Agreement (Article III(8)). The Compliance Agreement includes a provision on port state control where the port state party is required to report to the flag state party where there are reasonable grounds for believing that a vessel has been involved in undermining conservation and management measures agreed for the high seas (Article V). The Compliance Agreement should not be viewed in isolation. Its norms have been incorporated in the Code of Conduct and are reflected in the 1995 UN Fish Stocks Agreement.91 The latter follows the trend in specifying the obligations of flag states: they are required to take several specific measures to regulate the fishing activities of their vessels to ensure that they do not undermine the effectiveness of the measures of the relevant RFMO (Article 18). Further, the flag states are required to ensure compliance with these measures through enforcement and imposing of penal and other sanctions in cases of violations (Article 19). The obligations of the port state under the Compliance Agreement have been further developed in the Fish Stocks Agreement (Article 23). The port state has a clear duty to take measures in respect of foreign-​flagged fishing vessels to promote the effectiveness of conservation and management measures of RFMOs. Such measures may include inspections of documents, gear, and catches. The port states may adopt regulations enabling them to ban landing and transhipments of catches taken in a manner that undermines the effectiveness of the conservation and management measures of RFMOs. The obligations of port states have been further specified and expanded through the 2009 Port State Measures Agreement to be addressed below.

(b) Code of Conduct for Responsible Fisheries The Code of Conduct for Responsible Fisheries (CCRF) was developed in the early 1990s as a response to concern regarding overexploitation of major fish stocks and damage to marine ecosystems caused by fishing, pollution, and habitat destructions.92 The CCRF is not a legally binding instrument but is described as   Fish Stocks Agreement (n 66).   Gerald Moore, ‘The Code of Conduct for Responsible Fisheries’ in Ellen Hey (ed), Developments in International Fisheries Law (Kluwer Law International 1999) 86–​88. 91

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voluntary (Article 1.1). This follows a tradition of the FAO to develop technical, non-​legally binding instruments.93 However, parts of it are based on the UNCLOS and provisions are made legally binding through treaties, such as the Compliance Agreement (Article 1.1). In fact, the Compliance Agreement is an integral part of the CCRF. The status of the CCRF has to be understood in the context of its objectives, which include establishing principles ‘[i]‌n accordance with relevant rules of international law  . . .’ for responsible fishing and to establish criteria for ‘[e]laboration and implementation of national policies . . .’ for responsible fishing (Article 2). The CCRF has effects as it provides for implementation of and practical application of international and national law.94 It reflects the need for effective implementation in fisheries management. The CCRF has four important characteristics.95 It is applicable to and provides for: • all fisheries, marine and inland, as well as aquaculture (Article 1.3) • all stages in fisheries:  from fisheries research (Article 12)  to fisheries management (Article 7), fisheries operations (Article 8) post-​harvest practices and trade (Article 11) • all stakeholders, including states, RFMOs, non-governmental organizations (NGOs), fishermen and industry (Article 1.3) • a holistic approach, as fisheries are considered within the ecosystem and the fisheries sector is approached in an integrated manner, within a broader policy, legal, and institutional framework. The CCRF consists of twelve articles. The first three deal with its nature and scope, its objectives, and its relationship with other international instruments. The fourth article is about the implementation, monitoring, and updating of the CCRF. COFI is to monitor its implementation and its effects on fisheries. The sixth article is, according to Moore,96 the central provision of the CCRF setting out nineteen principles for responsible fisheries, which include the precautionary approach, maintaining biodiversity, and the protection of critical habitats. The remaining articles concern the implementation of these principles not only in fisheries management and in the conduct of fisheries but also in aquaculture, coastal area management. and post-​harvest practices and research. The CCRF is supplemented by four IPOAs:97 • the International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries98

 ibid 90.   Tullio Treves, ‘The FAO Code of Conduct for Responsible Fisheries between Soft and Hard Law’ in Michael W Lodge and Myron H Nordquist (eds), Peaceful Order in the World’s Oceans: Essays in Honor of Satya N. Nandan (Brill Nijhoff Leiden 2014) 303–​304. 95 96   Pulvenis (n 9) 117.  ibid 89. 97  An overview of the IPOAs are available at www.fao.org/​fishery/​code/​ipoa/​en, (last accessed 22 December 2016). 98   The International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries (Rome 1999) www.fao.org/​fishery/​ipoa-​seabirds/​en (last accessed 22 December 2016). 93

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• the International Plan of Action for the Conservation and Management of Sharks99 • the International Plan of Action for the Management of Fishing Capacity100 and • the International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA–​IUU).101 In addition, the FAO has prepared a series of technical guidelines, which offer assistance to states in the implementation of the Code on matters concerning marine protected areas, precautionary approaches to capture fisheries, ecosystem approaches to fisheries (EAFs) and aquaculture, and fishing operations.102 These guidelines do not have any formal legal status.103 The COFI has endorsed several international guidelines including on by-​catch management and reduction of discards and on the management of deep-​sea fisheries on the high seas.104 The IPOAs and technical and international guidelines provide guidance to coastal states and flag states, as well as to RFMOs in the implementation of the CCRF. Space does not allow for detailed presentations of all these instruments. The FAO has been instrumental in operationalizing both the precautionary approach and the EAF, which is a way of including ecosystem considerations into more ‘conventional fisheries management’.105 The FAO International Guidelines for the Management of Deep-​Sea Fisheries in the High Seas106 were adopted in response to calls from the UNGA.107 The deep-​sea fisheries guidelines are applicable to fisheries for species that may sustain a low exploitation rate and to the use of fishing gear that is likely to contact the sea floor.108 The objective is to prevent significant adverse impacts on vulnerable marine ecosystems (VMEs) caused by overexploitation of species with low productivities and physical damage caused by fishing gear to habitats.109 VMEs are identified through criteria such as uniqueness and rareness, functional significance of the habitat, and fragility.110 When deep-​sea fishery is likely to provide significant adverse impacts in an area, the flag state and/​or the RFMO are recommended to undertake an impact

99  International Plan of Action for the Conservation and Management of Sharks (Rome 1999) www.fao.org/​fishery/​ipoa-​sharks/​en (last accessed 22 December 2016) (IPOA-sharks). 100   International Plan of Action for the Management of Fishing Capacity (Rome 1999) www.fao.org/​ fishery/​ipoa-​capacity/​en (last accessed 22 December 2016). 101   International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (n 82). 102   The FAO Technical Guidelines for Responsible Fisheries are available at www.fao.org/​fishery/​code/​ publications/​g uidelines/​en (last accessed 22 December 2016). 103   Moore (n 92) 89. 104   The FAO international guidelines are available at http://​w ww.fao.org/​fishery/​code/​g uidelines/​en. 105   Raphaël Billé, Lucien Chabason, Petra Drankier, Erik J Molenaar, and Julien Rochette, ‘Regional Oceans Governance:  Making Regional Seas Programmes, Regional Fishery Bodies and Large Marine Ecosystem Mechanisms Work Better Together’ UNEP Regional Seas Report and Studies No 196, 10. 106   FAO International Guidelines for the Management of Deep-​Sea Fisheries in the High Seas (FAO 2009) http://​w ww.fao.org/​3/​a-​i0816t.pdf (last accessed 22 December 2016). 107   UNGA Resolution 61/​105 (6 March 2007), paras 88–​91: cf paras 80 and 83. 108   FAO International Guidelines for the Management of Deep-​Sea Fisheries in the High Seas (n 106) para 8. 109 110   ibid para 6.   ibid paras 42–​46.

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assessment, to include risk assessment of likely impacts and mitigation, and management measures to prevent significant adverse impacts on VMEs and long-​term conservation of low-​productivity species.111 The FAO, in cooperation with RFMOs, has developed a database that provides an inventory of measures established in areas beyond national jurisdiction (ABNJs) applicable to deep-​sea fisheries.112 The IPOA for conservation and management of sharks was triggered by concern of overexploitation of populations of sharks as the fisheries moved seawards.113 The objective of the IPOA is to ensure their conservation and management for the long-​ term sustainable use. It is applicable to areas within and beyond national jurisdiction. States are advised to develop national plans of action for conservation and management of sharks applicable to vessels flying their flags conducting directed fishery for or catching shark as by-​catch. Further, they are to cooperate through regional or sub-​ regional fisheries bodies on regional plans of action. National and regional plans shall inter alia ensure that directed and non-​directed fishery for shark are sustainable and protective of critical habitats. The IPOA–​IUU was adopted in 2001 recognizing that a major cause of over­ exploitation lies in inadequate implementation, compliance, and enforcement of global and regional instruments. As we have seen, the IPOA–​IUU has had an impact on international fisheries law through the 2009 Port State Measures Agreement. IUU fishing has also become a key consideration in the practice of the RFMOs and is applicable to areas both within and beyond national jurisdiction. The definition of illegal fishing (IPOA–​IUU paragraph 3.1) is any activity within waters under national jurisdiction pursued by a foreign flagged vessel without permission of the coastal state or in contravention of its legislation. Illegal fishing on the high seas involves vessels flying the flag of a RFMO member that is in contravention of the conservation measures applicable to those members or of activities in violation of the commitments undertaken by cooperating non-​members. Unreported fishing (IPOA–​IUU paragraph 3.2) is defined as an activity undertaken in areas under national jurisdiction or in the area of competence of a relevant RFMO, which has not been reported or has been misreported in violation of its reporting procedures. Unreported fishing is normally considered on a par with illegal fishing. Unregulated fishing on the high seas (IPOA–​IUU paragraph 3.3.1) is carried out in the regulatory area of an RFMO by stateless vessels or by vessels flying the flag of non-​member states, which are not consistent with or contravene the measures of the RFMO. The definition of unregulated fishing has caused some controversies as the fishing activities of the non-​members are not necessarily in violation of international law.114 Any fishing in an area where there are no applicable conservation and management measures and where the fishing activity is in violation of conservation obligations also constitutes unregulated fishing (IPOA–​IUU paragraph 3.3.2).   ibid paras 42–​53.   FAO Vulnerable Ecosystem Database www.fao.org/​in-​action/​v ulnerable-​marine-​ecosystems/​en/​ (last accessed 22 December 2016). 113   IPOA-​Sharks (n 99). 114   Jens T Theilen, ‘What’s in a Name? The Illegality of Illegal, Unreported and Unregulated Fishing’ (2013) 28 International Journal of Marine and Coastal Law 542, 543. 111

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The objective of the IPOA–​IUU is to prevent, deter, and eliminate IUU fishing (paragraph 8). The IPOA–​IUU includes a range of measures to be taken by all states, flag states, coastal states, consumer states, and RFMOs. It does not, however, specify which measures are addressing illegal fishing and which are to prevent unregulated fishing. All states are requested to ratify the relevant treaties, to adopt necessary national legislation to prevent IUU fishing, and to cooperate on the issue. The IPOA–​ IUU advises flag states to take appropriate action to ensure that their vessels are not involved in IUU fishing. The measures to be taken by the flag states are to a large degree identical to those regulated in the Fish Stocks Agreement and the Compliance Agreement. The flag states should inter alia use their capacity and not permit vessels that have been involved in IUU fishing to fish or to reflag. As most of the IUU fishing is taking place within areas under national jurisdiction, the measures include effective monitoring, surveillance, and control of all fishing activities, use of licensing schemes for foreign fishing vessels, and refusal to license vessels with a history of IUU fishing. Port states should require vessels to apply for permission to enter their ports before arrival, including information on licence from flag state and on catches on board. The IPOA–​IUU does include other measures than the traditional law of the sea measures. States are encouraged to prevent export and import of catches caught by vessels involved in IUU fishing. Possible measures could include catch documentation schemes. The IPOA–​IUU underlines that these measures should be taken consistent with WTO law. Finally, RFMOs are important actors in preventing IUU fishing, not least by developing their functions as envisaged by the CCRF and the Fish Stocks Agreement. The RFMOs may also be involved in establishing trade-​related measures. Other FAO instruments supplement the IPOA–​IUU. They include the 2014 Voluntary Guidelines for Flag State Performance.115 In addition to setting out the basic principles for the exercise of effective flag state responsibility, these guidelines establish criteria for assessing the performance of the responsibility.116 The guidelines are directed at the flag states listing several types of measures available to ensure effective exercise of their responsibility, that is, the use of authorization, monitoring surveillance, and enforcement. The flag states should regularly undertake a self-​assessment based on the criteria. Initiated by the 2005 Ministerial Declaration on IUU Fishing,117 the FAO is in the process of establishing a voluntary global record of fishing vessels and other relevant vessels designed to identify vessels involved in fishing or fishing-​related activities.118 By providing information such as the identity of the vessel, its capacity and capability, owners, authorizations and history of IUU fishing, and the Global Record, facilitate for prevention of IUU fishing. Overall, the CCRF and its supplementing instruments provide a comprehensive set of norms specifying, supplementing, implementing, and developing international fisheries law and thereby the law of the sea. However, as pointed out by Pulvenis,119 the state of the world’s fisheries suggests that compliance with the CCRF has been poor. The CCRF provides for a relatively limited scheme to control its compliance. The FAO

  ‘Voluntary Guidelines for Flag State Performance’ (n 83) para 1, Statement of Purpose and Principles.   ibid paras 6–​37. 117   Rome Declaration on Illegal, Unreported and Unregulated Fishing (n 55) para 4. 118 119   Global Record (n 84).   Pulvenis (n 9) 118. 115 116

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is charged with monitoring the application and implementation of the CCRF and its effects on fisheries.120 This role is exercised through the COFI, which regularly reports on the progress in the implementation of the CCRF and related instruments. Recently, The State of World Fisheries and Aquaculture publication is included in the report.121 The progress report, based on questionnaires to member states, RFBs, and NGOs, provides a summary of measures taken by member states and RFBs to implement the CCRF and related instruments such as the IPOAs. Around half of the member states have responded to the questionnaire. The report does not provide information on the status of the implementation in individual states. Thus, the COFI seems to have a limited role in ensuring compliance with the CCRF.

(c) Port State Measures Agreement The objective of the 2009 FAO Port State Measures Agreement,122 which entered into force on 6 May 2016, is to prevent IUU fishing by the use of so-​called port state measures (Article 2). At present, the agreement has thirty-​nine state parties.123 The concept of IUU fishing originates from the IPOA–​IUU. Both the FSA and Compliance Agreement include port state measures, but the FAO Port State Measures Agreement includes obligations that are more specific. The measures to be taken by the port state are also directed at enforcing compliance with the agreed conservation and management measures for the high seas areas through RFMOs. This agreement includes provisions on port entry, the use of ports, and inspections and follow-​up. There are also provisions made for special requirements of developing states. The state parties must designate ports where foreign-​flagged fishing vessels may request permission to enter (Article 7). Before entering such ports, the vessels are required to submit an advanced request (Article 8), which must include information inter alia on fishing authorization (for example, period, area, gear, and catches), total catches on board, and catches to be landed. The information provided assists the port state party in determining if the vessel has been involved in IUU fishing (Article 9(1)). If the port state party has sufficient evidence that the vessel has been involved in IUU fishing, for example, if it has been listed by RFMOs for prior involvement in such fishery, the port state party is obligated to refuse entry to its ports (Article 9(4)). If a vessel is permitted to enter port, but its authorization to fish on the high seas is not valid or it is unable to confirm that the fish on board was caught in compliance with relevant RFMO conservation and management measures, it may be refused landing or transhipment of catches, and/​or services such as resupplying (Article 11). The Port State Measures Agreement does not exclude the port state from taking other measures consistent with

  CCRF, art 4.2.   COFI, ‘State of World Fisheries and Aquaculture and the Progress in the Implementation of the Code of Conduct for Responsible Fisheries and related Instruments’, Thirty-​second Session of the Fishery Committee (Rome 11–​15 July 2016) COFI/​2016/​2. 122   Port State Measures Agreement (n 57). 123   Status of the Port State Measures Agreement is available at www.fao.org/​fi leadmin/​user_​upload/​ legal/​docs/​037s-​e.pdf. Under art 29 of the agreement it entered into force 30 days after the deposit of the twenty-​fi fth approval/​ratification/​accession instrument. The agreement currently has 33 participants. 120 121



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international law. Arresting the vessel in port for fishing activities on the high seas would, however, violate the freedom of the high seas and the exclusive jurisdiction of the flag state. The port state is required to communicate with the flag state on these matters, and the flag state is obligated to take measures to investigate incidences where there are clear indications that a vessel has been involved in IUU fishing (Article 20). This agreement recognizes the special requirements of developing states (Article 21)  by requiring that other states provide assistance to develop capability, both legally and on capacity to comply with the obligations of the agreement. In any case, due regard must be given to ensure that developing states are not disproportionately burdened in the implementation of the obligations (Article 21(2)). This article suggests that the obligations may not be equally applied unless the capacity of developing countries is enhanced. Even if the agreement is not yet in force, its measures have been implemented at regional level through some of the RFMOs.

(d) FAO and regional fisheries bodies As part of its global mandate and in an effort to promote long-​term sustainable fisheries, the FAO has established regional fisheries bodies (RFBs). Some of them have advisory functions, established under Article VI(1) of the FAO Constitution.124 Other RFBs, established under FAO Constitution Article XIV(1), are competent to adopt binding decisions. They are better described as RFMOs. There are over forty RFBs worldwide.125 They are different in scope and with regard to their competence. While some are species specific (such as those addressing tuna species), others include all fish species within identified parts of the high seas and/​or areas under national jurisdiction. Some of them are established by the FAO. Some regional fisheries bodies have a more advisory (scientific or management) role. RFBs established by the FAO with an advisory role include: • the Fishery Committee for the Eastern Central Atlantic (CECAF)126 • the Western Central Atlantic Fishery Commission (WECAFC)127 • the South-​west Indian Ocean Fisheries Commission (SWIOFC).128 Whereas the areas of competence of CECAF and WECAFC also include the high seas, the competence of SWIOFC is applicable only to waters under national jurisdiction. RFMOs established by the FAO include: • the Asia-​Pacific Fisheries Commission (APFIC)129 • the General Fisheries Commission for the Mediterranean (GFCM)130 125   FAO Constitution (n 12).   Raphaël Billé and others (n 105) 31.  More information about CECAF www.fao.org/​fishery/​r fb/​cecaf/​en (last accessed 22 December 2016). 127   More information about WECAFC www.fao.org/​fishery/​r fb/​wecafc/​en (last accessed 22 December 2016). 128  More information about SWIOFC http://​w ww.fao.org/​fishery/​r fb/​swiofc/​en (last accessed 22 December 2016). 129   More information about APFIC www.fao.org/​fishery/​r fb/​apfic/​en (last accessed 22 December 2016). 130   More information about GFCM www.gfcm.org/​g fcm/​en or www.fao.org/​fishery/​r fb/​g fcm/​en (last accessed 22 December 2016). 124 126

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• the Indian Ocean Tuna Commission (IOTC)131 • the Regional Commission for Fisheries (RECOFI).132 It should be noted that some of these RFMOs primarily regulate fisheries within areas under national jurisdiction (APFIC and RECOFI), while IOTC is competent to regulate tuna. The FAO has been involved in establishing other RFMOs such as the SIOFA.133 Most RFMOs are established outside the framework of the FAO. As mentioned, FAO instruments such as the CCRP and IPOA–​IUU identify RFMOs as important instruments or tools in ensuring sustainable use of living marine resources and for preventing and eliminating IUU fishing. In the monitoring of the implementation of CCRP and other FAO instruments, the FAO has collected information from RFBs/​R FMOs. Further, it has undertaken a coordinating role by hosting meetings between the secretariats of the RFBs, including non-​FAO RFBs.134 The meetings have been informative where representatives of RFBs/​R FMOs have responded on issues on the agenda of COFI and where they discuss common challenges.135 Harrison argues that the FAO has had limited influence on the development of RFBs/RFMOs.136

(e) The relationship to other inter-​governmental bodies The work of the FAO inter-​relates with the activities of other inter-​governmental bodies. As mentioned earlier, the FAO interacts with RFBs/​R FMOs and the UN. The UNGA has, as noted through its sustainable fisheries resolutions, endorsed the CCRF, the IPOA–​IUU, and other FAO instruments and highlighted the importance of their implementation.137 The CCRF has been identified as a primary source in implementing the Fish Stocks Agreement, thus providing the FAO with a central role.138 Rice139 argues that this ‘[i]‌s an important empowerment of the agency . . .’. The UNGA Sustainable Fisheries resolutions have broadened their scope by asking or encouraging the FAO to develop further instruments (eg catch documentation schemes and the global record) or to provide information and data (eg on status on implementation of the IPOA-​Capacity).140

131   More information about IOTC www.iotc.org/​or www.fao.org/​fishery/​r fb/​iotc/​en (last accessed 22 December 2016). 132  More information about RECOFI www.fao.org/​fishery/​r fb/​recofi/​en (last accessed 22 December 2016). 133   Final Act of the Conference on the Southern Indian Ocean Fisheries Agreement (Rome, 7 July 2006) www.fao.org/​fi leadmin/​user_​upload/​legal/​docs/​035t-​e.pdf (last accessed 22 December 2016). 134   The reports of the bi-​a nnual meeting of the Regional Fishery Body Secretariats Network (RSN) are available at www.fao.org/​fishery/​topic/​18244/​en#RFB1 (last accessed 22 December 2016). 135   Report of the Fifth Meeting of the Regional Fisheries Body Secretariats Network (RSN-​5) (Rome, 7 and 13 June 2014) FIPI/​R1081, 2, www.fao.org/​3/​A-​I4210e.pdf (last accessed 23 December 2016). 136 137   Harrison (n 8) 232–​33.   See eg UNGA Res A/​R ES/​70/​75, paras 4, 11, and 55. 138   Jake Rice, ‘Evolution of international commitments for fisheries sustainability’ (2014) 71 ICES Journal of Marine Science 159. 139 140  ibid 160.   UNGA Res A/​R ES/​70/​75, paras 82–​86, 93, and 103.



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The FAO has been asked to provide advice to the UN on different occasions, such as on the precautionary approach during the negotiations on the Fish Stocks Agreement, as noted above. The organization is also on its own initiative involving itself in the UN process on development of a possible third UN Implementation Agreement, on conservation and sustainable use of marine biodiversity in ABNJs.141 The UNGA has underlined the importance of cooperation between the FAO and other UN agencies in the implementation of the different international programmes of action and the contribution of the FAO to the annual report of the UN Secretary General on sustainable fisheries.142 The IPOAs developed to operationalize the CCRF have clear linkages to other legal regimes as they include measures requiring cooperation and/​or some kind of coordination. The IPOA–​IUU involves the use of measures to strengthen the effective exercise of flag state responsibility, which is also a concern of the IMO of the UN. The IMO recognized that the lack of implementation of flag state obligations and reflagging are causes of IUU fishing.143 In 2000 the FAO and the IMO established a joint IMO/​FAO Ad hoc Working Group on IUU fishing and related matters.144 The three meetings of the working group have addressed two themes of common interest of the two organizations, including elements of effective flag state control and port state inspection.145 It has primarily functioned as a forum for the exchange of information. However, at the last meeting there were discussions on applying the IMO Ship Identification Number Scheme in the global record on fishing vessels to be developed through the FAO.146 The IPOA–​IUU for the Management of Fishing Capacity recommends that states shall adopt national plans of action and, if required, reduce capacity to ensure balance between capacity and available resources on a sustainable basis.147 They should also assess the possible impact of all factors, including subsidies on capacity and aim at reducing subsidies and other economic incentives that contribute to the build-​up of excessive fishing capacity.148 According to Young,149 the voluntary approach of the FAO has not been successful. It has not led to any reduction in subsidies. Therefore,

141   FAO, ‘FAO’s Work Relating to the Elements of a Draft Text of an International Legally-​Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction’ (Rome 11–​15 July 2016) COFI/​2016/​8/​Sup.1. 142 143   UNGA Res A/​R ES/​70/​75, para 199.   Palma, Tsamenyi, and Edeson (n 76) 32. 144  ibid 33. 145  There have been several meetings in an Ad Hoc Working Group between the two organizations: ‘Report of the Joint FAO/​IMO Ad Hoc Working Group On Illegal, Unreported and Unregulated Fishing and Related Matters’ FIIT/​R637; ‘Report of Second Session of the Joint FAO/​IMO Ad Hoc Working Group On Illegal, Unreported and Unregulated (IUU) Fishing and Related Matters’ FIRO/​ R1124; and ‘Report of the Third Session of the Joint FAO/​IMO Ad Hoc Working Group on Illegal, Unreported and Unregulated (IUU) Fishing and Related Matters’ FIAO/​R1152 JWG 3/​15. 146   ‘Report of the Third Session of the Joint FAO/​IMO Ad Hoc Working Group on Illegal, Unreported and Unregulated (IUU) Fishing and Related Matters’, FIAO/​R1152 JWG 3/​15, paras 17 ff, www.fao.org/​ 3/​a-​x9436e.pdf (last accessed 22 December 2016). 147   International Plan of Action for the Management of Fishing Capacity (n 100) para 21. 148   ibid paras 25–​26. 149   Margaret A Young, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (Cambridge University Press 2011) 90–​91.

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international attention was redirected to the WTO, which could provide a legal regime for reducing subsidies through the Agreement on Subsidies and Countervailing Measures.150 Talks on reducing subsidies in fisheries were introduced through the so-​ called Doha Round, and are still ongoing.151 Another interaction with WTO agreements may be through the use of catch documentation schemes, on which voluntary guidelines are being drafted by the FAO.152 The draft guidelines stipulate that any measures taken under the schemes should be consistent with the rights and obligations of states under WTO agreements.153 The listing of living marine species such as sharks by the CITES154 has been used as an alternative where measures taken by coastal states, RFMOs, or through the FAO have been considered inadequate.155 The IPOA-​Sharks suffers from inadequate implementation by member states.156 CITES signatories are mandated to ensure that international trade in animals and plants does not threaten their survival.157 The listing of marine living species has been criticized by other states for having an inadequate scientific basis and a lack of coordination with fisheries management regulations.158 CITES signatories are required to consult with relevant RFMOs on scientific data, and to coordinate measures before listing a species.159 The FAO and CITES Secretariat entered into a memorandum of understanding in 2006.160 CITES has also established cooperation with the International Whaling Commission and the CCAMLR.161 Under the memorandum, the FAO is invited to advise on the criteria for listing, CITES is to inform the FAO about proposals for listing, and the parties are to collaborate on ensuring adequate scientific and technical assessment of the proposals. Further, the FAO has committed to ensure that the proposals are subjected to scientific review, which are to be forwarded to the CITES state parties and to the greatest extent possible be taken into account. The criteria for listing have been developed in cooperation with the FAO. The FAO has established an expert advisory panel to assess the proposals submitted to CITES

150   Agreement on Subsidies and Countervailing Measures (adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 14. 151  See more information on WTO and its work on subsidies at www.wto.org/​english/​tratop_​e/​ rulesneg_​e/​fish_​e/​fish_​e.htm (last accessed 22 December 2016). 152   ‘Voluntary Guidelines for Catch Documentation Schemes’ Thirty-​second Session of the Fishery Committee (Rome 11–​15 July 2016), COFI/​2016/​3.1; Report of the 32nd Session of the Committee on Fisheries (Rome 11–​15 July 2016), C 2017/​23, paras 42–​51. 153   ‘Draft voluntary guidelines for catch documentation schemes’ para 6.1(a) in ‘Report of the Expert Consultation on Catch Documentation Schemes (CDS)’ (Rome 21–​24 July 2015)  FIPM/​R1120(En) Appendix D. 154   Convention on International Trade in Endangered Species of Wild Fauna and Flora (n 50). 155 156   Young (n 149) 139.  ibid. 157   CITES (n 50); Appendices I, II, and III https://​cites.org/​eng/​app/​appendices.php (last accessed 22 December 2016). 158 159   Young (n 149) 144–​45.   CITES (n 50), art XV(2)(b). 160  Memorandum of Understanding between the Food and Agriculture Organization of the United Nations (FAO) and the Secretariat of the Convention on International Trade in Endangered Species (CITES) https://​cites.org/​sites/​default/​fi les/​eng/​disc/​sec/​FAO-​CITES-​e.pdf (last accessed 23 December 2016). 161   Resolution Conf.12.4 Cooperation between CITES and the CCAMLR regarding trade in tooth fish http://​cites.org/​eng/​res/​12/​12-​04.php and Resolution Conf.11.4 Conservation of cetaceans, trade in cetacean specimens and the relationship with the International Whaling Commission http://​cites.org/​eng/​ res/​11/​11-​04.php (both last accessed 23 December 2016).



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for listing.162 According to the FAO, 100 commercially exploited marine species have been listed.163 The conferences on sustainable development organized by the UN during the 1990s and early 2000s identified sustainable fisheries as one of the components of sustainable development. The Earth Summit held in Johannesburg in 2002 concluded with several recommendations, including the maintenance of fish stocks at maximum sustainable yield, ratification of relevant legal treaties and agreements, and the implementation of the CRRF.164 It is recognized that fisheries management is an integrated part of conservation and management of the oceans.165 Destructive fishing practice is one of the causes of loss of marine diversity, which may be addressed by area-​based measures such as marine protected areas. Finally, the conference recommended the application of the ecosystem approach, referring to the Reykjavik Declaration on Responsible Fisheries in Marine Ecosystem, organized by the FAO. Ten years later, at the UN Conference on Sustainable Development in Rio (Rio+20), the recommendations of Johannesburg were repeated.166 The Rio+20 underlined the importance of dealing with the oceans, seas, and coastal areas as an integrated whole and further underlined the need to enhance action to manage fishing practices that have significant adverse effects on marine ecosystems.167 The FAO is seeking—​pursuant to the invitation included in the Convention on Biological Diversity (CBD)—​to integrate its instruments in implementing the Strategic Plan for Biological Diversity 2011–​2020,168 which includes the Aichi Biodiversity Targets.169 Several of the targets such as targets 6 and 11 are relevant for living marine resources. All fish stocks are, under target 6, to be harvested sustainably, applying ecosystem-​based approaches by 2020. Further, recovery plans for all depleted species should be in place and there shall be no significant adverse impacts on threatened species and VMEs. Target 11 stipulates that by 2020 10 per cent of coastal and marine areas should be conserved through representative systems of protected areas and other area-​based measures. The area-​based measures will aim at protecting areas of particular importance for biodiversity and ecosystem services. In 2000 the UN adopted the millennium development goals (MDGs) setting out general objectives and targets for sustainable development.170 All of the recommendations of previous UN conferences on sustainable development are acknowledged.171

162   FAO Expert Advisory Panel for the Assessment of Proposal to amend CITES appendices www.fao. org/​fishery/​cites-​fisheries/​ExpertAdvisoryPanel/​en (last accessed 23 December 2016). 163   Implications to fisheries—​FAO activities in relation to CITES www.fao.org/​fishery/​topic/​18146/​en (last accessed 22 December 2016). 164   ‘Plan of Implementation of the World Summit on Sustainable Development’ (n 59) para 31. 165   ibid para 32. 166   UN General Assembly Resolution 66/​288 The Future We Want, paras 168–​77. 167   ibid para 168. 168   Conference of the Parties to the Convention on Biological Diversity: Decision X/​2 The Strategic Plan for Biological Diversity 2011–​2020 and the Aichi Biology Targets, Annex (20 October 2010), UNEP/​ CBD/​DEC/​X /​2. 169   ibid para 16. Further information is available at www.fao.org/​biodiversity/​en/​ (last accessed 23 December 2016). 170   UNGA Resolution 55/​2 United Nations Millennium Declaration, paras 21 ff. 171   ibid para 11.13.

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MDG No 7 was titled ‘Ensure environmental sustainability’ and included targets to reverse loss of environmental resources and biodiversity, including to have a significant reduction in loss of biodiversity by 2010. The MDG is succeeded by the 2030 Agenda for Sustainable Development.172 The 2030 Agenda includes seventeen SDGs, of which SDG No 14 deals with life below water. Its objective is to conserve and sustainably use the oceans, seas, and marine resources. SDG No 14 includes several targets, to some degree overlapping with the Strategic Plan for Biological Diversity, referred to above, relevant for the work of the FAO, such as: • manage and protect marine and coastal ecosystems sustainably to avoid significant adverse impacts • regulate harvesting and end overfishing, IUU fishing and destructive fishing practices and implement science-​based management plans. The aim is to restore fish stocks in the shortest time feasible, at least to levels that can produce maximum sustainable yield as determined by their biological characteristics • at least 10 per cent of coastal and marine areas to be conserved • prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, eliminate subsidies that contribute to IUU fishing. This work is to be channelled through the WTO fisheries subsidies negotiations. All these targets are to be achieved by 2020. Each state is responsible for contributing to the targets, whereas there will be international funding available and UN agencies (such as the FAO) will assist.173 The achievement of the SDG is reviewed by the High-​ level Political Forum on Sustainable Development, on the basis of national reporting.174 The FAO will be responsible for monitoring some of the SDG indicators, including under SDG No 14, assisting the High-​level Forum.175 In addition to assisting the states and the High-​level Forum, the FAO has developed guidelines that may assist states in implementing SDG  No 14. They include guidelines on ecosystem approach to fisheries,176 on by-​catch and the reduction of discards,177 and on integration of fisheries into coastal area management.178 The FAO has adopted guidelines on area-​based measures such as the management of deep-​sea fisheries in the high seas,179 as referred to earlier and on marine protected areas.180   UNGA RES 70/​1 Transforming our world: the 2030 Agenda for Sustainable Development.   ibid paras 39–​46. 174  ibid para 47, UNGA Res 70/​299 Follow-​up and review of the 2030 Agenda for Sustainable Development at the global level. 175   ECOSIC Statistical Commission, ‘Report of the Inter-​Agency and Expert Group on Sustainable Development Goal Indicators’ E/​V N.3/​2016/​2/​Rev.1 http://​unstats.unorg/​unsd/​statcom/​47th-​session/​ documents/​2016-​2-​SDGs-​Rev1-​E .pdf (last accessed 23 December 2016). 176   FAO, ‘The Ecosystem Approach to Fisheries’ (n 72). 177   FAO, ‘International Guidelines on Bycatch Management and Reduction of Discards’ (Rome 2011) www.fao.org/​fishery/​code/​g uidelines/​en (last accessed 22 December 2016). 178  FAO, ‘Integration of fisheries into coastal area management’, FAO Technical Guidelines for Responsible Fisheries No 3 (Rome 1996) ftp://​ft p.fao.org/​docrep/​fao/​0 03/​W3593e/​W3593e00.pdf (last accessed 22 December 2016). 179   FAO, ‘International Guidelines for the Management of Deep-​Sea Fisheries in the High Seas’ (n 106). 180   FAO, ‘Marine Protected Areas and Fisheries’. FAO Technical Guidelines No 4 (Rome, 2011) www. fao.org/​docrep/​015/​i2090e/​i2090e00.htm (last accessed 22 December 2016). 172 173



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1.5 Summing Up As one of the few inter-​governmental organizations with almost universal participation of states, the FAO has a unique position in ocean governance. Whereas cooperation on conservation and management of living marine resources is organized at the regional level, the FAO provides a venue for more general governance of living marine resources. The presentation of the FAO has focused on some of the functions of the FAO. The technical assistance offered by the FAO to member states is important regarding their ability to adopt and implement fisheries legislation and policy consistent with FAO instruments. The role of the FAO as a kind of clearing house be underestimated. The collection and dissemination of data and relevant information enables the member states to assess the status of the living marine resources and the effectiveness of conservation and management policies. The global record will also enable states to have a more complete overview of vessels involved in fishing activities. The normative function of the FAO has been the main topic of this chapter. Important norms have come through the Code of Conduct for Responsible Fisheries, widening their application. It is done through incorporating legally binding norms such as from the Compliance Agreement. Further, the FAO has through different types of guidelines provided practical assistance for the implementation of these norms. Even if they are not legally binding, as Harrison181 argues, they have ‘[s]‌erved to crystallise international support for new principles  . . .’ to be applied in fisheries management. The measures promoted by the FAO recognize that it is necessary to apply measures other than the traditional measures to ensure sustainable use and conservation of living marine resources, such as catch documentation schemes, reduction of subsidies, and assessment of flag state performance. Three central concepts in international fisheries law has been introduced and/​ or developed by the FAO, including the precautionary approach, the ecosystem approach to fisheries, and IUU fishing. These concepts, as included or developed on the basis of CCRF, have been approved by the world community through the annual UNGA resolutions on sustainable fisheries and by several UN conferences on sustainable development. The FAO-initiated measures are also coordinated with the CBD, IMO, CITES, and WTO, as well as other inter-​governmental institutions. However, the FAO’s The State of World Fisheries and Aquaculture, the regular report of the FAO, suggests that the major parts of living marine resources are either fully utilized or overexploited. The main challenge in international fisheries is national implementation, which the FAO has limited resources at its disposal to address. The IPOA–​IUU identifies a series of relevant and important actors for implementation: flag states, coastal states, port states, and import and export states, as well as RFMOs. In the end, it is the willingness and ability of the member states that will be decisive.

181

  Harrison (n 8) 234.

2 The Work of the UNESCO-​IOC in Respect of Global Ocean Governance Peter Ehlers

2.1 Introduction 2.1.1 Ocean governance As an essential component of the earth system, playing an influential role for the climate and as valuable ecosystems, the seas and oceans are indispensable for human life and survival. The ‘blue economy’ is an important part of a healthy economy; it satisfies elemental needs, for example for food, natural resources, and energy supply, and as transport routes the seas are a fundamental basis for the worldwide exchange of goods. To achieve sustainable development, the growing use that is made of the seas requires a very careful weighing of the different user interests against one another and, particularly, against environmental concerns. At the same time, coastal areas have to be defended against marine threats, which may increase as a result of climate change. Therefore, a comprehensive management system is needed in order to ensure that an equilibrium is maintained. Such a concept is labelled by a modern magic word: ocean governance. Generally, ocean governance may be understood as the efforts, undertaken by states, international organizations, and other actors, to steer, control, and manage marine activities in accordance with the aims of sustainable development. Ocean governance has to be based on an appropriate international regulatory framework, which is mostly provided by United Nations Convention on the Law of the Sea (UNCLOS)1 and supplementing international agreements.2 But agreements alone are not sufficient. What is urgently needed is compliance with the agreed regulations by effective implementation and enforcement. In the light of new findings and insights, the regulations have continuously to be further developed. This requires a constant and close collaboration of states, in particular through competent international organizations.

2.1.2 The need for ocean knowledge Governance can only be successful if based on a sound knowledge about the issues to be dealt with. Even in the twenty-​first century, man’s knowledge about the seas and   United Nations Convention on the Law of the Sea 1982 (UNCLOS) 1833 UNTS 397.   Cf Peter Ehlers, ‘Blue Growth and Ocean Governance: How to Balance the Use and the Protection of the Seas’ (2016) 15 WMU J Marit Affairs 187, 196. 1 2



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oceans is rather limited.3 Covering more than 70 per cent of the earth’s surface, the seas and oceans are poorly understood, irrespective of their pivotal role in the earth’s physical, geochemical, and biological systems.4 However, thorough ocean knowledge is an indispensable prerequisite for ocean governance in order to make use of the seas in an environmentally acceptable and sustainable manner, including coastal defence measures against marine threats and adaptation and mitigation measures with regard to climate change.

2.2  Existing Legal Commitments Although various states have for a long time promoted marine research and ocean observation projects, the growing needs for ocean information5 require additional, long term and sustained efforts as a basis for providing factual and unbiased information on the state of the oceans, requested both by decision-​makers and the public at large. Sufficient knowledge on a global level may only be achieved by a reliable and trustworthy cooperation of states, preferably based on clear legal commitments.6

2.2.1 UNCLOS At least some approaches for creating such an obligation can be found in UNCLOS. The general obligation of states to protect and preserve the marine environment and to take all measures needed, individually as well as jointly,7 also includes the acquisition of information and data about the seas as a precondition to gain the knowledge needed for taking appropriate measures and for monitoring their effectiveness. This is underlined by the obligation of states to cooperate for the purpose of promoting studies and undertaking programmes of scientific research, including participation in regional and global programmes.8 Directly or through the competent international organizations, states shall endeavour to observe, measure, evaluate, and analyse the risks or effects of marine pollution; reports of the results shall be made available to all states.9 The provision that the state has to take into account the best scientific evidence when determining the allowable catch of fish in the exclusive economic zone (EEZ)10 may also be interpreted as that states have to strive towards obtaining sufficient scientific knowledge. In addition, states shall provide scientific and technical assistance to developing states concerning environmental assessments.11 Even if these provisions do not spell out concrete obligations, one may deduce a general obligation to provide for knowledge about the ecological states of the seas, to cooperate with other states and to

  Cf Peter Ehlers, ‘The Governance of the Global Ocean Observing System (GOOS)’ in Holger A T Hestermeyer and others (eds), Coexistence Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (Martinus Nijhoff Publishers 2012) 1413 ff. 4   See ‘A Framework for Ocean Observing’ IOC/​INF-​1284-​rev, 4 ff. 5   Cf Young-​K iung Yoon, ‘States’ Obligations Relating to Marine Monitoring and Observation’ (2011) 10 WMU J Marit Affairs 25, 26. 6   For existing states’ obligations concerning ocean observation see Yoon (n 5) 30 ff. 7 8 9 10   UNCLOS arts 192, 194.   ibid art 200.   ibid arts 204, 205.   ibid art 61. 11   ibid art 202. 3

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participate in international programmes. This is underlined by the obligation of states to promote the establishment of national and regional marine scientific and technological centres,12 with the explicit emphasis on the role of competent international organizations.13

2.2.2 Marine conventions General commitments to research and observation are also made by the FCCC14 and are found in the CBD.15 The FSA16 requires that measures to ensure long-​term sustainability are based on the best scientific evidence available; states are obliged to collect and share information from national and international research programmes, to promote and conduct scientific research, to monitor conservation and management measures, and to cooperate for these purposes through competent international organizations. The London Convention17 and the regional marine environment protection conventions18 also foresee monitoring and research activities.

2.2.3 Soft law Several United Nations (UN) conferences on sustainable development have led to declarations that emphasize the need for ocean knowledge. Irrespective of their soft law character, these declarations are an important political impetus for additional efforts. Agenda 21 as the outcome of UNCED19 stipulates activities to increase the knowledge of the oceans, aiming in particular at the improvement of collecting and assessing data and information.20 The Implementation Plan, adopted by the World Summit on Sustainable Development (WSSD),21 calls for improving the scientific understanding and assessment of marine and coastal ecosystems as a fundamental basis for sound decision-​making.22 In 2012 the UNCSD23 reaffirmed the need for cooperation in marine scientific research to implement UNCLOS and the outcomes of the summits on sustainable development.24 A most important basis has been generated by the 2030 Agenda for Sustainable Development which, in 2015, was elaborated by a UN summit and adopted by the UN General Assembly.25 SDG No 14 aims at the conservation and sustainable use of the oceans, seas, and marine resources. Among others, this requires to ‘increase scientific knowledge, to develop research capacity and to transfer marine 13 14   ibid art 275 ff.   ibid art 278.   Framework Convention on Climate Change.   Convention on Biological Diversity. 16   Agreement for the Implementation of the Provisions of the UNCLOS Relating to the Conservation of Straddling Fish Stocks and Highly Migratory Fish Stocks. 17   Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. 18   See eg Convention for the Protection of the Marine Environment of the North-​East Atlantic arts 6, 8, and Annex IV; Convention on the Protection of the Environment of the Baltic Sea Area art 24. 19   United Nations Conference on Environment and Development (Rio de Janeiro, 1992). 20   See Agenda 21 ch 17, paras 17.8, 17.35, 17.56, 17.86, 17.102, 17.120, and 17.129. 21   World Summit of Sustainable Development (Johannesburg, 2002). 22   See Plan of Implementation of the World Summit on Sustainable Development Part IV, para 36. 23   United Nations Conference on Sustainable Development (Rio de Janeiro, 2012). 24   The Future We Want, UNGA Res 66/​288, UN Doc A/​R ES/​66/​288, Annex Part V.A, para 160. 25   UNGA Res 70/​01, UN Doc A/​R ES/​70/​1. 12 15



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technology . . . , in order to improve ocean health and to enhance the contribution of marine biodiversity to the development of developing countries, in particular small island developing States and least developed countries’.26 The UNGA, when annually adopting a resolution on oceans and the law of the sea, also stresses the need for marine scientific efforts. In these resolutions, the Assembly regularly recalls that: marine science is important for eradicating poverty, contributing to food security, conserving the world’s marine environment and resources, helping to understand, predict and respond to natural events and promoting the sustainable development of the oceans and seas, by improving knowledge, through sustained research efforts and the evaluation of monitoring results, and applying such knowledge to management and decision-​making.27

Therefore, the Assembly emphasizes the need to strengthen marine science capacity of nations. Part XI of the resolutions deals in detail with activities to increase marine research with the aim to improve the knowledge and understanding of the oceans. In summing up, it is obvious that the improvement of the knowledge about the ocean is a prerequisite for ocean governance, aiming at the implementation of UNCLOS and other marine conventions and of the decisions taken in the UN frame to enhance marine sustainable development and that, for this purpose, a close cooperation of states is needed, in particular through competent international organizations.

2.3  The Inter-​governmental Oceanographic Commission Fora for the cooperation of states to improve knowledge about the seas are provided by various international organizations. This includes UN specialized agencies and programmes such as the WMO,28 FAO, 29 IAEA, 30 IMO, 31 and UNEP, 32 but also other inter-​governmental organizations such as ICES, 33 IHO, 34 and the regional marine environment protection commissions, not to mention non-​governmental bodies such as ICSU35 and IUCN.36 Most of these organizations only deal with specific aspects of marine knowledge, as one component among others to achieve their specific objectives. However, there is one international institution with the primary objective of improving knowledge about the seas and the oceans and by this to contribute to ocean governance: the Inter-​governmental Oceanographic Commission of UNESCO.37

  SDG No 14 target 14(a).   UNGA Res 70/​235, UN Doc A/​R ES/​70/​235, preambulary part, para 14. 28 29   World Meteorological Organization.   Food and Agriculture Organization. 30 31   International Atomic Energy Agency.   International Maritime Organization. 32   United Nations Environment Programme. 33   International Council for the Exploration of the Sea. 34 35   International Hydrographic Organization.   International Council for Science. 36 37   International Union for Conservation of Nature.   In the following, the IOC. 26 27

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2.3.1 Purpose and organizational structure The IOC, originating from a programme of the United Nations Educational, Scientific and Cultural Organization (UNESCO), is now a separate unit of UNESCO, regulated by specific statutes.38 It is located at UNESCO headquarters in Paris. In the light of new developments, especially in the wake of UNCED39 and on the basis of UNCLOS, the IOC Statutes were substantially revised in 1999.40 One important issue at that time was the debate as to whether an independent international organization may be necessary and advantageous or whether the tasks should continue to be handled within UNESCO. The IOC Statutes resolved the question by defining the IOC as a part of UNESCO, calling it a body with functional autonomy.41 This autonomy lies particularly in the IOC’s authority to define and implement its programmes itself, according to its stated purposes and functions. However, the budget is still part of the UNESCO budget and has to be adopted by the General Conference of UNESCO. In addition to that, the UNESCO bodies have only limited authority to supervise the IOC.

(a) Purpose and functions The purpose of the IOC is to promote international cooperation and to coordinate programmes in research, services, and capacity building, in order to learn more about the nature and resources of the ocean and coastal areas and to apply that knowledge for the improvement of management, sustainable development, the protection of the marine environment, and the decision-​making processes of its member states.42 This definition of the IOC purpose underlines that understanding the oceans is not an end in itself, but that the ultimate goal is directed towards contributing to ocean governance. This is confirmed by the functions entrusted to the IOC. It recommends, promotes, plans, and coordinates international programmes in research, observations, and the dissemination and use of their results, the development of relevant standards, and reference materials, as well as guidelines and nomenclature. Another important task is to recommend and coordinate programmes for education, training, and assistance in marine science, ocean, and coastal observations, including the transfer of related technology.43 That these functions of the IOC are part of the system of ocean governance, based on UNCLOS, becomes clear by the additional function that the IOC has to respond to the requirements deriving from UNCLOS, UNCED, and other relevant instruments relevant to marine scientific research, related services, and capacity building. In this context, the IOC is defined as a ‘competent international organization’.44 This term derives particularly from UNCLOS, under which special competences are assigned to such organizations concerning, inter alia, marine scientific research. For 38   For details see Peter Ehlers, ‘The Intergovernmental Oceanographic Commission: An International Organization for the Promotion of Marine Research’ (2000) 15(4) IJMCL 533, 533 ff. 39 40   See n 19 above.   UNESCO 30 C Resolution 22 (11 November 1999). 41 42 43   IOC Statutes art 1, para 1.   ibid art 2, para 1.   ibid art 3, para 1. 44   ibid art 3, para 1 lit. c.



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example competent international organizations have the right, besides the states, to conduct marine research and to have it carried out under their auspices.45 Also the international cooperation of states is to be facilitated within the framework of these organizations in order to promote the development and transfer of marine knowledge. This is aimed particularly at improving the capacity of developing countries with a view to accelerating their social and economic development.46 Through the competent international organizations states are also expected to promote the establishment of general criteria and guidelines for marine research47 and the transfer of marine technology.48 Consequently, Agenda 21 classifies the IOC as a competent UN body;49 that is also reflected in the UN resolutions on the oceans and the law of the sea.50 Owing to its consultative status as an inter-​governmental institution, the IOC is not in a position to take decisions with binding effect, but can only recommend them to member states. In the end, the implementation of IOC decisions depends on the willingness of member states for commitment.

(b) Membership and financing The partial autonomy of the IOC is reflected in its membership regulations. Membership does not result automatically from UNESCO membership, but has to be applied for separately and is open to any member state of any one of the UN organizations.51 The IOC has 147 members.52 Member states have to collaborate with and support the IOC work programme. As the IOC is part of UNESCO, it is financed indirectly by the member states of UNESCO and cannot establish any own membership contributions, but is dependent on the funds appropriated by UNESCO.53 However, voluntary additional funds can be provided by member states and organizations or other donors.

(c) Organizational structure Owing to its partial autonomy, the IOC has been given its own organizational structure. It consists of the Assembly, the Executive Council, the Secretariat, and such subsidiary bodies as it may establish.54 The Assembly is the principal organ and performs all functions of the Commission, unless otherwise regulated or decided by the Assembly. The Executive Council exercises the responsibilities delegated by the Assembly and acts on its behalf in the implementation of decisions. The Secretariat is responsible for all executive tasks, including the convening and servicing of all sessions of IOC bodies, providing reports and information, executing the work programme,

  Cf UNCLOS, arts 238, 256, and 257; see below section 2.3.3(b). 47   UNCLOS, arts 266 ff.; see below section 2.5.5.   UNCLOS, art 251. 48 49   ibid art 271.   Agenda 21 ch 17, para 17. 101. 50 51   Cf UNGA Res 70/​235, UN Doc A/​R ES/​70/​235, para 289.   IOC Statutes, art 4. 52   As of 24 June 2015, IOC-​X XVIII/​3 Annex VII, 4. 53   For the period 2014​–​17 a regular budget of US$12,026,200 has been envisaged, Annex 2 to IOC/​Res XXVII-​2, IOC-​X XVII/​3, 12 ff. 54   IOC Statutes, arts 5–​8. 45

46

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maintaining working contacts with member states and international organizations, and arranging appropriate representation of the IOC in other institutions. As part of the Secretariat decentralized project, programme and regional offices have been set up.55 The IOC has established a number of subsidiary bodies for tasks that need specific scientific or technical expertise, in particular with regard to the execution of programmes and projects adopted by the Commission.56 Many of them have been formed with participation of other organizations with ocean-​related interests. In addition to other subsidiary bodies, which partly will be explicitly mentioned in the following sections, the IOC has established an Advisory Body of Experts on the Law of the Sea (ABE-​LOS), which shall provide advice on the IOC’s role in relation to UNCLOS, in particular with regard to the provisions related to marine scientific research.57 In addition to these bodies with sectoral responsibilities, the IOC has regionalized part of its work by creating sub-​commissions as subsidiary bodies for promoting the implementation of programmes and projects and strengthening cooperation in the regions. The sub-​commissions are funded from the regular IOC budget and extra budgetary contributions.58 For the Western Pacific Region, which is a particularly vulnerable region, often challenged by natural disasters and facing rapid decline of its coastal ecosystems, the IOC has established the Sub-​Commission IOC/​WESTPAC, which covers twenty-​two countries encompassing from the Andaman Sea part of Thailand to the Pacific coast of America and from the southern tip of New Zealand to the northern part of the Bering Sea. The IOC/​WESTPAC promotes the international cooperation and coordinates programmes in marine research, ocean observations, and services, as well as capacity building. WESTPAC aims at learning more about the nature and resources of the Western Pacific and adjacent seas and coastal areas, and at applying that knowledge for the improvement of governance, sustainable development, and protection of the marine environment.59 In 2011 the IOC established a Sub-​Commission for Africa and the Adjacent Islands (IOCAFRICA), following earlier regional committees for the Western Indian Ocean60 and the Central and Eastern Atlantic61 to facilitate the coordination among the member states in the region, and the efficient implementation of IOC programmes in Africa, in order to ensure sustainable development and safety of the coastal populations.62 The   See Guidelines for the establishment of decentralized offices, IOC/​Res XXVII-​1, IOC/​INF-​1193, 11 ff.   See Guidelines for the structure and responsibilities of the subsidiary bodies of the Commission, IOC/​Res XXVII-​1, IOC/​INF-​1193, 1 ff. 57   IOC/​Res XIX-​19. 58   Cf IOC-​X XVII/​Dec.3.3, IOC/​X VII/​3, 16 ff; IOC-​X XVIII/​Dec.3.3.1–​3.3.3; IOC-​X XVIII/​3, 6 ff; for specific regional activities see below sections 2.33(b)(viii), (c)(i), (f)(iii), 2.4.2, 2.4.5 and 2.55. 59   For details see http://​iocwestpac.org (last accessed 2 October 2016); IOC Annual Report 2004, 72 ff; IOC Annual Report 2006, 68 ff; IOC Annual Report 2007, 86 ff; IOC Annual Report 2008, 20; IOC Annual Report 2009, 21; IOC Annual Report 2010, 19 ff; IOC Biennial Report 2012–​2013, 21 ff; IOC-​ XXVIII/​3, 6 ff. 60   Established by IOC/​Res XI-​9; for details see IOC Annual Report 2007, 84 ff; IOC Annual Report 2008, 19; IOC Annual Report 2009, 20. 61   Established by IOC/​EC/​Res XVII-​7. 62   IOC/​Res XXVI-​3; for earlier activities in Africa see IOC Annual Report 2006, 71; IOC Annual Report 2007, 74 ff; IOC Annual Report 2009, 18 ff; IOC Annual Report 2010, 16 ff. 55

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Sub-​Commission takes into consideration the priority given to Africa by UNESCO and is supported by the UNESCO regional office in Nairobi.63 The IOCARIBE is the IOC  Sub-​Commission for the Caribbean and Adjacent Regions; it is responsible for the promotion, development, and coordination of IOC marine scientific research programmes, the ocean services, and related activities, including capacity development in the wider Caribbean area. In establishing its programmes, it reflects the specific interests and needs of the member states in the region towards regional sustainable development.64 A regional Committee for the Central Indian Ocean (IOCINDIO),65 which had been inactive for years, was revitalized in 2016 building on the impetus of the 2nd International Indian Ocean Expedition.66 The IOCINDIO provides an opportunity to member states of the region and partners to reinforce cooperation and to pool together technical and financial resources for implementation of IOC-​related programmes.67

2.3.2 International collaboration It goes without saying that ocean governance requires a close and reliable international collaboration between states, which is in accordance with the cooperative approach laid down in UNCLOS. This cooperation is embedded in a close network of international institutions, differing in global and regional, inter-​governmental, and non-​governmental organizations (NGOs). The IOC is an important part of this network. Accordingly, Article 278 of UNCLOS also calls for cooperation among the international organizations for marine research and technology transfer. In line with this provision, the Statutes of the IOC, in the definition of its purpose, emphasize that the IOC collaborates with international organizations concerned with its work, and especially with those organizations of the UN system which are willing and prepared to contribute to its purpose and functions or seek advice and cooperation in the field of ocean and coastal area scientific research, related services, and capacity building.68 With a number of organizations the IOC has concluded memoranda of understanding to base the collaboration on a contractual relationship.69

(a) Participation in the UN system As the focal point for ocean sciences, observations, services, data and information exchange, and capacity development within the UN system, the IOC contributes 63   For details see http://​w ww.unesco.org/​new/​en/​natural-​sciences/​ioc-​oceans/​about-​us/​ioc-​sub-​ commissions/​iocafrica/​about-​iocafrica (last accessed 2 October 2016); IOC Annual Report 2004, 76; IOC Biennial Report 1012–​2013, 13, 18: IOC-​X XVI/​3, 11 ff; IOC-​X XVIII/​3, 10. 64   For details see http://​iocaribe.ioc-​unesco.org/​about-​iocaribe (last accessed 2 October 2016); IOC Report 2006, 70; IOC Annual Report 2007, 79 ff; IOC report 2008, 23; IOC Annual Report 2009, 23; IOC Annual Report 10, 22; IOC Biennial Report 2012–​2013, 20, IOC-​X XVI/​3, 10 ff; IOC-​X XVIII/​3, 8. 65 66   Established by IOC/​Res XII-​14.   See below section 2.3.3(b)(ix). 67   IOC/​EC-​X LIX/​2 Annex 1, 20. 68  IOC Statutes art 2, para 2; for an overview about IOC’s international partnerships see IOC/​ INF-​1314, at 18. 69   Cf Ehlers (n 38) 539.

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to a number of UN processes, responds to the needs expressed by the UNGA, and plays an active role in UN inter-​agency mechanisms and activities.70 This includes the participation in UN conferences on sustainable development, such as UNCED, WSSD, and the UNCSD,71 the regular process for global reporting, and assessment of the state of the marine environment, set up by the UN Assembly,72 as well as in the Informal Consultative Process on Ocean Affairs and the Law of the Sea (UNICPOLOS).73 The organization contributes to the annual reports of the UN Secretary General on oceans and the law of the sea by submitting statements summarizing its main activities.74 The work of the IOC is regularly reflected in the UNGA resolutions on oceans and the law of the sea.75 The IOC also contributed to the formulation of the sustainable development goals laid down in the 2030 Agenda resolution of the UNGA by co-​leading the UN Ocean Task Support Team, which provided technical advice on potential ocean targets and indicators that could be integrated in a stand-​a lone ocean sustainable development goal.76 The Commission is involved in the negotiations at the UN on the development of a new legally binding instrument under UNCLOS to conserve and sustainably use marine biodiversity in areas beyond national jurisdiction, which have started under a Preparatory Committee.77 As one of the specialized agencies of the UN system, the IOC participates in UN-​Oceans, an inter-​agency mechanism that seeks to enhance the coordination, coherence, and effectiveness of competent organizations of the UN system and the International Seabed Authority.78

(b) Collaboration with other international bodies Very tight relations exist between the IOC and the WMO, as some of their tasks owing to the interaction of oceanography and maritime meteorology are overlapping. For this reason, the WMO and the IOC have established the Joint Technical Commission for Oceanography and Maritime Meteorology (JCOMM) to improve the coordination and management of the marine-​related activities of both organizations, to reduce duplication and overlapping, and to enhance efficiency.79 Numerous programmes and projects are co-sponsored by both organizations; in particular, the responsibility for

  IOC-​X XVIII/​3, 39 ff.   See above Part A  III.3; for details see IOC Annual Report 2010, 8, IOC-​X XVI/​3, 17 http://​w ww. un.org/​Depts/​los/​general_​assembly/​contributions_​2013/​IOC%20Contribution.pdf (last accessed 2 October 2016). 72 73   See below Part B III 5 b.   Cf IOC Biennial Report 2014–​2015, 53. 74   Cf IOC Biennial Report 2012–​2013, 12 ff. 75   See eg UNGA Res 70/​235, UN Doc A/​R ES/​70/​235, paras 11, 29, 189, 250 ff, 259, 272, 289; cf IOC Biennial Report 2012–​2013, 11. 76   IOC Biennial Report 2014–​2015, 52. 77   Established by UNGA Res 69/​292, UN Doc A/​R ES/​69/​292; see IOC/​EC-​X LIX/​2 Annex 1, 18. 78   Established by UNGA Res 68/​70, UN Doc A/​R ES/​68/​70. 79   JCOMM replaced the former Joint IOC/​WMO Committee for the Integrated Ocean Services System und the WMO Commission for Maritime Meteorology; see IOC/​Res XX-​12; WMO Congress Resolution 14; for details see http://​w ww.jcomm.info (last accessed 2 October 2016); recent activities are reported in IOC/​EC-​X LIX/​2 Annex 1, 8. 70 71



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the global ocean observing system (GOOS)80 is jointly met by the IOC and the WMO, with the additional co-​sponsorship of UNEP and the ICSU, acknowledging the lead function of the IOC.81 Cooperation with UNEP is not restricted to GOOS, but covers various activities, which are related to the marine environment, and is based on a memorandum of understanding.82 A  most prominent example is the World Ocean Assessment.83 Especially with regard to harmful algal bloom the cooperation also includes the IAEA.84 Collaboration with FAO and IMO, also specialized UN agencies, affects marine science and fisheries85 and shipping aspects, respectively. The main area of collaboration with IHO, also based on a memorandum of understanding,86 covers the General Bathymetric Chart of the Ocean (GEBCO) project.87 The IOC and ICES mainly work together on studies on the North Atlantic Ocean and adjacent seas.88 As concerns climate change and marine biodiversity IOC participates in the work of the parties to the FCCC89 and the CBD.90 The IOC is one of nine UN organizations that sponsor the Joint Group of Experts on the Scientific Aspects of Marine Environment Protection (GESAMP), which was established in 1969.91 Very close relations also exist between the IOC and the International Council for Science (ICSU), which is an international NGO with a global membership of national scientific bodies and international scientific unions.92 It has established the Scientific Committee on Ocean Research (SCOR) as an interdisciplinary body to promote international cooperation in planning and conducting ocean research.93 With a focus on marine environmental aspects, the IOC collaborates with IUCN94 and CI.95 Specific IOC programmes are supported by the Global Environment Fund (GEF). Originally established as a financial programme by the World Bank, GEF has become an independent international financial organization to assist the protection of the global environment and to promote environmental sustainable development. It is a partnership of 183 countries, international institutions, civil society organizations, and the private sector, and provides grants and concessional funding for projects with global environmental benefits.96   See below section 2.3.3(b)(ix). 81  IOC/​Res XXVII-​5. 83   IOC/​EC-​X XXVII/​3 12 ff, Annex 4.   See below section 2.3.3(e). 84   See below section 2.3.3(b)(iv). 85  Aide mémoire IOC/​FAO, IOC/​INF-​785, 19. 86   See IOC/​INF-​785, 23 https://​w ww.iho.int/​mtg_​docs/​International_​Organizations/​MOU/​IHOIOC. pdf (last accessed 2 October 2016). 87   See below section 2.3.3(b)(iii). 88   See Memorandum of Understanding between IOC and ICES, IOC Annual Report 2004, 31; IOC/​ EC-​X XXVII/​3, 12. 89   See Annual Report 2009, 41 ff; the contribution of IOC to the FCCC Paris Conference in December 2015 is particularly reflected in IOC/​EC-​X LIX/​2 Annex 1, 17. 90   IOC is particularly involved in the work with regard to OBIS and capacity building; see below Part B III 4c, 8 c; IOC Biennial Report 2014–​2015, 31, 39 ff. 91   For details see IMO, ‘The New GESAMP: Science for Sustainable Oceans’ (2005); IOC/​INF-​1197. 92   For details see http://​w ww.icsu.org (last accessed 2 October 2016). 93  See http://​w ww.scor-​int.org (last accessed 2 October 2016). 94  See https://​w ww.iucn.org (last accessed 2 October 2016). 95   Conservation International http://​w ww.conservation.org (last accessed 2 October 2016). 96  See https://​w ww.thegef.org (last accessed 2 October 2016); see also Alfred M Duda and Kenneth Sherman, ‘A New Imperative for Improving Management of Large Marine Ecosystems’ (2002) 45 Ocean & Coastal Management 797, 803 ff. 80 82

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Numerous contacts and working relations with regional organizations and institutions, such as the International Polar Partnership Initiative,97 the North Pacific Science Organization, the Permanent Commission for the South Pacific,98 and the European Union complement the international collaboration of the IOC.

2.3.3 The ocean governance-​related activities of the IOC (a) IOC strategy Long before ocean governance became an issue of general interest, the IOC recognized the need for a better knowledge about the oceans to understand their importance as a source of life and as an essential component of the ecosystem earth. In the initial phase, the IOC activities mainly served scientific goals and were characterized by the promotion of marine scientific investigations. Influenced by UNCLOS and the UNCED results, the IOC focused more and more on an issue-​ oriented approach. Increasingly, and in accordance with the purpose of the IOC, expressed in its Statutes, the activities for improving the knowledge of the oceans have been considered under the aspect of their potential contribution towards responsible ocean management and sustainable development, also taking into account societal concerns. Instead of a large variety of separate projects and programmes a more strategic approach was introduced, which resulted in medium-​ term strategies.99 The current medium-​term strategy covers the period from 2014 to 2021.100 A thorough analysis of the IOC’s activities over more than half a century would go beyond the scope of this report;101 therefore, the study concentrates on recent developments and activities, beneficial for ocean governance.102 A new essential basis for the IOC’s work at the global, regional, and country level has been constituted by the 2030 Agenda on Sustainable Development,103 and in particular the sustainable development goal (SDG) No 14, as several targets are directly relevant, particularly in the area of marine pollution, ocean acidification, ecosystem-​based management,104 and marine research capacity and transfer of marine technology.105 The IOC Medium-​Term Strategy 2014–​2021 formulates a vision that: a strong scientific understanding and systematic observations of the changing world ocean climate and ecosystems shall underpin sustainable development and global governance for a healthy ocean, and global, regional and national management of risks and opportunities from the ocean.106

98 99   See IOC/​EC-​L XVII/​3, 20 ff.   See IOC/​INF-​1314, 18.   See IOC-​X XII/​3 7.   Adopted by IOC/​Res XXVII-​2(B), IOC-​X XVII/​3, 3; IOC/​INF-​1314. 101   A comprehensive overview of IOC’s activities for more than half a century is provided by Geoff Holland and David Pugh (eds), Troubled Waters: Ocean Science and Governance (Cambridge University Press 2010). 102   A concise overview of IOC’S activities is provided in the Annual, resp. Biennial Reports. 103  See n 25. 104   For details of the ecosystem-​based management approach see Duda and Sherman (n 96) 801 ff. 105 106   IOC/​EC-​X LIX/​2 Annex 1, 16.   IOC/​INF-​1314, 10. 97

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Derived from this vision, the IOC has defined four high-​level objectives: • healthy ocean ecosystems and sustained ecosystem services; • effective early warning systems and preparedness for tsunamis and other ocean-​ related hazards; • increased resiliency to climate change and variability and enhanced safety, efficiency and effectiveness of all ocean-​based activities through scientifically-​ founded services, adaptation and mitigation strategies; • enhanced knowledge of emerging ocean science issues.107 To achieve these objectives the IOC focuses on strengthening scientific knowledge of the ocean and human impact on it, applying that knowledge for societal benefit, and building institutional capacities for sound management and governance. The manifold activities are not easy to be structured and categorized. They partly are issue-​oriented, partly cross-​sectional. In the Medium-​Term Strategy the activities are categorized in a conceptual framework of six functions, which contribute through varying measures to the objectives. These functions either directly target or are at least indirectly affiliated with ocean governance. Taking into account this categorization, the ocean governance-​related work of the IOC is specified hereafter.

(b) Ocean research: legal basis Principles for cooperation in marine scientific research are laid down by UNCLOS.108 They aim at the promotion of international cooperation in marine scientific research, the creation of favourable conditions of their conduct, and the publication and dissemination of information and knowledge. In applying these principles and in accordance with its Statutes,109 the IOC develops, promotes, and facilitates international oceanographic research programmes to improve the highly incomplete understanding of critical global and regional ocean processes and their relationship to the sustainable development and management of marine resources. Since its beginnings in the 1960s, the IOC has been involved in almost all important international marine scientific programmes. As an inter-​governmental organization, the IOC does not carry out research work itself, but contributes to create the conditions for doing good ocean science and to build a network of scientific logistic facilities at regional and global scales. That includes the promotion of science innovation, nurturing programmes, transferring, disseminating, and sharing information, data and knowledge, best practices, assessment, and scientific services related to ocean sciences. This is done in an inclusive and participatory way, synthesizing knowledge of the scientific community, academia, member states, and others.110 As a competent international organization for marine science, the IOC has elaborated a ‘Procedure for the application of Art. 247 of UNCLOS by IOC’ to facilitate 108  ibid.   UNCLOS, arts 239, 242 ff.   See IOC/​INF-​1294, 3.

107 110

109

  IOC Statutes, art 3, para 1 lit a.

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the procedure for research projects, but until now Article 247 has never been put to use.111 Article 251 empowers the IOC to establish general criteria and guidelines to assist states in ascertaining the nature and implications of marine scientific research; Article 258 extends the conditions for the conduct of scientific research to the deployment and use of scientific research installations and equipment. When states, under Article 255, endeavour to adopt reasonable rules, regulations, and procedures to promote and facilitate marine scientific research, the IOC can serve as the appropriate forum.112 Recent IOC activities related to marine science and research cover in particular the following issues. (i) Climate change The oceans play an essential role in global climate change, which is one of the most challenging issues of our times. At the same time, ocean processes are influenced and modified by climate change leading to adverse impacts on marine ecosystems. As early as 1979, the IOC and SCOR formed a first committee on climate change and the oceans. Since 1993 the IOC, together with WMO and ICSU, have sponsored the World Climate Research Programme (WCRP). This programme coordinates climate research focused on improving knowledge and better understanding of global and regional climate variability and change, and on developing improved numerical models and climate projections.113 These activities are also to support coastal states and island states to develop adaptation strategies.114 In addition to allocating regular financial resources, the IOC contributes to WCRP by convening or contributing to international scientific conferences.115 (ii) Ocean carbon Ocean carbon research plays an important role to quantify the global ocean uptake of atmospheric CO2 and to understand controls of this process, the variability of uptake, and the vulnerability of carbon fluxes into the ocean. Since the 1980s, the IOC has cooperated with SCOR to coordinate ocean carbon measurements. In the early 2000s, this led to the International Ocean Carbon Coordination Project (IOCCP).116 A new approach, focused on implementing coordination actions, rather than simply providing scientific and technical advice, was developed with support from the sponsor organizations. The IOCCP coordinates a highly diverse set of activities to facilitate the development of globally acceptable strategies, methodologies, practices, and standards, homogenizing efforts of the research community and scientific advisory groups,   Res IOC/​EC-​X XXIX.7; IOC/​INF-​1222; see IOC Annual Report 2006, 4.   The UNCLOS issues are primarily dealt with by ABE-​LOS (see above section 2.3.1(c)). 113   IOC-​X XVI/​3, 23 ff; Decision IOC/​X XVII/​Dec.5.4.1, IOC-​X VII/​3, 27; IOC-​X XVIII/​3, 16 ff. 114   See IOC Annual Report 2010, 32 ff. 115  See eg 3rd International Symposium on the Effects of Climate Change in the World’s Ocean (Santos, Brazil, 23–​27 March 2015); international scientific conference, ‘Our Common Future Under Climate Change’ (7–​10 July 2015), organized by France and hosted by UNESCO; a WCRP/​IOC conference on future regional sea-​level and its impacts was held in July 2017; see http://​sealevel2017.org. (last accessed 8 February 2018). 116   Cf IOC Annual Report 2007, 51, 60; IOC Annual Report 2008, 32 ff. 111

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as well as integrating ocean carbon programmes and activities into globally integrated Earth system observing networks.117 As an important result, the Surface Ocean CO2 Atlas was launched in 2015, assembling data that have been provided by seagoing marine scientists from across the world.118 The IOC is a co-sponsor of a series of international symposia on Oceans in a High CO2 World, providing a forum for scientists from all over the world.119 As coastal vegetated ecosystems have demonstrated capacity for sequestering carbon in both the plant biomass above ground and in the subsurface sediment layers, the IOC and the partner organizations CI and IUCN established in 2011 the ‘Blue Carbon Initiative’ to develop management approaches, financial incentives, and policy mechanisms for ensuring the conservation, restoration, and sustainable use of coastal blue carbon ecosystems. The IOC is strongly involved in the Blue Carbon Scientific Working Group.120 To provide a robust scientific basis, standards for quantifying and monitoring carbon storage, sequestration, and emissions in coastal ecosystems, such as mangroves, tidal salt marshes, and sea grass meadows were identified and a manual on methods for assessing carbon stocks and emissions factors was published in 2014.121 (iii) Ocean acidification Ocean acidification, particularly caused by increasing CO2 inputs, is a major risk to marine biodiversity and ecosystems. The IOC is co-​leading the Global Ocean Acidification Observing Network. It is a collaborative international approach to document the status and progress of ocean acidification in open ocean, coastal, and estuarine environments, to understand the drivers and impacts of ocean acidification on marine ecosystems.122 IAEA, the other co-​leader, has established an Ocean Acidification International Coordination Centre.123 The contributions of the IOC include the co-organization and support of a workshop in 2016 in order to broaden the global representation and to move forward in the implementation of biological observations of ocean acidification.124

117  See http://​w ww.ioccatorg/​index.php/​about-​us/​background; http://​w ww.un.org/​Depts/​los/​general_​assembly/​ contributions_​2013/​IOC%20Contribution.pdf (last accessed 3 October 2016), 5 ff; for further details see Christopher L Sabine and others, ‘International Carbon Coordination’ (2010) 23(3) Oceanography 48, 48 ff. 118   IOC Biennial Report 2014–​2015, 18. 119   IOC Annual Report 2010, 34; Annual Report 2012, 35. 120  IOC Annual Report 2010, 54; IOC Biennial Report 2012–​ 2013, 36; IOC Biennial Report 2014–​2015, 47. 121  J Howard and others (eds), ‘Coastal Blue Carbon:  Methods for Assessing Carbon Stocks and Emissions Factors in Mangroves, Tidal Salt Marshes, and Sea Grasses’ (Conservation International, Intergovernmental Oceanographic Commission of UNESCO, International Union for Conservation of Nature 2014). 122   For details see J A Newton and others, Global Ocean Acidification Observing Network: Requirements and Governance Plan (2nd edn, GOA-​ON 2015) http://​w ww.goa-​on.org/​docs/​GOA-​ON_​2nd_​edition_​ final.pdf (last accessed 3 October 2016). 123  Cf https://​w ww.iaea.org/​ocean-​acidification/​page.php?page=2178 (last accessed 3 October 2016); IOC Biennial Report 2014–​2015, 18. 124   IOC/​EC-​X LIX/​2 Annex 1, 4.

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(iv) Harmful algal bloom A harmful algal bloom (HAB) research programme has for a long time been conducted jointly with SCOR to foster the effective management of, and scientific research on, HABs in order to understand their causes, predict their occurrences, and mitigate their effects.125 To meet the scientific, managerial, implementation, and resource needs of the programme, in 1991 the IOC established an Inter-​governmental Panel on Algal Blooms (IPHAB).126 IPHAB membership is open for member states, inter-​governmental organizations such as FAO, WHO, and IAEA, and other interested international organizations, in particular SCOR. In 2015 the programme was transformed and continued as a new decadal research programme, entitled Global HAB, to meet societal needs in a changing world.127 A new implementation plan is under development.128 A current issue of major importance is ciguatera fish poisoning, which is the most extensive human illness caused by harmful algae. The inability to conduct appropriate tests for the causative toxins leads to extensive closures of fisheries and lack of access to important food resources.129 (v) Ocean biodiversity To advance the scientific basis for conserving biological diversity in the deep sea and the open ocean, the IOC participates in the Global Ocean Biodiversity Initiative (GOBI), which began in 2008. This initiative is an international partnership including the UNEP, IOC, ICSU, universities, and institutes, as well as NGOs. It aims at helping countries to meet the goals related to reducing the rate of biodiversity loss, applying ecosystem approaches, determining areas of ecological and biological significance, and vulnerable marine ecosystems, as well as establishing representative marine protected area (MPA)  networks.130 The IOC especially contributes by illustrating the various scientific methods and techniques relevant to the scientific criteria for the selection of ecologically and biological significant areas, including examples of species, habitats, and oceanographic features. The IOC is also involved in the compilation of key scientific features concerning the establishment of MPAs.131 (vi) Eutrophication and deoxygenation Eutrophication of coastal ecosystems is a major global environmental issue, as it contributes to such problems as harmful algal blooms, dead zone formation, and decline. In 2009 the IOC initiated an integrated coastal research plan to deliver improved tools for management of nutrient loading to the marine environment by way of quantitative analyses of impacts of nutrient loading. It was integrated in 2012 into a joint 125   See IOC Annual Report 2005, 34 ff; IOC Annual Report 2007, 53 ff; IOC Annual Report 2008, 31; IOC Annual Report 2010, 46, 48. 126 127   IOC/​Res XVI-​4.   Decision IOC-​X XVIII/​8.3, IOC-​X XVIII/​3, 27. 128 129   See IOC/​EC-​X LIX/​2 Annex 1, 14.   IOC Biennial Report 2014–​2015, 43. 130   For details see the brochure Global Ocean Biodiversity Initiative, ‘Working Toward High Seas Conservationhttp://​w ww.gobi.org/​Library/​gobi-​literature/​GOBIbrochure_​2012_​ web.pdf/​v iew (last accessed 3 October 2016); cf below section 2.4.4. 131   See IOC Annual Report 10, 54.



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UNEP/​IOC/​GEF project ‘Global foundations for reducing nutrient enrichment and oxygen depletion from land based pollution’. The IOC is leading the project research component that delivers global and local models for impacts of nutrient loading.132 The global extent and threat to human health and marine ecosystem services of ocean deoxygenation, caused by increased nutrient inputs and higher temperatures are just beginning to be realized, and its social and economic consequences have yet to be determined. The IOC supports scientists to establish a global network of experts within this field and to raise awareness for this threat.133 (vii) Participation in GESAMP activities Marine debris, in particular micro-​plastics, can have significant ecological, social, and economic impacts. Even the G7 Summit in 2015 acknowledged that marine litter poses a global challenge and advocated priority actions and solutions to combat marine litter.134 The IOC is co-​leading with UNEP a GESAMP working group dealing in particular with sources, fate, and effects of micro-​plastics in the marine environment. A global assessment was published in 2015.135 Together with the WMO, the IOC supports a GESAMP working group on marine geo-​engineering under the lead of IMO. It aims at a better understanding of impacts of different geo-​engineering approaches on the marine environment with the objective of providing advice to the contracting parties in considering the listing of marine geo-​engineering techniques in the new Annex 4 of the London Protocol.136 (viii) Regional activities A number of the IOC’s research activities focus on specific parts of the oceans and regional problems and priorities. A recent and quite outstanding example is the Second International Indian Ocean Expedition programme. It is a major global scientific programme, which engages the international scientific community in collaborative oceanographic and atmospheric research from coastal environments to the deep sea over the period 2015–​2020, revealing new information on the Indian Ocean, in particular with regard to its currents, its influence upon the climate, and its marine ecosystems, which is fundamental for future sustainable development.137 As a catalyst project linking Indian Ocean processes to the global ocean and atmosphere, it is important for the whole world. Together with other sponsors, the IOC is coordinating and supporting the programme. A number of major research initiatives, bringing together stakeholders from multiple countries, are already underway or planned.138 132   IOC/​Res XXV-​9; see IOC Annual Report 2010, 46, IOC Biennial Report 2012–​2013, 45, Biennial Report 2014–​2015, 20. 133   IOC Biennial Report 2014–​2015, 48; IOC/​EC-​X LIX/​2 Annex 1, 4 ff. 134   See Leaders’ Declaration, G7 Summit (7–​8 June 2015) 14, Annex, 8. 135   IOC Biennial Report 2012–​2013, 40; IOC/​EC-​X LIX/​2 Annex 1, 4; for details see Pollution in the Open Ocean 2009–​2013, GESAMP, Reports & Studies No 91, 2016; see also http://​w ww.un.org/​depts/​ los/​general_ ​a ssembly/​c ontributions_ ​2 016/​IOC_​C ontribution_​to_ ​ICP_​on_ ​marine_​debris.pdf (last accessed 2 October 2016) 2 ff. 136   1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter 1972; see IOC/​EC-​X LIX/​2 Annex 1, 4. 137   For details see http://​w ww.iioe-​2.incois.gov.in/​IIOE-​2/​iioe-​2.jsp (last accessed 3 October 2016). 138   See IOC/​Res XXVIII-​1; IOC Biennial Report 2012–​2013, 38; IOC Biennial Report 2014–​2015, 23.

44 Peter Ehlers

Research activities are also promoted through the regional sub-​commissions. Recent activities include the implementation of climate change adaptation in the coastal zones of Africa, ecological impacts of ocean acidification on coral reef ecosystems in the WESTPAC area, and ocean acidification and carbon dynamics in the Caribbean.139 (ix) World ocean science report Sufficient knowledge about the existing capacities of each country and the level of international collaboration and cooperation in ocean science is indispensable for supporting scientific activities with the aim of contributing to ocean governance and sustainable development. Following its mandate, the IOC has to play a leading role in facilitating the development and implementation of a global strategy to build national and regional capacity in ocean scientific affairs. Taking this into account, the IOC has taken the lead for the elaboration of a Global Ocean Science Report.140 The report is envisaged to provide an overview on nations’ investments, resources, and scientific productivity in ocean science.141

(c) Observation systems The knowledge about the oceans cannot be obtained from scientific activities only, as they are project-​oriented and restricted in time. They are primarily driven by the scientific impetus and dependent on the allocation of funds for research programmes and projects, which may change owing to new priorities and scientific interest. The growing need for ocean information to show changes over time and to provide ocean-​ related services, both critical to address societal concerns, requires long-​term, sustained efforts and additional commitments of governments.142 Therefore, the research activities have to be supplemented by operational long-​term ocean observations to provide analyses, predictions, and other information products, which may also serve as a basis for more sophisticated research projects. (i) GOOS A global ocean observing system (GOOS) has been built up since 1992 under the leadership of the IOC, together with WMO, UNEP, and ICSU.143 The concept of GOOS is to use long-​term, multi-​disciplinary, operational oceanographic observations for assessing and predicting the state of the ocean, in particular with regard to climate change, the conservation of the marine ecosystem, and the impacts of human activities. GOOS is integrated into the Global Earth Observation System of Systems

  See IOC-​X XVIII/​3, 6 ff; IOC/​EC-​X LIX/​2 Annex 1, 5.   IOC/​EC-​decision EC-​X LVII/​Dec. 6.2, IOC/​EC-​X LVII/​3, 16 ff; the report has been finalized and was published in 2017; see http://​unesdoc.unesco.org/​images/​0 024/​0 02493/​249373e.pdf (last accessed 8 February 2018). 141   See IOC/​EC-​X LVII/​2 Annex 8, IOC-​X XVIII/​3, 15 ff; IOC/​EC-​X LIX/​2 Annex 1, 5. 142   See ‘A Framework for Ocean Observing’ IOC/​INF-​1284 rev, 5. 143   Based on the Memorandum of Understanding between WMU, IOC, UNEP, and ICSU, 1998; for details cf Ehlers (n 3). 139 140



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(GEOSS) as its oceanographic component.144 GEOSS is created by the Group of Earth Observations (GEO), a voluntary partnership of governments and organizations that aims at obtaining better information by coordinated, comprehensive, and sustained earth observations.145 The establishment of a global operational system requires a sustained organizational structure. The ultimate responsibility for activities, policy, and support of GOOS lies with the IOC Assembly. As a subordinate body, the GOOS Steering Committee gives scientific guidance and advice to the implementing bodies of GOOS, and reports to the IOC Assembly. The Committee has appointed three panels, that is, the physics and climate panel, the biogeochemical panel, and the biological and ecosystem panel, to give advice on the different domains of GOOS. The necessary organization and coordination work is carried out by the GOOS Project Office, which is part of the IOC Secretariat. Intensifying the regional cooperation, where there are common scientific and practical interests, enables the most effective implementation of GOOS. Therefore, a regional approach is recognized as an appropriate means, especially for aspects of GOOS concerning the sea areas adjacent to shore. For this purpose, fifteen regional groups have been established as GOOS Regional Alliances (GRAs) covering most parts of the oceans. The GRAs have created a GOOS Regional Council to meet biannually. The council is not a subsidiary body of the IOC, but provides a unified voice for global coordination and facilitates the communication between GRAs, the GOOS Steering Committee, and the GOOS Project Office.146 Whereas the IOC looks for the design, organization, and coordination of the system, the implementation of the observation tasks depends on the commitment of the states. They have to ascertain through their appropriate institutes and agencies the long-​term observations, the assimilation and provision of data, and the delivery of products. However, as no binding obligations exist, GOOS is dependent on the goodwill of the states to give priority to this commitment and to allocate the necessary funds, both for the work to be done by the IOC and for the national implementation tasks.147 Over the first two decades, GOOS concentrated very much on the open-​ocean climate module, responding to societal requirements for climate monitoring and projections, weather forecasting, prediction of natural hazards, and safety of life at sea and on the coasts.148 However, the completion rate stalled at about 62 per cent, although it is slowly improving.149 In recent years, specific efforts have been undertaken to give more attention to monitoring activities beyond climate150 by strengthening the inclusion of other modules such as marine living resources, coastal zone management and development, and the health of the ocean. In addition to geophysical observations, more emphasis is given now to biological and biochemical variables and on an integrated coastal observation system151 following an ecosystem-​based approach. This is   IOC/​INF-​1314, 16; see IOC Annual Report 2005, 42; IOC Annual Report 2007, 41.   See https://www.earthobservations.org/geo_community.php (last accessed 27 April 2018). 146   See IOC-​X XVII/​Dec.5.3.2 Part II, IOC-​X XVII/​3, 23 ff; IOC/​INF-​1308. 147 148   See Ehlers (n 3), 1424 ff.   IOC Biennial Report 2012–​2013, 30. 149   IOC Annual Report 2010, at 32; IOC Biennial Report 2012–​2013, 30; IOC-​X XVIII/​3, 23. 150   IOC Annual Report 2010, 40. 151   For details see IOC, ‘Requirements for Global Implementation of the Strategic Plan for Coastal GOOS’ IOC/​SC-​2012/​GOOS-​193. 144 145

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accompanied by a closer engagement with key conventions152 such as the CBD and the Fisheries Agreements of FAO.153 Along with this development, the observation systems will be based on the requirements of essential ocean variables, which have to be defined.154 GOOS is closely linked with the Global Climate Observing System (GCOS), which is also jointly sponsored by WMO, UNEP, ICSU, and the IOC.155 The systems collaborate through the joint Oceans Observation Panel for Climate, in particular with regard to improving the observation of climate-​relevant essential ocean variables. In cooperation with all three GOOS panels, GCOS develops a new implementation plan for climate observations incorporating additional attention to the major climate cycles (energy, water, and carbon), as well as the needs for monitoring to support both mitigation and adaptation to climate change.156 (ii) GOOS-​related components GOOS mainly consists of observations from satellites and in situ observations by buoys and drifters or from research vessels. An early component for GOOS has been provided by the Data Buoy Cooperation Panel, which was jointly formed by the IOC and the WMO in 1985. It is an international programme coordinating the use of autonomous data buoys to observe atmosphere and ocean conditions.157 Several specific observation programmes that are closely related to the IOC have been integrated into GOOS. One prominent one is Argo, an international collaborative ocean-​observing programme of over 3,500 drifting floats that gather approximately 120,000 temperature, salinity, and depth profiles through the upper 2,000 m of the world’s oceans every year. Argo plays a key role in understanding ocean dynamics and ocean warming, and represents a major step forward in the ability to monitor ocean chemistry.158 The IOC identified a specific legal problem, as ARGO floats, although deployed on the high seas, may drift into waters under national jurisdiction. Different views were expressed on the question of whether the collection of data by Argo floats should be considered to be marine scientific research, requiring consent by the coastal state under the provisions of Article 246 UNCLOS, or as an operational activity, which should be treated in a way similar to meteorological activities. Based on the work of ABE-​LOS, the IOC adopted specific guidelines in 2008.159 In essence, states must be informed in advance of any float that might enter their EEZ. The guidelines do not constitute binding international law, but should serve as a pragmatic basis for cooperation in the Argo programme.160 153   IOC/​GOOS-​SC-​4/​3s, 6.   IOC Biennial Report 2012–​2013, 31.   IOC/​GOOS-​SC-​4/​3s, 6, IOC/​INF-​1284 rev, 2, 7. 155   Based on the Memorandum of Understanding between WMO, IOC, ICSU, and UNEP (1998); cf IOC Annual Report 2010, 39. 156   IOC/​EC-​X LIX/​2 Annex 1, 41. 157   See http://www.jcommops.org/dbcp (last accessed 27 April 2018). 158   See IOC/​Res XX-​6, IOC-​X XL/​3, 13 ff; for details see On the Design and Implementation of Argo http://​w ww.argo.ucsd.edu/​argo-​design.pdf; http://​w ww.oco.noaa.gov/​argoProfilingFloats.html (last accessed 3 October 2016); IOC Annual Report 2007, 37 ff. 159   Guidelines for the implementation of Resolution XX-​6 of the Assembly regarding the deployment of floats within the high seas in the framework of the Argo programme; Annex to Resolution EC-​X LI.4. 160   For details see Ehlers (n 3), 1428 ff. 152

154



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In addition to the observation activities of state agencies and institutes, the ship of opportunity programme (SOOP) makes use of volunteering merchant ships, which routinely transit strategic shipping routes. Ships’ officers are trained to deploy expendable bathythermographs (XBTs) at predetermined sampling intervals to acquire temperature profiles in the open ocean. The programme is managed by JCOMM.161 Another component of GOOS is the Global Sea Level Observing System (GLOSS), which has been established by the IOC and is conducted under the auspices of JCOMM. It aims at the establishment of high-​quality global and regional sea level networks for application to climate, oceanographic, and coastal sea level research.162

(d) Data management (i) Data exchange policy Research projects and observation measurements alone are not sufficient. Especially with regard to broader assessment and evaluation activities, which are one of the preconditions for ocean governance, an efficient data management is needed to make data available and usable for research, as well as for policy-​making. A precondition for using all data available for ocean governance as well as for other activities is the timely, free, and unrestricted exchange of and access to data. As the data policy might affect the sovereign and economic interests of those states providing data, after thorough discussions the IOC adopted an IOC Oceanographic Data Exchange Policy,163 which, however, is not binding, but only recommendatory: for all data, metadata, and products generated under the auspices of ICO programmes timely, free, and unrestricted access will be provided, whereas for other data the member states are only encouraged to provide timely, free, and unrestricted access, in particular for non-​commercial use by the research and education communities. The policy acknowledges the right of states and data originators to determine the exchange terms in a manner consistent with international conventions, where applicable.164 (ii) International Oceanographic Data and Information Exchange Programme By 1961 the IOC had already established the International Oceanographic Data and Information Exchange (IODE) programme,165 which is steered by the IOC Committee on International Oceanographic Data and Information Exchange. The purpose of IODE is to enhance marine research, exploitation, and development by facilitating the exchange of oceanographic data and information between participating member states, and by meeting the needs of users for data and information products. The IODE system has become a worldwide service-​oriented network consisting of designated national agencies (DNAs), national oceanographic data centres (NODCs),

  See http://www.jcommops.org/sot/soop (last accessed 27 April 2018).  See http://​w ww.gloss-​sealevel.org (last accessed 3 October 2016); IOC Annual Report 2007, 39 ff; IOC Annual Report 2008, 42 ff; for further details see Global Sea Level Observation System, ‘Implementation Plan 2012’ IOC Technical Series, vol 100. 163 164 165   IOC/​Res XXII-​6.   See Ehlers (n 3) 1427 ff.   IOC/​Res I-​9. 161

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responsible national oceanographic data centres (RNODCs) and world data centres—​ oceanography (WDCs).166 This network collects, controls the quality of, and archives millions of ocean observations, and makes them available to member states. Additionally, research and observation institutions may join IODE by becoming associate data units (ADUs) and complement the network of NODCs.167 The work of IODE is coordinated by a project office, which has been established in Oostende, Belgium.168 The main objectives of the programme are to facilitate and promote the discovery, exchange of, and access to, marine data and information, to encourage the long-term archival, preservation, and management of all marine data and information, to develop best practices and international standards, and to assist member states to acquire the necessary capacity for data management.169 As a cross-​sectional activity, IODE assists more or less all IOC programmes. Special emphasis is given to the Ocean Teacher Global Academy project.170 IODE not only focuses on global activities, but also enhances the establishment of regional oceanographic data and information networks (ODINs).171 IODE also aims at the development of common standards to facilitate the management and exchange of data, although in the past these attempts were not successful, possibly owing to insufficient coordination with similar initiatives. In 2013 IODE established a new Ocean Data Standards and Best Practices Project in collaboration with JCOMM. It concerns in particular the processing of data and data quality flagging to ensure data consistency.172 Agreement on ocean data standards could be reached with regard to the adoption of specific ISO standards and a quality flag scheme for the exchange of oceanographic and marine meteorological data.173 The IOC also published guidelines for a data management plan,174 which provides guidance on the preparation of such a plan, the activities to consider, and suggested actions.175 (iii) Ocean Biogeographic Information System An important programme with regard to marine biodiversity is the Ocean Biogeographic Information System (OBIS), which was originally developed in 1997 by the Census of Marine Life programme and was adopted by the IOC as one of its IODE activities, thus adding biological data to its data coverage.176 OBIS aims at providing an open-​access database to make marine biogeographic data, from all over the world, freely available. OBIS is organized around national, regional, and thematic OBIS nodes, which are responsible for the data flow from data providers to the central OBIS node, including data quality assurance. It holds 46 million observations of 166  See http://​w ww.iode.org/​index.php?option=com_​content&view=article&id=385& Itemid=34 (last accessed 3 October 3016). 167   67 NODCs and 14 ADUs are listed (as of 2015), IOC-​X XVIII/​3, 28. 168 169   IOC Annual Report 2005, 57 ff.   Recommendation IOC/​IODE-​X XII.15. 170   See below section 2.5.3. 171   At present IODE is active in seven regional ODIN projects, IOC/​EC-​X LIX/​2 Annex 1, 10. 172   See Ocean Data Standards, Volume 3, IOC Manual and Guides 54, 1. 173 174   IOC Manual and Guides 54, Volumes 1–​3.   IOC Manual and Guides 73. 175   See IOC/​EC-​X LIX/​2 Annex 1, 10. 176   IOC Annual Report 2009, 38; for details see http://​w ww.iode.org/​index.php?option=com_​content &view=article&id=189& Itemid=143 (last accessed 3 October 2016).



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117,000 marine species and provides a baseline, which can be used for ocean conservation policies.177 A new data standard to manage and exchange datasets that holds both species occurrences as well as environmental measurements is under development.178 The significance of OBIS as a global data and information-​sharing platform and a data clearing-​house mechanism for marine biodiversity research data has become more visible since negotiations started at the UN for a new legally binding instrument under UNCLOS to conserve and use marine biodiversity sustainably in areas beyond national jurisdiction.179 (iv) Bathymetric data of the ocean Other important information bases for ocean-​related activities, including ocean governance, are bathymetric data of the ocean. For this purpose, the IOC, jointly with IHO, is leading the GEBCO project,180 the history of which dates back to the end of the nineteenth century. The aim is to develop and improve the portrayal of global ocean depths on a continuing basis. For this purpose, an international group of experts works on the development of a range of bathymetric data sets and data products.181 GEBCO relies largely on the voluntary efforts of an international collaborating community of scientists and hydrographers and is open to all those interested in mapping the ocean floor.182

(e) Ocean assessment The collection and mere compilation of ocean data alone is not sufficient for providing a solid basis for governance activities, but they must result in appropriate assessments of the state of the oceans, which are an important component of a science/​ policy interface. Such an assessment requires physical, chemical, biological, and geological data of the oceans, but has to be supplemented by socio-​economic and ecological data. In the past, assessments of the status of sea areas were undertaken within the UNEP Regional Seas Programmes, particularly by the Helsinki Commission and the OSPAR Commission, whereas there was a lack of assessments concerning the oceans as a whole. (i) Assessment of assessments Given the alarming signs of degradation in the world’s oceans, the WSSD183 decided to establish a regular process under the UN for global reporting and assessment of the state of the marine environment, including socio-​economic aspects,   IOC Biennial Report 2012–​2013, 43, Biennial Report 2014–​2015, 34; see also below Part B III 5 d.   IOC/​EC-​X LIX/​2 Annex 1, 10. 179   See IOC Biennial Report 2014–​2015, 52; IOC/​EC-​X LIX/​2 Annex 1, 18; OBIS is explicitly noted with appreciation by United Nations A/​R ES/​70/​235, para 254. 180   IOC/​IHO Memorandum of Understanding 2000, s (a). 181   For details see http://​w ww.gebco.net. (last accessed 3 October 2016); revised terms of reference were adopted by Decision IOC-​X XVIII/​6.2, IOC-​X XVIII/​3, 21. 182   IOC Biennial Report 2014–​2015, 36 ff; IOC has recently enhanced its involvement by Decision IOC/​ EC-​X LIX/​4.4. 183  See n 21. 177 178

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both current and foreseeable, building on existing regional assessments. In 2005 the UNGA requested the IOC and the UNEP to lead the start-​up phase by conducting an assessment of assessments (AoA).184 Led by the IOC and UNEP and with the support of IMO, WMO, and FAO, a group of experts assessed the various global and regional assessments in existence. The report of the experts, launched by the IOC and UNEP in 2009, assembles information on scientific assessments, critically appraises these assessments, assesses how well they have been communicated to policy-​makers, and makes proposals for a global integrated ocean assessment.185 (ii) World ocean assessment In 2010 the report served as a sound basis for the UNGA to set up a regular process for global reporting and assessment of the state of the marine environment, called World Ocean Assessment (WOA). The UNGA established a group of experts to prepare a first assessment report and invited the IOC, UNEP, IMO, and FAO to provide scientific and technical support.186 The support by the IOC mainly focused on assistance with the information and data management component in particular through IODE, the organization of regional workshops, the conduct of capacity-​building activities, and the provision of assessment products, data, and results to the group of experts.187 Hundreds of scientists from many countries, representing various disciplines, examined the state of knowledge of the world’s oceans and the ways in which humans benefit from it and affect it.188 The first WOA was completed in 2015. The UNGA welcomed the assessment with appreciation, approved its summary, and endorsed a new cycle of assessment (2016–​20).189 The WOA provides an important scientific basis for ocean governance. According to the UN Secretary General, the findings indicate that the oceans’ carrying capacity is near or at its limit. It is clear that urgent action on a global scale is needed to protect the world’s oceans from the many pressures they face.190 (iii) Transboundary waters assessment The effective management of waters that extend across or lie beyond national boundaries, referred to as transboundary waters, suffers from the lack of a systematic, global comparative assessment on their changing conditions. To meet these challenges, GEF has established a transboundary waters assessment programme (TWAP), which is coordinated by UNEP as the implementing agency.191 In collaboration with UNEP, the marine components of the programme, consisting of large marine ecosystems and

  UNGA Res 60/​30, UN Doc A/​R ES/​60/​30; see IOC-​X XV/​3, 26 ff.   An Assessment of Assessments—​Findings of the Group of Experts, UNEP (DEPI)/​RS.12/​4; see IOC-​X XV/​3; IOC Annual Report 2009, 10 ff. 186   UNGA Res 65/​37, UN Doc A/​R ES/​65/​37; see IOC-​X XVI/​3, 13 ff; IOC Annual Report 2010, 44; IOC/​ INF-​1282. 187   IOC-​X XVI/​3; for further details see IOC Annual Report 2012–​2013, 50. 188 189   IOC/​EC-​X LIX/​2 Annex 1, 14.   UNGA Res 70/​235, UN Doc A/​R ES/​70/​235, pt XII. 190   See in detail First Global Integrated Marine Assessment (First World Ocean Assessment), http://​ www.un.org/​Depts/​los/​global_​reporting/​WOA_​RegProcess.htm (last accessed 3 October 2016). 191  See http://​w ww.geftwaatorg/​t wap-​project (last accessed 3 October 2016). 184 185



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the open ocean, are led by the IOC.192 The programme provides a number of core ecological, socio-​economic, and governance indicators for the marine environment using globally available datasets.193 The assessments for large marine ecosystems and the open ocean, conducted under this programme, were published in 2016;194 they are supplemented by assessments of governance arrangements for the oceans.195 The results of the programme complement the WOA report.196 (iv) OBIS contribution An important contribution to various assessment activities is made by OBIS. In particular, OBIS data have been used for the WOA and the oceans component of the TWAP, including the development of marine biodiversity indicators. In addition, OBIS is one of the key partners of the Inter-​governmental Science/​Policy Platform on Biodiversity and Ecosystem Services, which is an inter-​governmental body under the auspices of UNEP, UNESCO, FAO, and UNDP. Its objective is to organize regional and global assessments to strengthen the science/​policy interface on biodiversity and ecosystem services,197 including the ocean.198 Closely linked with the systematic compilation of HAB data in OBIS, experts are working on a global HAB status report with the aim of providing an overview of HAB events and their societal impacts.199

(f) Information and warning systems (i) GOOS and HAB services The research and observation activities of the IOC are not only part of the endeavours for building scientific knowledge about the oceans, but specifically provide a valuable basis for establishing information and warning services, in most cases on a regional or even larger level, aiming at the preparedness to mitigate ocean-​related hazards. Especially GOOS offers the possibility to build up forecast services, which are of high significance not only for shipping, fisheries, offshore activities, and aquaculture, but also for coastal defence and monitoring of the marine environment. A good example is the Copernicus marine service established by the European Commission.200 Another example are the HAB activities,201 which focus very much on the improvement of   IOC Annual Report 2010, 45; see also 3 ff, http://​w ww.un.org/​depts/​los/​general_ ​assembly/​contributions_​2016/​IOC_​Contribution_​to_​ICP_​on_​marine_​debris.pdf (last accessed 3 October 2016). 193  IOC Biennial Report 2014–​ 2015, 45, IOC/​ EC-​ X LIX/​ 2 Annex 1, 15; for details see http://​ onesharedocean.org (last accessed 3 October 2016). 194   Transboundary Waters Assessment Programme, ‘Large Marine Ecosystems—​Status and Trends, vol 4’ (2016); Transboundary Waters Assessment Programme, ‘The Open Ocean—​Status and Trends, vol 5’ (2016). 195  Transboundary Waters Assessment Programme, ‘Assessment of Governance Arrangement for the Ocean, vol 1:  Large Marine Ecosystems, vol 2:  Areas Beyond National Jurisdiction’ (2015) 2 IOC Technical Series 119. 196   IOC-​X XVIII/​3, 20. 197   For details see http://​w ww.ipbes.net (last accessed 3 October 2016). 198   IOC Biennial Report 2014–​2015, 46, IOC/​EC-​X LIX/​2 Annex 1, 15. 199   IOC/​EC-​X LIX/​2 Annex 1, at 13. 200   See marine.copernicus.eu/about-us/about-your-copernicus-marine-service (last accessed 27 April 2018). 201   See above section 2.3.3(b)(iv). 192

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management and mitigation options, among others by providing specific training courses.202 (ii) Tsunami warning systems Since the 1960s the IOC has paid special attention to tsunami warning systems. Although all regions of the world may be affected by tsunamis, they occur more commonly in the Pacific Ocean where a Pacific Tsunami Warning Centre, owned by the participating states, was established in 1949. For support of the member states in assessing tsunami risk, implementing tsunami early warning systems, and in educating communities at risk about preparedness measures, the IOC established the Inter-​ governmental Coordination Group for the Pacific Tsunami Warning and Mitigation System in 1965. The warning systems are based on observation networks of seismometers and sea-​level measuring stations, which send real-​time data to national and regional warning centres. The most devastating tsunami in 2004 in the Indian Ocean, where no warning system existed, led to a mandate of the IOC to coordinate the establishment of regional tsunami early-​warning systems in the Indian Ocean, the Mediterranean, and the Caribbean. As a result, Inter-​governmental coordination groups for the Indian Ocean, for the Caribbean Sea and adjacent regions, and for the North-​eastern Atlantic, the Mediterranean, and connected seas were set up in addition to the existing Pacific Group. These groups support the IOC member states in the implementation of end-​to-​end tsunami early-​warning systems, including the emission of understandable tsunami warnings.203 The work of the groups is coordinated and harmonized by the Working Group on Tsunami and other Hazards related to Sea-​level Warning and Mitigation Systems. Recently, this group completed a standard operating procedure manual.204

2.4  Enhancement of Ocean Governance 2.4.1 UN activities Ocean research and observation as well as the IOC’s work concerning the collection and exchange of data and the assessment activities are closely related to the aim of the IOC to enhance ocean governance through a shared knowledge base and improved regional cooperation. This has become even more important under SDG No 14 of the 2030 Agenda205 as several targets are directly relevant to the IOC’s work. The IOC had supported the preparatory process and co-​led a dedicated UN Task Force on SDG No 14. Currently, it plays an active role in the definition of a global indicator framework for specific targets,206 where it has been identified as a

  See IOC Biennial Report 2014–​2015, 44.   See IOC Annual Report 2005, 21 ff; IOC Annual Report 2006, 60 ff; IC Annual Report 2007, 64 ff; IOC Annual Report 2008, 28 ff; Annual Report 2009, 28 ff; IOC Annual Report 2010, 27 ff; http://​w ww. ioc-​tsunami.org/​index.php?option=com_content&view=article&id=12&Itemid=11&lang=en (last accessed 3 October 2016); for details about the recent work see IOC/​EC-​X LIX/​2 Annex 1, 11 ff. 204 205   IOC/​EC-​X LIX/​2 Annex 1, id.   See above section 2.3.3. 206   Targets 14.1, 14.2, 14.3, and 14.a; see n 25 above. 202 203



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possible custodian agency.207 The IOC also placed much programmatic and outreach focus around climate change in the perspective of the FCCC Conference 2015.208 In 2016 the IOC co-​organized the Second Blue Economy Summit in Abu Dhabi, aimed at discussing how to develop and implement the blue economy concept in support of the implementation of the Paris Agreement and the realization of SDG No 14.209 In addition, the IOC contributed to and participated in other relevant ocean-​related conferences, such as the third UN Conference on Small Island Developing States and the second International Ocean Research Conference.210

2.4.2 Integrated coastal management An important issue in this context is coastal area management, which has to address environmental, economic, and social pressures in coastal areas. In support of the development of integrated coastal area management (ICAM), which was an important issue at UNCED,211 the IOC established in 1997 a programme that addresses coastal zone problems through activities of a  more cooperative, coordinated, and interdisciplinary nature and ensures good coordination among existing international efforts related to the coastal zone.212 The IOC understands its role as a lead organization in ICAM, especially with regard to the development and implementation of decision-​ support tools.213 Inter alia, the IOC has focused on the development and use of indicators to appraise the effectiveness of ICAM efforts.214 The promotion of ICAM requires, above all, activities at the regional and country level.215 Recent endeavours are in particular directed towards the enhancement of the use of ICAM tools in the South-​east Pacific region, including the gathering of data, design of indicators, workshops, and production of training tools,216 as well as the strengthening of institutional and scientific networks.217 The IOC participates in corresponding European projects, such as the PEGASO project, which supports integrated policies for the coastal, marine, and maritime realms of the Mediterranean and Black Sea basins218 and AQUACROSS, which focuses on advancing the knowledge base and application of the ecosystem-​based management concept for aquatic ecosystems by developing cost-​effective measures and integrated management practices.219

208   IOC/​EC-​X LIX/​2 Annex 1, 16 ff.   See n 89 above.   IOC/​EC-​X LIX/​2 Annex 1, 17. 210   Both conferences were held in 2014; see http://​w ww.un.org/​depts/​los/​general_ ​assembly/​contributions_​2015/​IOC.pdf (last accessed 3 October 2016). 211   Agenda 21, ch 17, Programme Area A. 212   IOC/​Res XIX-​5; IOC/​EC/​Res XXXI.5; IOC/​EC-​X XX1/​3, 30. 213   IOC Annual Report 2010, 53. 214   See IOC Annual Report 2004, 48 ff; IOC Annual Report 2005, 17; IOC Annual Report 2007, 18, 54; for details see IOC Manuals and Guides, ‘A Reference Guide on the Use of Indicators for Integrated Coastal Management’ 45. 215   IOC-​X XVI/​3, 32 ff. 216   IOC Annual Report 2010, 52, 55; IOC Biennial Report 2014–​2015, 50; IOC-​X XVIII/​3, 40 ff; IOC/​ EC-​X LIX/​2 Annex 1, 15; IOC/​INF-​1329, 2 ff; IOC/​INF-​1331, 2. 217   IOC Biennial Report 2014–​2015, 50. 218   IOC Biennial Report 2012–​2013, 48; IOC-​X XVIII/​3; IOC/​INF-​1329, 5 ff; IOC/​INF-​1331, 2 ff. 219   IOC/​EC-​X LIX/​2 Annex 1, 16; IOC/​INF-​1329, 6 ff. 207

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In the context of ICAM, a guide has been published to assist policy-​makers and managers in the reduction of the risks to coastal communities, their infrastructure, and service-​providing ecosystems from tsunamis, storm surges, and other coastal hazards within the framework of ICAM.220 A  new guide on coastal risk reduction for local authorities is under preparation.221 In 2011 the IOC specified the strategic objectives for the ICAM programme, which aim at the further development and the application of management tools and at the promotion of climate change adaption and coastal hazards preparedness.222

2.4.3 Marine spatial planning The IOC is one of the forerunners for developing technical guidance on marine spatial planning,223 which is a major decision-​support tool for ICAM to balance increasing conflicts among the multiple users and marine environment protection. The concept advocated by the IOC is based on a process that brings together multiple users of the ocean—​including energy, industry, government, conservation, and recreation sectors—​to make science-​based coordinated decisions about how to use marine resources sustainably. Through the planning and mapping process of a marine ecosystem, planners can consider the cumulative effects of human activities on the ocean.224 A first guide, which was published in 2009,225 was replaced in 2014 by a new set of international guidelines on evaluating marine spatial planning.226 To strengthen the international network of marine spatial planning practitioners, the IOC is currently working on documentation of ocean planning practices worldwide.227

2.4.4 Large marine ecosystems The IOC also supports endeavours to strengthen the governance of large marine ecosystems (LMEs), in particular by participating in various relevant projects.228 A new project, funded by the GEF, aims at the establishment of a global network of LME practitioners through enhanced sharing and application of knowledge and information tools. The IOC co-​leads the project together with the UNDP,229 provides the technical secretariat, and conducts the project in partnership with NOAA,230 ICES, UNDP, IUCN, and CI.231 As a partner in the GOBI,232 the IOC contributes to define 220  IOC Manuals and Guides, ‘Hazard Awareness and Risk Mitigation in Integrated Coastal Management’ 50. 221 222   IOC/​INF-​1329, 9.   IOC-​X XVI/​2 Annex 11, 4; IOC-​X XVI/​3, 33; IOC/​INF-​1329, 1. 223 224   See IOC Annual Report 2006, 56 ff.   See IOC Biennial Report 2014–​2015, 49. 225   See IOC Annual Report 2010, 55, IOC Biennial Report 2012–​2013, 46. 226   IOC Manuals and Guides, ‘A Guide to Evaluating Marine Spatial Plans’ 70; see IOC/​INF-​1331, 1. 227   IOC Biennial Report 2014–​2015, 49; IOC/​EC-​X LIX-​2 Annex 1, 15. 228   See also above section 2.3.3(e)(iii); the significance of LMEs is clarified by Duda and Sherman (n 96). 229   United Nations Development Programme. 230   National Oceanic and Atmospheric Administration; NOAA is an agency within the US Department of Commerce. 231   See IOC Biennial Report 2012–​2013, 40; IOC Biennial Report 2014–2015, 51; IOC/​EC-​X LIX/​2 Annex 1, 16. 232   See above section 2.3.3(b)(v).



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and assess scientific criteria to establish MPAs and to make recommendations for best practices of global regulation and governance of high seas MPAs.233 For promoting an ecosystem-​based management approach, the IOC also supports the international programme IndiSeas, which integrates multi-​ disciplinary ecosystem indicators, including climate change, biodiversity, and human dimensions to evaluate the status of the world’s exploited marine ecosystems.234

2.4.5 Regional partnerships Specific projects are related to the promotion of partnership and cooperation with the aim of strengthening the science/​policy interface on the regional level. Recently, this has included a project on integrated data and information products and services for the management of ocean and coastal zones in Africa;235 the cooperation in the Western Pacific and adjacent regions concerning the development, coordination, and implementation of considerable activities across the three key thematic areas of ocean processes, marine biodiversity, and food security and ocean ecosystem health;236 and assessments, reviews, and future predictions on sustainable development for the Caribbean and adjacent regions.237

2.5  Capacity Development 2.5.1 The need for assistance It is obvious that sustainable ocean governance cannot be accomplished by highly developed states alone, but requires the commitment of all states affected by ocean-​ related issues. However, their contributions on a  global, regional, and country level crucially depend on their capacity with regard to ocean matters. Many large coastal states as well as small island states are still developing countries and, therefore, need support and assistance from highly developed countries and the international community to empower them with the knowledge and skills to benefit and manage oceans and coasts in an equitable and sustainable way.238 Accordingly, Article 244(2) of UNCLOS obliges states and competent international organizations actively to promote the flow of scientific data and information and the transfer of knowledge resulting from marine scientific research, especially to developing states, as well as the strengthening of the autonomous marine scientific research capabilities of developing states through, inter alia, programmes to provide adequate education and training of their technical and scientific personnel. In its annual resolution on the oceans and the law of the sea, the

  See IOC Annual Report 2010, 52, 54.   IOC Biennial Report 2012–​2013, 40, see also http://​w ww.indiseas.org (last accessed 3 October 2016). 235   ODINAFRICA-​IV, see Biennial Report 2014–​2015, 53. 236   See IOC Biennial Rep 2014–​2015, 53 ff, see also http://​iocwestpac.org/​news/​392.html (last accessed 3 October 2016). 237   See IOC Annual Report 2014–​2015, 54; IOC/​EC-​X LIX/​2 Annex 1, 16. 238   Cf IOC/​Res XXVI-​5, Annex. 233

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UNGA regularly reiterates the need for cooperation, including capacity building and transfer of marine technology to ensure that all States, especially developing countries, in particular the least developing countries and small island developing States as well as coastal African States are able to . . . benefit from the sustainable development of the oceans and seas, as well as to participate fully in global and regional forums and processes dealing with oceans and law of the sea matters.239

2.5.2 Strategic approach From the outset, starting with the first International Indian Ocean Expedition,240 the IOC is strongly involved in capacity development. Since 1982, the activities were based on the IOC’s Comprehensive Plan for a Major Assistance Programme to Enhance the Marine Science Capabilities of Developing Countries.241 During the past decades, diverse activities for promoting education and training have been initiated, very often labelled with the acronym TEMA (training, education, and mutual assistance).242 The increasing need for better ocean knowledge, the more and more visible threats to marine ecosystems, the growing use of the oceans and marine resources, and the demands for sustainable development make it necessary to accelerate capacity development efforts continuously.243 In this respect, the IOC plays a unique role as the competent international organization dealing with ocean science, services, and capacity building244 by fostering cooperation for sustained observations of the oceans, and generating oceanographic data and information products and services, and interaction between research, operational, and user communities and decision-​makers.245 In 2015 the IOC adopted a new capacity development strategy.246 This strategic framework provides six outputs and thirteen fields of activities detailed in numerous actions. The outputs call for investing in people and the institutions of which they are a part, enhancing access to scientific tools and methodologies, reinforcing the IOC’s capabilities to provide services to member states, enhancing the communication between scientific and policy-​makers’ communities, expanding ocean literacy in civil society, and mobilizing resources to accomplish these goals.247 In implementing the strategy an ‘IOC Capacity Development Fund’ is being launched as a resource mobilization mechanism to enable member states to financially support specific activities.248

  UNGA Res 70/​235, UN Doc A/​R ES/​70/​235, preambulary part, para 12.   Originally co-sponsored by UNESCO and SCOR, http://​w ww.incois.gov.in/​portal/​iioe/​aboutus. jsp (last accessed 3 October 2016); see IOC Biennial Report 2014–​2015, 55. 241 242   IOC/​INF-​612.   See IOC Annual Report 2004, 78; IOC Annual Report 2006, 26 ff. 243 244   See IOC Biennial Report 2014–​2015, 56.   Cf IOC/​Res XXVI-​12. 245   IOC/​INF-​1332, 9; see IOC Biennial Report 2014–​2015, ibid. 246   IOC/​Res XVIII-​2; IOC Development Strategy, 2015–​2021, IOC/​INF-​1332. 247 248   IOC/​INF-​1332, 10, 15 ff.   IOC/​EC-​X LIX/​2 Annex 1, 19. 239

240



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2.5.3 Specific activities Aspects of capacity development are taken into account for all thematic areas the IOC is dealing with. For a long time, the IOC has established education and research programmes, organized training courses, facilitated regional networks of scientists and stakeholders, and enabled the exchange of knowledge and experience through conferences, workshops, and exhibitions.249 To support the institutional processes on ICAM and marine spatial planning, guidelines, training materials, and tools have been developed.250 Essential contributions are made in particular by IODE and OBIS with regard to the capability to manage, publish, access, and use marine data. A  quite remarkable action is the Ocean Teacher Global Academy. It started at the IOC project office for IODE in 2005 as a global learning and training centre and was further developed as an ocean teacher learning platform, which in 2014 became the Ocean Teacher Global Academy aiming at establishing a network of regional training centres all over the world. It provides a tool for capacity development activities, not only for data management, but increasingly also for other IOC programmes, such as coastal and marine management and planning, HAB, and the tsunami warning system.251 For a long time, IODE has developed regional programmes for capacity building related to ocean data and information management by establishing regional ODINs. They cover Africa, Latin America and the Caribbean, European countries in transition, the Black Sea, and the WESTPAC region.252

2.5.4 Regional focus The IOC focuses its capacity-​development activities on the needs of the different regions. In line with the UNESCO Global Priority Africa Programme, this continent is one of the major regions for closer cooperation and capacity-​building activities in the domain of marine sciences and operational oceanography.253 The wide range of topics includes aspects dealing with the impacts of adaptation to climate change in the coastal zones,254 the enhancement of capabilities to safeguard marine resources,255 ocean forecasting, marine geospatial information systems, the application of remote sensing to coastal management, and marine spatial planning.256 In the WESTPAC region, the IOC encourages self-​driven approaches to capacity development in the region 249  Information about the far-​ reaching specific activities is regularly reported; see IOC Annual Report 2004, 78 ff; IOC Annual Report 2005, 19 ff, 60 ff; IOC Annual Report 2006, 21 ff; IOC Annual Report 2007, 21, 24 ff; IOC Annual Report 2008, 8 ff; IOC Annual Report 2009, 12 ff; IOC Biennial Report 2014–​2015, 57 ff. 250   IOC/​INF-​1329, 7. 251   See IOC Biennial Report 2014–​2015, 32 ff.; IOC/​EC-​X LIX/​2 Annex 1, 9. 252   Cf IOC Annual Report 2008, 15; for recent activities see IOC/​EC-​X LIX/​2 Annex 1. 253   See IOC-​X XVI/​3, 7 ff.; IOC Annual Report 2008, 17 ff; IOC Annual Report 2009, 18 ff; IOC Annual Report 2010, 16 ff. 254   An important outcome are the Coastal Adaptation Guidelines for Local Decision Makers, IOC Manuals and Guides 62, cf IOC Biennial Report 2012/​2013, 37. 255 256   See Biennial Report 2014–​2015, 56.   See IOC/​EC-​X LIX/​2 Annex 1, 19.

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with guiding principles to focus on regional and national needs, to foster North–​South and South–​South cooperation, and to link training to the attainment of research goals addressing critical challenges to sustainable development in the region. A major issue is the establishment of regional training centres.257 Recent capacity-​development activities in the IOCARIBE region include, among others, aspects concerning the vulnerability especially of small island developing states to climate change and its impact on their economies and sustainable development, marine spatial planning and integrated coastal area management, and tsunami early warning and preparedness.258 After the revitalization of the IOCINDIO,259 the work in that region is concentrating on the establishment of regional educational centres for oceanography.260

2.5.5 Transfer of marine technology An essential component of capacity development concerns the transfer of marine technology. Accordingly, Article 266 of UNCLOS stipulates that states, directly or through competent international organizations, shall cooperate to actively promote  the development and transfer of marine science and marine technology on fair and reasonable terms and conditions. The need for the transfer of marine technology was repeatedly reaffirmed by UNCED, 261 WSSD, 262 UNCSD, 263 and the annual resolutions of the UNGA on the ocean and the law of the sea.264 The IOC is recognized as the competent international organization through which states shall promote the establishment of generally accepted guidelines, criteria, and standards for the transfer of marine technology taking into account, in particular, the interests and needs of developing states.265 Following this mandate, the IOC assists developing states in the transfer of marine technology and enhances its voluntary transfer to states on mutually agreed terms.266 Most importantly, ABE-​LOS has developed criteria and guidelines on the transfer of marine technology, which, after endorsement by the IOC Assembly, 267 were published in 2005.268 They are explicitly taken into account by target 14(a) of the 2030 Agenda for Sustainable Development and will enable states to benefit on an equitable basis from developments in marine science-​related activities. A comprehensive information brochure of recent and ongoing IOC activities supporting the transfer of marine technology was published in 2015.269

  See IOC Annual Report 2010, 19; IOC Biennial Report 2014–​2015, 58; IOC/​EC-​X LIX/​2 Annex 1. 259   See IOC Biennial Report 2014–​2015, 60.   See above Part B I 3. 260 261   IOC/​EC-​X LIX/​2 Annex 1, 20.   Agenda 21 ch 17, para17.2. 262   Johannesburg Declaration on Sustainable Development, para 18; Plan of Implementation of the World Summit on Sustainable Development, para 28. 263   The Future We Want (n 24) Part V.A para 160. 264   UNGA Res 70/​235, UN Doc A/​R ES/​70/​235, preambulary Part, para 12, Part II para 28. 265 266   UNCLOS, art 271; see IOC-​X XVI/​3, 8.   IOC/​Res XXVI-​5, Annex. 267   IOC/​Res XXII-​12. 268   IOC Criteria and Guidelines on the Transfer of Marine Technology, IOC/​INF-​1203. 269   UNESCO–​IOC, ‘Transfer of Marine Technology: Knowledge Sharing and Capacity Development for Sustainable Ocean and Coastal Management’ IOC/​BRO/​2014/​3. 257

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2.6 Conclusions The evaluation of the IOC’s work allows the following conclusions. With its broad range of activities, the IOC essentially contributes to ocean governance by improving the knowledge of the oceans as an irreplaceable precondition for efficient and successful governance measures. The IOC’s strategic orientation has increasingly been directed by the needs of a sustainable marine development, taking into consideration the use and protection of the seas, as well as the impacts of climate change including adaptation and coastal defence measures. A great number of marine research projects that are relevant for ocean governance are initiated or enhanced, and coordinated by the IOC. As an inter-​governmental organization, the IOC is not conducting research activities itself, but gives significant support by performing management and secretariat functions, which also include the organization of conferences and other expert meetings. For a long time the IOC has made clear that scientific research alone is not sufficient to improve marine knowledge, but that it must be complemented by long-​term, sustainable ocean observation activities. One of the great achievements is the establishment of GOOS, albeit still incomplete, and its integration into other earth observation systems. The work is not limited to generating information about the seas, but includes its compilation and interpretation in such a way that it may serve as a useful basis for decision-​making. In this context, the work on data and information management, in particular driven by the IODE project office in Oostende, Belgium, is of outstanding value. No less important, as concerns the science/​policy interface, are the activities to support an appropriate assessment of the state of the oceans. Beyond merely generating additional knowledge, the IOC takes a step further by promoting the establishment of specific information and warning systems. Especially noteworthy is the lead function of the IOC with regard to tsunami warning systems. This continues in directly contributing to and participating in ocean governance activities. The IOC is not only involved in concrete UN projects and law-​making processes, such as the development of a legally binding instrument on marine biodiversity beyond national jurisdiction, or conferences in the framework of the CBD and the FCCC, but the IOC also plays a leading role in specific substantial issues, in particular coastal area management, marine spatial planning, and the governance of large marine ecosystems. In this regard, it is increasingly clear that ocean governance also requires a response to regional needs. Therefore, it is essential that the IOC supports regional cooperation, in particular in those parts of the world where countries are still at the developmental stage. However, it is also obvious that efforts to improve marine knowledge as a basic prerequisite for sustainable development need the active involvement of all affected states. This gives particular weight to the IOC’s activities concerning capacity development, including the transfer of marine technology, all the more so as technical assistance for developing countries usually does not focus primarily on marine issues. The IOC carries out the work within a tight and intensive network of inter-​ governmental and international NGOs, interested and volunteering states, and

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institutions. This corresponds to the UNCLOS requirement of a close international cooperation as a prerequisite of ocean governance and enables to the greatest extent the mobilization of expertise and competence available, not to forget the necessary dialogue on ocean-​related issues. However, too many linkages can lead to impeding interdependencies, unclear responsibilities, interface problems, and an attitude that taking part is everything, regardless of the substance of contribution. A separate consideration would be needed whether the necessary international cooperation for ocean governance could best be reached by a tight network of existing bodies or by a new world oceans organization,270 integrating all ocean-​related responsibilities within one organization. Although the IOC is an inter-​governmental body, the member states are primarily represented by scientific experts who often are not sufficiently mandated to enter into real commitments on behalf of their governments. That leads to a weakness of IOC decisions, which becomes visible by wordings such as ‘Member States are invited’ or ‘urged’ or ‘the IOC calls upon Member States’. When dealing with standard setting (one of the tasks resulting from UNCLOS) the IOC, up to now, has not been very successful. That includes the scientific field as well as the data management. The agreed principles for data exchange as well as the standards dealing with Argo floats and the guidelines for the transfer of marine technology are very general and do not really introduce an obligation to apply them. Even if the IOC is only a consultative organization without any powers for law-​making, more could be done for the compliance with its standards, at least as a precondition for participating in and benefiting from IOC projects. This unsatisfactory situation is significantly illustrated for GOOS. All attempts, particularly in the 1990s, to provide a legal instrument as a basis for a binding commitment of member states, in the end failed.271 Another problem can arise as the IOC is still dependent on UNESCO. Despite its functional autonomy, the IOC cannot take any final decisions on its regular budget, as it is part of the UNESCO budget and thus allocated by UNESCO. In no way can the IOC oblige member states to provide additional financial support. Even if the IOC decides to establish specific funds such as the envisaged Capacity Development Fund,272 it can only call for voluntary contributions. Irrespective of some weaknesses, it can be concluded that the IOC plays an irreplaceable role for improving the knowledge of the seas as a prerequisite for ocean governance. In particular in the last years, the IOC has shown that within its mandate all endeavours are taken to meet the needs of sustainable ocean development and to make all contributions possible. Surely this will continue in future.

  Such a proposal has been made by the German Advisory Council on Global Change (WBGU), ‘World in Transition: Governing the Marine Heritage’ (Flagship Report 2013) 4, 8, and 253. 271   Cf Ehlers (n 3) 1425.    272  See above section 2.5.2. 270

3 The Work of the International Civil Aviation Organization in Respect of Global Ocean Governance Gerasimos Rodotheatos

3.1  A Brief Introduction Air law is still considered to be one of the youngest branches of international law. The first most important international agreement on air law was the International Air Navigation Convention (Paris Convention) signed just after the end of the First World War (1919) that, among others, foresaw the establishment of the International Commission for Air Navigation (ICAN). ICAN’s main task was to oversee the regulation of international air navigation, mainly focusing on public international law aspects. Even though its work has been characterized as ground-​breaking, several deficiencies (such as limited participation) kept the achievements threshold at a low level,1 a sentiment that was compared with the general failure of the League of the Nations system. The importance of the role of aviation in the post-​conflict period succeeding the Second World War was conceived by the Allied Powers even before the war had ceased. To this end, the International Aviation Conference was held in Chicago, in late 1944. The final outcome of this summit, known as the Convention on International Civil Aviation (Chicago Convention), aims at promoting civil aviation and air transport services in a safe, equal, and economic manner.2 The first part of the Convention contains a series of rules referring to the general principles of civil aviation, overflight and landing rights, aircraft and navigation affairs, and international standards and recommendations. The second part is not of less importance, as it envisages the creation of the International Civil Aviation Organization (ICAO). This new institution was meant not only simply to replace ICAN3 but also to be more effective and to retain a broader mandate of responsibilities.

  For a critique see David Mackenzie, ICAO: A History of the International Civil Aviation Organization (University of Toronto Press 2010) 15. 2   See the preamble of the Convention. 3   It is of great importance that the set-​up of the ICAO was initiated immediately after the signature of the Chicago Convention, as a hybrid institution was created under the title ‘Provisional International Civil Aviation Organization’ (PICAO). The PICAO was in effect for two years, pending the ratification of the Convention (1945–​1947), and its main task was to serve as a temporary advisory and coordinating body, which laid the foundations of the ICAO. See ‘The History of ICAO and the Chicago Convention’ http://​w ww.icao.int/​about-​icao/​History/​Pages/​default.aspx (last accessed 14 January 2017). 1

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The organization’s main goals could be listed under three categories:4 first, encouragement of international civil aviation and promotion of its benefits; secondly, preservation of the safety of flights and relevant equipment and installations; and thirdly, elimination of obstacles and easement of tensions related to civil aviation. Starting with just twenty-​ six members (1947), today the ICAO represents 192 member states and cooperates with 100 international institutions,5 thus gaining a leading position over international civil aviation affairs.

3.2  ICAO and Global Ocean Governance It is more than obvious that the ICAO is not one straightforward international marine organization,6 since there is no explicit reference to ocean and marine affairs throughout its founding text. So the question about the existence of a role for the ICAO in global ocean governance is essential. In trying to discover the potential position of the ICAO in the global ocean governance system, four features will be discussed: first, the similarities between air space and ocean space; secondly, the references in the Chicago Convention to the oceans and seas; thirdly, the mandate of the ICAO; and, fourthly, the delegation of relevant tasks to the ICAO by other international instruments. With regard to the first feature, the high seas and international air space are considered to be ‘open areas’, since they are characterized by the absence of any state sovereignty and are mainly governed by international rules and regulations. Moreover, these two areas co-​exist (up to a great degree),7 while there is a significant level of interaction between them.8 This vacuum of sovereignty is fulfilled   As set in art 44 of the Chicago Convention.   United Nations (UN)  agencies, programmes and commissions, other international organizations and non-​governmental organizations (either coming for the civil society or the aviation sector). See ‘Organizations able to be invited to ICAO meetings’ http://​w ww.icao.int/​about-​icao/​Pages/​Invited-​ Organizations.aspx#idIONonGov (last accessed 14 January 2017). 6   Bekiashev and Serebriakov divide international marine organizations into three types:  (i) international maritime organizations; (ii) international fisheries organizations; and (iii) international organizations concerned with marine sciences. According to their analysis, the ICAO fails to meet any of the criteria in order to be categorized as such an organization. See Kamil Bekiashev and Vitali Serebriakov, International Marine Organizations. Essays of Structure and Activities (Martinus Nijhoff Publishers 1981) XX and V–​VI. In a similar vein, Ehlers and Lagoni choose not to include the ICAO in their research of organizations contributing to a sustainable marine development. See Peter Ehlers and Rainer Lagoni (eds), International Maritime Organisations and their Contribution towards a Sustainable Marine Development (LIT Verlag 2006). 7   The high seas comprise those areas that are not contained by the internal waters, territorial seas, exclusive economic zones (EEZs), and archipelagic waters of coastal states (Law of the Sea Convention, art 86). On the other hand, international air space contains the aerial space above the high seas, as well as the contiguous zones and the EEZs or the continental shelves (Chicago Convention, arts 1–​2; Law of the Sea Convention, arts 49, 78, 135). 8   This interaction may have either natural characteristics: see eg the generation of waves by winds, or the absorption of atmospheric substances by the oceans; or it may stem from human activities, eg the pursuit of wrongdoing vessels by aerial means or helicopters taking off from naval ships. Moreover, according to the International Seabed Authority (ISA), ‘Marine environment includes the physical, chemical, geological and biological components, conditions and factors which interact and determine the productivity, state, condition and quality of the marine ecosystem, the waters of the seas and oceans and the airspace above those waters, as well as the seabed and ocean floor and subsoil thereof’. See ISA, 4 5



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by international legal instruments and the work of international institutions, on the one hand, plus the cooperation among states, on the other. The absence of a single and all-​encompassing authority over the oceans or international air space poses a demand for common perception, implementation, and enforcement of rules over a great volume of issues. With regard to the second feature, the Chicago Convention makes only two essential references to marine space, through which the legal regime of the air is connected to that of the sea.9 In Article 2, it is stated that territorial waters are considered to be part of the ‘territory’ of the state,10 in order for the issue of sovereignty over air space to be clarified (Article 1). This meant that the ICAO’s mandate on topics concerning the area over the territorial sea (and the internal waters) was restricted, although not barred. Additionally, the so-​called rules of the air11 that apply over the high seas should be the ones established under the Chicago Convention, thus giving the organization a leading position on the topic.12 The third feature concerns the ICAO’s mandate, according to Article 44 of the Chicago Convention, that is exclusively focused on aviation issues, but not only on air space issues. Consequently, since aviation, navigation facilities, and aircraft activities or incidents do interact or may take place in or in connection to the oceans, the spatial coverage of the ICAO’s authority seems to expand.13 Typical examples of legislative activity on issues not explicitly referred to in the organization’s mandate are environmental protection, offshore facilities requirements and in-​f light security issues, while many more that will be discussed later on are pushing the scope frontier for the organization. With regard to the fourth feature, the “Constitution of the Oceans” (see Law of the Sea Convention (LOSC)) that regulates ocean affairs in a detailed manner,

‘Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area’ ISBA/​6/​A/​18 (4 October 2000), reg 1.3(c). 9   This connection was later endorsed by the Convention on the Territorial Sea and the Contiguous Zone 1958, art 2 and the Law of the Sea Convention, art 2(2). Even though it has been commented that ‘air law implications of the new law of the sea received little attention at the 3rd UNCLOS’ (see Kay Hailbronner, ‘Freedom of the Air and the Convention on the Law of the Sea’ (1983) 77 AJIL 490, 493), the result of this conference makes many implicit and explicit references to air space, aircraft, and the ICAO, while the opposite is of course not the case for the Chicago Convention. These references seem to respect the pre-​existing rules, while at the same time the newly-​introduced concepts (eg EEZ, archipelagic waters, and transit passage) are incorporated in a compatible manner. This outcome came as no surprise since the negotiation of the final text of the 3rd UNCLOS lasted for about ten years, and entailed the participation of a variety of experts and the input of a significant number of interested organizations and stakeholders. 10   In late 1944 there was still no legally binding rule on the content of the territorial sea. This regulation, however, seems to enforce the general consensus over the customary perception of this zone being of exclusive and absolute sovereignty for the coastal state. 11   The rules that deal with the flight and manoeuvre of aircraft. 12   Dempsey comments in Paul Stephen Dempsey, ‘The Future of International Air Law in the 21st Century’ (2015) 64 ZLW 215, 215 that, owing to this clause, ‘ICAO has law-​making authority over 72% of the earth’s surface’. 13   Any relevant initiatives are not being considered as ultra vires acts as long as they are ‘matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate’, according to Chicago Convention, art 37. For a comment see Dempsey (n 12) 222.

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apart from safeguarding compatibility with other legal regimes, also calls for action on a series of mainly functional aspects, that it is not entitled to regulate or that demand regular updating.14 To this end, along with the study of implications on their mandate of the entry into force of the LOSC,15 various international organizations have carried out reports in order to identify any tasks delegated by this Convention. The ICAO’s relevant study remains silent on this issue,16 but a series of academic17 and official studies18 recognizes the organization’s competence in the fields of (i) establishment of the rules of the air (especially over the high seas and international straits); (ii) pollution through or from the atmosphere, land-​based sources, and dumping; (iii) identification markings and warning signals of installations; (iv) global and regional cooperation for the protection and preservation of the marine environment; (v)  scientific research and exchange of information and data about the pollution of the environment; (vi) scientific criteria for the formulation and elaboration of rules, standards, and recommended practices and procedures for the prevention, reduction, and control of pollution of the marine environment; (vii) programmes of scientific, educational, technical, and other assistance to developing states for the protection and preservation of the marine environment and the prevention, reduction, and control of marine pollution; and (viii) publication of reports on the risks and effects of pollution.

14   Treves has identified four types of clauses that ask for recourse to competent organizations, for a variety of issues, mainly environmental, fisheries, and safety. In most cases, the name of the organization is not explicitly mentioned, but rather it is left to member states to identify it. Apart from that, since the ‘competent organizations’ are not members of the LOSC, there is no legal obligation for them to take on the initiative, but rather it is an issue of the member states again. See Tullio Treves, ‘The Law of the Sea “System” of Institutions’ (1998) 2 Max Planck Ybk of UN Law 325, 327. The ICAO’s role is only once explicitly mentioned in art 39(3)a, dealing with aircraft in transit passage; since relevant regulations were already in place, there was no need to take incremental action. 15   In 1983, the ICAO Legal Committee asked the Secretariat to make a detailed study on the implications of the United Nations Convention on the Law of the Sea (UNCLOS) for the application of the Chicago Convention, its Annexes, and other international air law instruments. The study prepared by the Secretary General was sent to states and international organizations for comments and opinions. After that, the ICAO’s administrative head appointed a Rapporteur for the further study of the subject, who later on presented his report (details and full texts can be found in International Organizations and the Law of the Sea (1987) 3 NILOS Documentary Ybk). This particular item was removed from the agenda of the Legal Committee in 2008, without any final conclusion on the need for future amendments to the Chicago Convention. See Martin Pelletier, ‘Overflight of Organic Aircraft and the Territorial Sea’ (LLM thesis, Institute of Air and Space Law, McGill University 2010) 94. Compare this to IMO’s similar report that is regularly updated in order to follow current developments (published under the title ‘Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization’). 16   With the sole exception of pollution from or through the atmosphere and pollution by dumping, where the Conclusion 19.5 talks about ‘a new opportunity to ICAO member states and to the Council to draft appropriate standards and recommended practices in the futures’. See ICAO Legal Committee, ‘Consideration of the Report of the Rapporteur on “United Nations Convention on the Law of the Sea:  Implications, if any, for the application of the Chicago Convention, its Annexes and other international air law instruments’ ” (19 January 1987) Doc No LC/​26-​WP/​5-​1. 17   James Kingham and Donald McRae, ‘Competent International Organizations and the Law of the Sea’ (1979) 3 MP 106 and George Walker (ed), Definitions for the Law of the Sea. Terms Not Defined by the 1982 Convention (Martinus Nijhoff Publishers 2012). 18   Law of the Sea (1996) 31 UNDOALOS Bulletin and IMO Report ‘Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization’ (30 January 2014) LEG/​ MISC 8.



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Despite the vast array of issues mentioned in the LOSC, the ICAO has shown limited interest in engaging in activities or taking up initiatives. The organization’s relevant interests follow three trends. The first contains the classical issues, such as the publication of the rules of the air or the drafting of standards and recommended practices (SARPs) on identification markings and warning signals. These two items have already been included in its mandate since its foundation, so the ICAO did not have to take up any new or enhanced initiatives. The second contains the concurrent issues, such as the designation of the archipelagic sea lanes. This newly established institution initially caught the attention of the ICAO, but later the initiative was passed on to the International Maritime Organization (IMO).19 The last contains the emerging issues, namely pollution and environmental affairs. Even though LOSC provides for many different aspects of environmental protection, the ICAO during the past years has shifted its attention mainly onto climate change. To sum up, it is obvious that there exists a significant number of duties that the ICAO may or should assume on various ocean governance issues, but it seems that it has chosen to abstain from the majority of them. Turning now to the issue of institutional cooperation, the ICAO has proved to be one of the most receptive international organizations, as it maintains a list of about 100 international institutions that are granted the right to join its meetings and to provide input. Almost half of them are UN system organizations/​agencies and general interest organizations and the rest are organizations from the aviation sector. Interestingly, among those agencies belong some whose mandates concern ocean governance affairs, such as IMO, International Hydrographic Organization (IHO), International Association for the Physical Sciences of the Ocean, International Maritime Radio Committee, or the ITF. On the contrary, this openness of the ICAO is not reflected in terms of participation in the works of other organizations. To mention only the most important, the ICAO does not participate as an observer/​associate member in organizations such as the IMO, United Nations Educational, Scientific and Cultural Organization’s Intergovernmental Oceanographic Commission (UNESCO-IOC), or IALA, even though a significant amount of their work correlates to the ICAO’s mandate. At the top of this, the ICAO’s introversion is pinpointed by its absence of participation in the UN-​Oceans, an inter-​ agency mechanism whose task is to enhance the coordination, coherence, and effectiveness of competent organizations of the UN system in conformity with the LOSC.

3.3  The Three Pillars of Interaction This section discusses a series of long-​standing and emerging topics that fall under the ICAO’s mandate and are deeply related to ocean affairs and the mandate of marine organizations. The scope of this section is to prove that the ICAO should show more interest in ocean governance topics either by taking on initiatives or through cooperation with other competent organizations. 19   UNGA Report of the Secretary General ‘Impact of the Entry into Force of the 1982 United Nations Convention on the Law of the Sea on Related Existing and Proposed Instruments and Programmes’ (20 October 1997) UN Doc A/​52/​491, 9.

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3.3.1 Aviation The fundamental navigation and overflight rights over land and sea have been settled since the adoption of the Chicago Convention and were reinforced by the LOSC, having already obtained customary status. However, not all issues have been regulated in absolute detail, while some others ask for further clarification or improvement. Our attention focuses on three categories of issues that ought to be examined:

(a)  Residual rights and contentious issues of overflight in maritime zones While overflight rights over maritime zones have a clear status, there are some cases that need to be elaborated or improved. For example, innocent passage rules forbid the take-​off and landing of aircraft from vessels traversing the territorial sea. Should this rule also apply in cases of distress for a vessel? In a similar vein, a foreign state aircraft that participates in a search and rescue (SAR) operation on the high seas is not entitled to enter the territorial sea if the vessel in distress finds itself in it. Should rendering immediate assistance go through a lengthy process of obtaining special permission to enter and operate in the national airspace? Additionally, the contiguous zone regime provides for the prevention and punishment of certain abuses within a zone of twenty-​ four nautical miles from the baselines. How legitimate is the deployment of aircraft in such operations, especially in the prevention phase? Finally, technological advancement has brought up the construction of artificial islands and structures (AISs) in the oceans for a great variety of uses that often engage the use of flying machines (especially helicopters and drones) or affect aviation. Does the current legal regime cover all new uses and types of installations in terms of safety of navigation, overflight rights, and spatial planning?

(b)  Rights of states with special geographic characteristics Apart from typical coastal states that are entitled to maritime zones and the high seas freedoms, there are two types of states whose geographical configuration has certain implications not only for access, use, and control of the marine, but also for air space. Archipelagic states are entitled to a special maritime zone of exclusive and absolute sovereignty, namely the archipelagic waters, which apart from the sea and seabed also includes the superjacent air space. Those states also hold the right to designate sea lanes and air routes, called archipelagic sea lanes (ASLs),20 through which ships and aircraft are granted the right to pass through archipelagic waters. Thirty-​five years after the adoption of the LOSC, about half of the insular states that fulfil the archipelagic state prerequisites have adopted archipelagic baselines,21 and lesser than those who have done so have not yet designated ASLs. Pending the designation of an ASL, vessels enjoy the right of innocent passage through archipelagic 20   This concept was adopted as a measure to reinforce state sovereignty in archipelagic waters, by preventing vessels and aircraft to transverse through them in an uncontrolled fashion. 21  Tanaka estimates that only twenty-​ t wo states have formally claimed archipelagic status:  see Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press 2012) 109.



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waters, but there is no such an equivalent for aircraft. Thus, the right of overflight is nullified when states are unwilling or unable to designate ASLs.22 Under the second type fall those states that have no coastlines, namely landlocked states. The absence of territorial waters also deprives the immediate access to international airspace, which is essential to international civil aviation. Even though the LOSC grants a series of significant rights in the marine space23 and recognizes that landlocked states ‘shall enjoy freedom of transit through the territory of transit States by all means of transport’, the Convention fails explicitly to recognize the freedom of overflight through transit states.24 Even though the right of overflight was/​is considered to be much more fundamental compared to the rights of road or railway transportation participating states remain reluctant in recognizing extra rights for landlocked states. The issue is considered to have been settled through the provisions of Article 125(2), which refers to arrangements through specific bilateral, sub-​regional, and regional agreements.25 Hence, the right of access to international air space is largely dependent on the conclusion and the subtleties of those agreements, which often seem to undermine the enjoyment of this right.26

(c)  Aviation facilities in the oceans The idea of creating airports in the marine space is not a new concept;27 many of them have already become a reality (mostly in Asia 28). Apart from these, which are situated in the internal waters/​ territorial seas of coastal states, there have also been plans for the creation of others in areas outside national jurisdiction,29 22   Today, IMO is considered to be the competent organization as far as concerns designation of ASLs. According to Resolution A.572(14) of the IMO Assembly, the ICAO’s role in this procedure is only complementary (art 3(3)). 23   Such as the high seas freedoms or the enjoyment of the common heritage of mankind (art 125(1)). 24   For the relevant discussion during 3rd UNCLOS, see Mpazi Sinjela, ‘Freedom of Transit and the Right of Access for Land-​Locked States: The Evolution of Principle and Law’ (1982) 12 GAJ Int’l & Comp L 31, 48. 25   Those agreements are mainly the ones prescribed in the  Chicago Convention, art 6:  Scheduled Air Services. See Pieter de Vries Lentsch, ‘The Right of Overflight over Strait States and Archipelagic States: Developments and Prospects’ (1983) 14 Netherlands Ybk of Int’l Law 165, 170. The International Air Services Transit Agreement 1944, which is meant to provide for the first two freedoms of the air (overflight without landing and landing for non-​traffic purposes, both for scheduled international air services) has been accepted by only two-​t hirds of the world community (131 member parties), a fact that is indicative of the unwillingness of states to grant these rights to other parties, which are essential of course to landlocked states. 26   Bayeh argues that ‘Landlocked states have no absolute right of access to and from the seas and freedom of transit’ and that ‘the practical implementation of land-​locked states’ rights depends on the concerned states’ relations, agreements, and/​or the political will of transit states’ in Endalcachew Bayeh, ‘The Rights of Land-​Locked States in the International Law:  The Role of Bilateral/​Multilateral Agreements’ (2015) 4 Soc Sci 27. 27   In the 1930s the idea of ‘seadromes’ was introduced, aiming at servicing trans-​Atlantic flights. See Pablo Mendes de Leon and Erik Jaap Molenaar, ‘Still a Mile Too Far? International Law Implications of the Location of an Airport in the Sea’ (2001) 14 LJIL 233, 235. 28   See eg Kansai, Kitakyushu, Kobe, Nagasaki, and Chubu international airports in Japan, Chep Lap Kok in Hong Kong, Inchon International Airport in South Korea, and Ordu-​Giresun International Airport in Turkey. 29   Such as the New York Offshore Airport (Atlantic Ocean), the San Diego Offshore Airport (Pacific Ocean), and Schiphol-​in-​Sea (North Sea).

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while at the same time there is also a growing tendency for offshore launching and take-​offs of space objects.30 The expansion of such initiatives mostly rests on two factors: first, the special characteristics of offshore facilities that provide for unique safety and environmental qualities; and, secondly, the evolution of the AIS technology that has made their deployment more economic and long-​lasting. If the facility is located within the internal waters/​territorial seas of a coastal state, things are simpler. Those zones are considered to fall under the definition of ‘territory’, according to Article 2 of the Chicago Convention, where the state has exclusive and absolute jurisdiction over water and the superjacent air space.31 Things tend to become more complicated when offshore facilities are located outside the territories of coastal states. In the continental shelf and EEZ, coastal states hold the prime responsibility to authorize and regulate the construction, use, and operation of AISs,32 while they also have exclusive jurisdiction over them. However, this does not imply ‘territorial’ status, thus meaning that they cannot generate any maritime zone: the superjacent air remains international air space and their construction and operation should respect the residual rights of third states and should not cause harm to the environment or to natural resources. Moreover, while the right of overflight in these zones remains valid, the only protection measure applicable is a 500-​metre wide safety zone, 33 that does not seem to be sufficient either for the protection of the facility nor for civil aviation.

3.3.2 Safety/​security The safety and security of international civil aviation is today one of the ICAO’s main topics of interest. Even though security was not part of the agenda during the preparation of the Chicago Convention, several states made reference to the significance of safety and security of air travel.34 Since 1944, the organization has made outstanding efforts aiming at improving safety conditions in civil aviation, through the adoption of agreements and SARPs on issues such as airworthiness, transport of dangerous goods, telecommunications, unlawful interference etc. On the other side, owing to the fact that state aircraft operations are only limitedly regulated by ICAO rules, the organization has largely abstained from the adoption of norms that would provide for conformity between civil and state aviation. Thus, there exists a grey area of operations, that may potentially set civil aviation in danger, and this effect is more possible to arise in international air space, namely over the high seas. Our attention focuses on three topics that ought to be examined. 30   Such installations are usually deployed in areas outside national jurisdiction. See eg Joseph Carroll, ‘From the Seas to the Stars:  A Case for Developing Offshore Spaceports on States’ Submerged Lands’ (2015) 39 William & Mary Env Law and Pol Rev 765. 31   The most important constraint for a coastal state is that it has to safeguard that the presence and operation of any such facility should not hamper the right of innocent passage (LOSC art 24(1)). 32   LOSC arts 80, 60. 33   Sebastian tho Pesch comments that the restrictions based on safety zones regulations ‘cannot be used to justify interference with the freedom of overflight’. See Sebastian tho Pesch, ‘Coastal State Jurisdiction around Installations: Safety Zones in the Law of the Sea’ (2015) 30 IJMCL 512, 522. 34   See Ruwantissa Abeyratne, Aviation Security Law (Springer 2010) 210.



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(a) Areas bearing hazards to civil aviation Public international law recognizes the right of states and international organizations to restrict or prohibit aviation in certain areas either inside or outside territory, in both peacetime and wartime. However, practice is not always consistent with these regulations, and states have tried to assert jurisdiction over vast areas of international airspace,35 causing problems and obstacles to civil aviation. According to Article 9 of the Chicago Convention, states parties retain the right to restrict or prohibit flights over their territory, on terms of military necessity or public safety.36 A prohibition/​restriction area might refer to a part or the whole of a territory, its timeframe should be specific and due notice should be given. By confining the application of these areas only within territory, coastal states found it difficult to provide for the safety of aviation outside their sovereignty but within the limits of the flight information regions (FIRs) they controlled. The solution came with Annex 15 on aeronautical information services that introduced a new concept, namely ‘danger areas’. These zones are meant to signify areas where activities dangerous to flight may exist at specific times,37 usually military activities. However, the designation of such an area does not prohibit flights through it, but only provides awareness to crews of possible risks that they might encounter.38 For this reason the decision whether or not to enter a danger area solely rests on the operator,39 while the possibility of flight prohibition abuse might lead to the denial of the freedom of overflight. The third type is called ‘no-​fly zone’, and is a relatively novel conception. No-​fly zones were invented in the 1990s outside the ICAO framework, since they are only designated during peace support operations. Their aim is to prohibit all kinds of flights over the territory or even through the FIR in the context of maintenance or restoration of international peace and security,40 and ought to be introduced only through a UN Security Council Resolution.41 Finally, the most complex of all cases are the Air Defense Identification Zones (ADIZ), designated by coastal states outside their territory. While they are enforced during peacetime and wartime, ADIZ are not offspring of international law,42 creating thus a heated debate on their legality.43 At a first glance, ADIZ in international air space are not prohibition zones and are usually based on the right of a coastal state to set conditions on entry into its 35  For the phenomenon of ‘functional/​ creeping jurisdiction’ see Maria Gavouneli, Functional Jurisdiction in the Law of the Sea (Martinus Nijhoff Publishers 2007). 36   The LOSC created an analogous on the temporal suspension of innocent passage for reasons of security (Article 25(3)). 37   See Annex II: Rules of the Air, Chapter 2: Definitions. 38   The LOSC analogously asks for publicity on dangers to navigation (art 24(2)). 39   See Francis Schubert, ‘Air Navigation’ in Paul Stephen Dempsey and Ram Jakhu (eds), Routledge Handbook of Public Aviation Law (Routledge 2017) 108. 40   See Michael Schmitt, ‘Air Law and Military Operations’ in Terry Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations (Oxford University Press 2010) 358. 41   If overflights in a designated area are banned unilaterally by a belligerent party, they are called ‘exclusion zones’ and must be justifiable on the basis of military necessity. These zones ought not to be established in international air space and shall not impede international aviation. See Schmitt (n 40) 366. 42  ADIZ emerged during the 1950s in North America as a means of protection from airborne nuclear threats and later on spread to Europe and Asia. See Peter Dutton, ‘Caelum Liberum: Air Defense Identification Zones Outside Sovereign Airspace’ (2009) 103 AJIL 691, 691. 43   Papp argues that several references to ADIZ in the Chicago Convention Annexes do not amount to the acceptance/​regulation of this institution, but rather act as recognition of state practice that has to

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territory,44 but they have also been characterized as ‘more than a simple advance notification procedure’,45 thus affecting the freedom of overflight.

(b) Search and rescue Search and rescue operations in the oceans take two forms: maritime and aeronautical. In both cases, civil and state aircraft stand at the epicentre of interest. Despite technological progress and capacity building, accidents and incidents of vessels and aircraft remain a valid concern. Aeronautical Operations (ASAR) refer to incidents of aircraft (on land or sea), while maritime operations (MSAR) refer to incidents engaging vessels. In both cases, aircraft and helicopters are considered to be the most critical operational assets, in terms of speed and accuracy. These observations automatically raise the issue of coordination and coherence of such operations between the parties engaged. The Chicago Convention asks for assistance to aircraft in distress as well as the undertaking of search for missing aircraft (Article 25). The system of ASAR was later on complemented by the publication of Annex 12 (Search and Rescue) that tried to regulate relevant services in and out of the territories of the member states, within the so-​called SAR regions.46 The issue of MSAR was elaborated a few years later by the International Convention on Maritime Search and Rescue 1979 (Hamburg Convention), sponsored by IMO. While this Convention does not only apply to aircraft incidents, it is still relevant for two reasons. First, it refers to the role, rights, and obligations concerning aerial assets that are engaged in MSAR and secondly, it establishes a new type of SAR regions for maritime incidents. In its initial version, the Hamburg Convention did not determine the ways through which SAR regions should be designated, but it left this task to be regulated by agreements between neighbouring countries.47 This provision created frustration among coastal states that had already fixed their ASAR regions according to ICAO regulations and did not want to have to renegotiate the status of these operational zones.48 An attempt to ease tensions came some thirty years later, when the Convention was revised. The new text refers that neighbouring parties, in their attempt to establish agreements for MSAR regions, should ‘seek to promote consistency, where applicable,

be taken into consideration by operators. Additionally, attempts to base ADIZ on rights deriving from the contiguous or the EEZs seem to be inappropriate. See Zoltán Papp, ‘Air Defense Identification Zone (ADIZ) in the light of Public International Law’ (2015) 2 PJIEL 28, at 36 and 42, respectively. 44   However, some states including Canada and China enforce their ADIZ in all aircraft, regardless of their destination. See Papp (n 43) 31. 45  ibid 53. 46   According to Standard 2.2.1 of Annex 12, boundaries of search and rescue regions should, insofar as practicable, be coincident with the boundaries of corresponding flight information regions, and this remains the case to this day. 47   See Tryfon Korontzis, ‘The Competence of Hellas on Search and Rescue Items in the Aegean Area’ (2012) 4 RES 89, 94. 48   This was one of the main reasons that it took about six years for the Hamburg Convention to enter into force and it is also reflected through the fact that the vast majority of reservations done upon ratification were referring to this issue. See IMO Report ‘Status of multilateral Conventions and instruments in



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between their maritime and aeronautical search and rescue services’ (Article 2.1.8). This revision tried to fill in the gap that the first edition left, but is still vague, and leaves room to states to interpret and apply this rule.49 While the issue of designating and controlling SAR regions is routine for developed and/​or states with amicable relations, the same is not in place for countries that do not possess the know-​how and the assets to provide SAR services or for neighbouring countries that have delimitation or other kinds of differences, thus making things more difficult.

(c) Right of hot pursuit Maritime crimes such as drug trafficking, human trafficking, and environmental crime are common in different places around the world, and their consequences often lead to loss of income, environmental degradation, or even loss of human life. The right of hot pursuit of perpetrators, as described in Article 111 LOSC, is considered to be a rule of customary nature, which gives coastal states the opportunity to chase and arrest vessels, even outside their maritime zones. Apart from state vessels, the rule also provides for the participation of state aircraft in such operations (Article 111(5) LOSC) for the scope of either pursuing the vessel or even arresting it. Nowadays, the deployment of low altitude as well as high altitude aircraft is a common practice,50 mainly for identification and tracking of vessels,51 which is far more accurate and successful compared to maritime means.52 Even though hot pursuit is undertaken by state aircraft, which remain mostly outside the scope of the Chicago Convention, the discussion is still valid for two reasons. First, hot pursuit is a legitimate peacetime police/military activity that may take place in international air space. Even though state aircraft are not bound by the Chicago Convention (Article 3(a)), they still ought to comply with the rules of the air during their operations, for the sake of safety of aviation.53 Secondly, since hot pursuit may proceed over the high seas there is a possibility for the pursuing state aircraft to have to penetrate foreign FIRs, thus meaning that they ought to follow national regulations and procedures of a foreign air traffic services authority. Apart from these two fundamental situations, which need to be clarified in order to have coherent, safe, respect of which the International Maritime Organization or its Secretary-​General performs depositary or other functions’ (11 January 2017) 412 and 416. 49   The level of acceptance of this Convention rose dramatically after the 2000 Amendment. Almost 40% of the 108 member states ratified the text after its revision. See IMO Report ‘Status of multilateral Conventions and instruments in respect of which the International Maritime Organization or its Secretary-​General performs depositary or other functions’ (n 48) 413. 50  The newest trend entails the deployment of unmanned aerial vehicles. See Vasilios Tasikas, ‘Unmanned Aerial Vehicles and the Doctrine of Hot Pursuit: A New Era of Coast Guard Maritime Law Enforcement Operations’ (2004) 29 TMLJ 59. 51  See Craig Allen, ‘Doctrine of Hot Pursuit:  A Functional Interpretation Adaptable to Emerging Maritime Law Enforcement Technologies and Practices’ (1989) 20 ODIL 309, 309. 52   The deployment of high-​a ltitude aircraft has been criticized for not being able to provide the prerequisite of the ‘visual or auditory signal to stop’ to the suspected ship (according to art 111(4) LOSC). 53   Abeyratne mentions Resolution A10-​19 (10th Session of the ICAO Assembly) which even though it recognizes that the ‘skies as well as many other facilities and services were commonly shared between civil and military aviation, [it focuses] on the ICAO’s mandate to promote the safety of flight’: see Ruwantissa Abeyratne, Convention on International Civil Aviation. A Commentary (Springer 2014) 53.

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and fruitful operations, new topics should also be discussed, such as the use of unmanned aerial vehicles in hot pursuit operations, on a more technical level, or if there exists the right of hot pursuit over territories where the right of overflight exists,54 on a legal level.

3.3.3 Environment The future of civil aviation can be characterized only by one word: growth. The estimation for annual air travellers’ growth is 3.7 per cent, which will lead to a doubling of passengers in twenty years.55 To this end, aircraft manufacturers are building bigger aircraft and air carriers choose to up-​gauge their fleets.56 The increasing demand for bigger, faster, and more durable machines is likely to lead to more environmental problems stemming from the aviation sector. The ICAO’s interest in environmental issues emerged in the 1960s57 and blossomed during the 1970s, an era that was characterized by the influence of the United Nations Conference on the Human Environment (1972) on international environmental governance. The ICAO’s environmental agenda broadened even more in the 1990s, when the climate change issue was embraced. Despite the fact that the Chicago Convention does not make any direct reference to pollution or environmental problems, the legal basis for action is the ICAO’s mandate on the production of international standards dealing with airworthiness of aircraft and the safety, regularity, and efficiency of air navigation.58 There are three major environmental problems stemming from aircraft operation and aviation facilities. Two of them have local/​regional impacts, namely noise pollution and engine emissions, and the third one, greenhouse gas (GHG) emissions, not only has global impact but also provokes climate change, whose consequences may well severely affect aviation activities. However, it is true that all of them may, in several ways, interact and impinge on the marine environment as well.

54   We are referring to the possibility of the continuation of the pursuit (but not arrest) segment of a suspected vessel in transit passage or ASLs and the consequent arrest when the vessel exits the territorial waters. Poulantzas also discusses the possibility of an equivalent to aerial hot pursuit concept adoption: see Nicholas Poulantzas, The Right of Hot Pursuit in International Law (2nd edn, Martinus Nijhoff Publishers 2002) 308. 55   ‘IATA forecasts passenger demand to double over 20 years’ Press Release No 59, http://​w ww.iata.org/​ pressroom/​pr/​Pages/​2016-​10-​18-​02.aspx (last accessed 23 January 2017). 56   Peter Paul Fitzgerald, ‘Seeking Global Environmental Harmony in Aviation’ (McGill Centre for Research in Air and Space Law: Occasional Paper Series no III 2016) 5. 57   The issue of noise pollution was the first to be discussed and regulated (Annex 16: Aircraft Noise, 1971), but actually it was rather one of human health. The second issue to be regulated was engine emissions, which was more of an environmental problem. According to Mackenzie, in 1981 the name of Annex 16 was changed from ‘Aircraft Noise’ to ‘Environmental Protection’, reflecting the broadening of the ICAO’s interest in this subject to include newer environmental concerns and issues. Two years after that, the ICAO established the Committee on Environmental Protection, in order to carry out its policies in environmental issues related to civil aviation. See Mackenzie (n 1) 178. 58   See Julia Sommer, ‘Environmental Law-​Making by International Organisations’ (1996) 56 ZAOERV 628, 630.



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(a) Climate change The oceans are considered to be the largest CO2 reservoir of the planet, whose presence significantly changes the chemistry of the marine environment and severely harms flora, fauna, and its habitats.59 In the same vein, civil aviation is accountable for the 13 per cent of the GHGs emitted by the transportation sector,60 a number that is projected to rise significantly if no measures are taken. Furthermore, anthropogenic climate change mainly caused by GHG emissions from energy supply, industry, agriculture, and transportation hits back aviation.61 The ICAO’s interest in GHG emissions was trigged by the Kyoto Protocol, in 1997,62 but its reaction was rather poor63 as it took almost twenty years to create the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA).64 CORSIA is considered to be a back-​loaded scheme whose pilot phase will start in 2021 (on a voluntary basis). Its first phase will commence in 2024 and it will enter its final phase in 2027, aiming at covering then at least 90 per cent of international civil aviation. As can easily be understood, this is going to be a long-​lasting procedure and its results remain to be seen.65 The ICAO’s response to the adaptation challenge also came late.66 Serious work on the issue started only about five years ago, in 2013, when the first research activities on the impacts of climate adaptation on international civil aviation began, at the request of member states.67 Apart from effects on flight safety and accuracy, sea-​level rise and

59   World Ocean Review, Living with the Oceans. A Report on the State of the World’s Oceans (Maribus 2010) 28. 60   Apart from GHG emissions, aerosol emissions change the composition of the atmosphere, cause increases in cloudiness through contrail formation and spreading, and modify natural clouds, which also contribute to surface warming. See ICAO Environmental Report, ‘On Board a Sustainable Future’ (2016) 99. 61   Precipitation change, temperature change, wind changes, and extreme natural events may affect flights, while sea-​level rise may also affect aviation facilities lying in the coastal zone. 62   Article 2.2 of the Kyoto Protocol, which entered into force in 2005, asks industrialized countries to ‘pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation and marine bunker fuels working through the International Civil Aviation Organization and the International Maritime Organization’. 63   Oberthür comments that: ‘Both ICAO and IMO have, however, been far from enthusiastic about the newly acquired task. To the extent that progress has been achieved, it appears to have been driven by the danger to lose regulatory authority to the climate change regime as well as the threat of unilateral action by major players’. See Sebastian Oberthür, ‘Interactions of the Climate Change Regime with ICAO, IMO, and the EU Burden-​Sharing Agreement’ (Ecologic–​Institute for International and European Policy—​ Project Deliverable D3, 2003) 6, http://​ecologic.eu/​sites/​fi les/​download/​projekte/​850-​899/​890/​in-​depth/​ unfcc.pdf. 64  ‘Historic agreement reached to mitigate international aviation emissions’ http://​w ww.icao.int/​ Newsroom/​Pages/​Historic-​agreement-​reached-​to-​mitigate-​international-​aviation-​emissions.aspx (last accessed 22 January 2017). 65   On this point we also have to take into account the fact that aviation emissions were not included in the Paris Agreement 2015. This fact was awkwardly hailed by the Council President of the ICAO, Dr Olumuyiwa Benard Aliu, as a success. See ‘ICAO welcomes COP21 Agreement, will continue to provide leadership and coordinate action on international aviation’s environmental goals’ http://​w ww.icao.int/​ Newsroom/​Pages/​ICAO-​Welcomes-​COP21-​Agreement.aspx (last accessed 22 January 2017). 66   Mitigation of GHG and Adaptation to Climate Change were since the beginning the two main pillars of the climate change regime. During the first years, interest was mostly focused on Mitigation, but since the 13th Conference of Parties of UNFCCC in Bali (2007), member parties have been trying to strike a balance between those two. 67   See ICAO Environmental Report, ‘On Board a Sustainable Future’ (n 60) 203.

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extreme weather events may pose significant dangers in airports situated close to the coastline or on AISs. Even though climate change has been the ICAO’s spearhead of environmental policies, many things have yet to be done, while effects on the marine environment and the coastal zone ought to be studied further.

(b) Air quality Contrary to the actions taken on the mitigation of GHGs, the ICAO has shown significant work on aircraft engine emissions (AEEs) since the 1970s.68 The effects of AEEs are not spread on a global level as GHGs are, but mostly impact population and environment that are located close to airports.69 To this end, the ICAO has incorporated relevant regulations on AEE reduction in Annex 16 on environmental protection, as well as regulations on the location and operation of airports in the Airport Planning Manual (Doc 9184—​AN 902).70 Even though the effects of aircraft emissions on human health have been mapped,71 the same is not true for biodiversity, or even marine species.72

(c) Noise Noise reduction was the first ‘environmental’ issue that the ICAO dealt with back in the 1960s.73 In fact, the impetus for action was not given for the sake of the environment or even biodiversity, but it had to do more with the quality of life and health of populations living close to airports.74 Even though those activities were later merged with other environmental initiatives and today they are considered to be such, noise reduction policy’s centre of gravity is still human health. Insistency and decisiveness on this issue has brought out noise reduction as the ICAO’s most successful environmental activity, which is constantly updated in order to catch up with technological 68   In connection to the marine environment, the ICAO is one of the organizations competent to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce, and control pollution from or through the atmosphere (art 212, LOSC). 69   ‘Emissions from aircraft produce a local deterioration in air quality at ground level and for several hundred metres above ground level’: see Peter Brooker, ‘Civil Aircraft Design Priorities: Air Quality? Climate Change? Noise?’ (2006) 110 The Aeronautical Journal 517, 519. Marais and Waitz argue that, despite the fact that only about 10% of emissions occur at surface levels during ground operations, landing, and take-​off, that are known to impact surface air quality directly, there is also emerging research that suggests cruise emissions may impact surface air quality. See Karen Marais and Ian A Waitz, ‘Air Transport and the Environment’ in Peter Belobaba, Amedeo Odoni, and Cynthia Barnhart (eds), Global Airline Industry (Wiley 2009) 422. 70   Apart from aircraft emissions during take-​off, landing, and taxi, emissions deriving from ground auxiliary vehicles and aviation facilities are also being taken into account. 71   Karen Marais and Ian A Waitz (n 69) 423 and Roy Harrison, Mauro Masiol, and Sotiris Vardoulakis, ‘Civil Aviation, Air Pollution and Human Health’ (2015) 10 Env Res Lett 1. 72   Since a significant portion of these chemicals is absorbed by the oceans. 73   Today noise is considered to be an environmental problem. See eg Dotinga and Oude Elferink, who describe it as ‘acoustic atmospheric pollution’, according to the definition of pollution given in art 1(1) LOSC, thus implying that the ICAO is a competent organization under art 212 LOSC. See Harm Dotinga and Alex Oude Elferink, ‘Acoustic Pollution in the Oceans: The Search for Legal Standards’ (2000) 31 ODIL 151, 166. 74   Mackenzie (n 1) 177.



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evolution. The fundamental principles of this policy are two-​fold: (i) reduction of noise at source (meaning aircraft and helicopters); and (ii) planning and management of airports in a way that minimize the effects of noise to local communities. Much work has been done on these aspects and the results are tangible. When it comes to the marine environment, it has been proven that noise is not only relevant on ocean surface, but it also penetrates the water column, especially when it derives from aircraft flying at low altitudes.75 The most severe effects of noise pollution in the oceans are suffered by mammals, as sound plays an effective role in their lives.76 However, there are still gaps in knowledge concerning the exact effects of atmospheric noise pollution of the marine environment and especially on its fauna, a fact that prevents the adoption of relevant international regulations.77 The ICAO’s success on the topic should be further forged, with the expansion of interest into the field of diminishing the negative effects of noise to marine biodiversity caused by low altitude aircraft or in airports located in the coastal zone or even on AIS.

3.4 Outlook As our analysis has proved, there is a high degree of relevance between the ICAO’s mandate and work and global ocean governance issues. Interaction, cooperation, and conflict among civil aviation and the marine space are a long-​standing commonality. Despite the fact that the ICAO has competency over a series of marine affairs, its activity reveals that there are many things to be done in the future, not only concerning current and open issues, but also on emerging problems that ask for settlement. This section will highlight three sectors that the ICAO’s initiative is not only demanding, but also realistic.

3.4.1 Knowledge building for environmental protection and management The ICAO is the principal competent organization as regards pollution and environmental degradation from aviation activities. The same is also valid when it comes to the marine environment, according to the LOSC plea. The organization has made significant job on noise pollution and air quality, and during the last decade it has been   Harm Dotinga and Alex Oude Elferink (n 73) 166.   ‘Marine mammals use sound to locate prey, detect and avoid predators, attract mates, communicate with other members of their species, and navigate through the darkness of deep ocean waters. Without sound, marine mammals would be incapable of carrying on many daily activities that are vital for their survival’ and this sound could be distorted owing to anthropogenic noise. See Jeremy Firestone and Christina Jarvis, ‘Response and Responsibility: Regulating Noise Pollution in the Marine Environment’ (2007) 10 JIWLP 109, 119. 77   For the contextual landscape see Firestone and Jarvis (n 76) 122. Indicative of the need to implement rules against noise pollution is the fact that some states have already adopted regulations on a national level (eg the cases of Alaska State and the Malacca Strait); see Harm Dotinga and Alex Oude Elferink (n 73) 166. However, it has proven very difficult to establish acceptable noise levels for animals, even on a national level. For a discussion see Michael Stocker, ‘Ocean Bioacoustics, Human-​Generated Noise and Ocean Policy’ (2007) 10 JIWLP 255. 75 76

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quite active on mitigation of GHGs and adaptation to climate change. However, all this work has not taken into account the specificities or the needs of the marine environment. Even though the ICAO is not a marine or even an environmental institution, its leading position in international aviation may act as a bridge that will connect aviation to marine environment protection. To begin with, the ICAO’s technical know-how may be mobilized in order for the impacts of AEEs and GHGs in the oceans to be studied, while on the other hand scientific knowledge could be used by the ICAO as a basis for the assessment of the impacts of climate change effects on the aviation sector. The ICAO’s noteworthy achievements in noise reduction could also contribute in the scientific debate on the acceptable minimum noise levels in the marine environment and fauna. On a legal level, the ICAO’s input on the regulation of marine scientific research via aircraft could have a double impact,78 since providing rules for the smooth conduct of operations will also lead to an increase of volume and quality of knowledge for the marine environment.

3.4.2 Civil–​military cooperation in air and sea The safeguarding of civil–​military cooperation is today a high-​level priority among security and civil protection organizations. Military conflicts, natural and anthropogenic disasters, terrorism and relevant events pose direct and indirect threats to international civil aviation. The engagement of aircraft in these events may take the form of prevention, intervention, or even casualty. The ICAO’s non-​direct mandate on state aircraft acts as a setback for the easement of tensions or the intervention in cases of distress. However, there is a great need of cooperation and coordination between civil, military, and aviation institutions on a daily basis and even more in areas outside national jurisdiction. The ICAO’s work on peacetime emergencies and distress situations (see SAR operations) is of fundamental importance.79 On the contrary, many more issues are open when it comes to aviation over dangerous zones, such as conflict zones. The adoption of no-​fly zones, exclusion zones and ADIZ needs to be placed on a more concrete basis that will provide for the safety of civil aviation and will discourage states from asserting jurisdiction in areas outside their territories. However, this job cannot be done by one institution, but the ICAO acting as representative of international civil aviation should seek to engage in constructive dialogue with security, maritime, and civil protection organizations that have mandate on these issues.80 78   A legal gap has been identified since neither the law of the sea nor of the air makes any specific provision for marine scientific research carried out by aerial means, thus leaving the issue open for speculation. For details see Tilemachos Bourtzis and Gerasimos Rodotheatos, ‘Marine Research in Modern Law of the Sea: Law of the Sea Convention and Reality’ (2012) 11 IHR 41, 47. 79   Without this meaning that there are no more issues to be taken afterwards. As an example see the request of SAR recovery cost reimbursement posed by some states. 80   The cooperation scheme between the IMO and ICAO that led to the adoption of the COSPAS—​ SARSAT system stands out as a brilliant example of effective output on an issue with severe technical specificities. See Daniel Levesque (ed), The History and Experience of the International COSPAS-​SARSAT Programme for Search and Rescue (IAF/​IAA/​IISL Advisory Committee on History Archives 2016). However, things are expected to be much more demanding when it comes to issues of use of force.



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3.4.3 Preparedness for emerging/​upcoming technological challenges The technological factor lies within the ICAO’s DNA. The aviation sector today stands at a bifurcation, where the one way leads to the construction of mega-​aircraft and the other to the evolution of miniscule unmanned vehicles. It is not always easy for the legislation to catch up with technological evolution, and it is difficult to regulate the new uses of air space stemming from it. The ICAO’s unique legislative system81 was created in response to this fact. The next ‘big’ thing in aviation (civil and military) is the use of unmanned aerial vehicles (UAVs, often referred to as ‘drones’). Among a great variety of capabilities, drones have been or are designed to be used in a series of operations over or in connection to the oceans, such as patrolling—​surveillance, SAR, marine research, environmental protection, resources management etc. Surprisingly enough, the Chicago Convention makes reference to them (Article 8), thus opening the regulatory way to the ICAO. The organization has actively engaged in the debate for the creation of a legal framework for the operation of UAVs82 and it is heading towards this end. A closer look to the ICAO’s stance towards this issue reveals that the organization sees UAVs more as a threat to aviation,83 rather than as an integrated component of future aviation. Even though this approach sounds reasonable for the time being, caution is advisable so that the emerging legal framework would be strict but it will not act preclusively. In close cooperation with other competent institutions, the ICAO should work towards the elaboration of rules and standards for UAVs engaging in various types of operations, and especially those related to the oceans, while at the same time it should work on the issue of capacity building and transfer of technology to those member states that are in need of them.

3.5  General Comments and Conclusions Aviation and the oceans interact in various ways and at different levels. This only suffices to say that the ICAO has a role to play in global ocean governance. However, this logical assumption is complemented by certain legal provisions, included either in the Chicago Convention or in the LOSC, which provide a firm basis on which the organization’s mandate on ocean affairs stands. According to our analysis, the ICAO has done little to get to grips with ocean governance and it can be claimed that the competent organization role provided under LOSC is not fulfilled. The ICAO’s openness and adaptive capacity may serve as an excellent breeding ground for initiatives to be taken and cooperation to be established or enhanced. To this end, the organization may act either as a leader of initiatives or as follower. As a member of the UN family, the ICAO should seek to engage more actively in ocean affairs, which stand at the top of the global organization’s agenda. A first step could be the participation in the UN-​Oceans mechanism, a fact that will also help the organization to

 See SARPs.   See for example the creation of the UAS Toolkit https://​w ww4.icao.int/​uastoolkit/​Home/​About. 83   Owing to the risks posed by irrational use. 81

82

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embrace the Sustainable Development Goals more firmly.84 A second level of interaction could be introduced with the establishment of permanent institutional relations with international marine organizations such as IMO, UNESCO-IOC, IHO, IALA, and WMO etc. This kind of association will not only remove the bureaucratic intricacies of ad hoc collaborations, but it optimally may serve as a continuous link from  which deeper and more sincere cooperation may stem. Apart from following a series of important initiatives, the ICAO could engage more actively in topics that have been standing unregulated for a long period, such as the designation of ASLs, or even work earnestly to the advancement of the rights of landlocked states. On a technical level, the ICAO may largely contribute to knowledge transfer and capacity building, on issues such as environmental protection and SAR operations, to developing states,85 while on a global scale the ICAO should also assume a more energetic stance towards the protection of biodiversity (eg marine mammals, water birds etc) that is affected by aviation. In an ever-​connecting world, air and sea seem to have come closer, thus making inevitable the integration of aviation issues to global ocean governance. The ICAO’s leading role in civil aviation places the organization in the ideal position, through which this integration could flourish.

84   The ICAO is not contributing to SDG No 14 on Oceans, but it, for example, does so to No 7: Renewable Energy and No 13: Climate Change. 85   The ICAO’s Initiative ‘No Country Left Behind’ (see http://​w ww.icao.int/​about-​icao/​NCLB/​Pages/​ default.aspx) could be complemented with issues related to ocean affairs.

PA RT   I I C OM M E RC I A L A SPE C T S OF T H E M A R I N E E N V I RON M E N T

4 The UNDP and Ocean Governance Elizabeth A Kirk

4.1 Introduction The United Nations Development Programme (UNDP), at first glance, may appear to be an unusual institution to include within a treatise on ocean governance. Its vision is ‘to help countries achieve the simultaneous eradication of poverty and significant reduction of inequalities and exclusion’.1 One might assume that an organization with the word ‘development’ in its title will not be focused on issues to do with the marine environment and ocean governance. Indeed, the literature on the law of the sea shows little reference to the role of the UNDP in ocean governance. This may also be because the UNDP does not immediately appear to have played a direct role in the establishment of legal regimes relating to the oceans. The UNDP’s role is to help build developing state capacity. While its aims have been modified across time, so that at present it is focused on assisting with delivery of the millennium development goals, its key role has remained the same—​to help build developing state capacity. In this it plays a facilitative role—​looking for best practice to share, bringing potential partners together to work on projects, acting as a conduit for funding,2 and providing policy advice. What law anticipates is institution building with concrete examples of the UNDP (or any given actor) developing a treaty regime, or norms, principles or policies. The UNDP’s activities do not easily fit with this model and so are easily overlooked by law and legal academics as it does not appear to play a direct role in establishing treaty regimes. The UNDP has, however, been a key player in establishing some of the newer regimes: regimes dealing with large marine ecosystems (LMEs). When one reviews the UNDP’s work in this area, the rather limited discussion of it in the context of ocean governance begins to appear odd. The oddity of the fact that the UNDP appears to have been overlooked by the literature is exacerbated by the fact that the UNDP focuses on sustainable development, democratic governance and peace-​building, and climate and disaster resilience. All three of these areas have relevance for ocean governance, and one might assume that this would have led to the UNDP being discussed to a greater degree than it has in the existing literature. It may be, however, that the fact that the UNDP’s contribution to ocean governance does not fit with traditional approaches to ocean governance   UNDP, ‘Changing with the World: UNDP Strategic Plan 2014–​17’ (UNDP 2013).   So working towards the implementation of provisions, such as art 24 of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995 (2001) 2167 UNTS 3 (Fish Stocks Agreement). 1 2

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obscures it from view. Whereas, for example, the law of the sea starts from the premise that governance is tied to jurisdictional rights, the UNDP’s approach to ocean governance starts from the premise that governance is attached to ecosystems. Thus, the role played by the UNDP is made doubly challenging for law by the fact that the regimes it facilitates follow neither jurisdictional lines, nor disciplinary constraints. Nor indeed do they follow sector-specific approaches. Instead, the UNDP has been engaged in the establishment of interdisciplinary and transnational governance mechanisms (although not every mechanism is transnational). The route to their establishment has followed a regime-​building approach3—​starting with soft law agreements and moving through the building of consensus around particular norms and courses of action to, at times, the adoption of binding treaties. In the initial stages, these are regimes that lawyers are less likely to feel comfortable with and which some would argue do not count as ‘proper’ legal regimes. As will be demonstrated below, they are, without doubt, however, ocean governance regimes. This contribution begins with a discussion of the history of the UNDP and its basic approach to ocean governance,​exploring the way in which its history has shaped the UNDP’s relationship with ocean governance. The second substantive section discusses the UNDP’s current and former activities relating to ocean governance and the chapter finishes with the conclusions and a brief discussion of next steps.

4.2  History of UNDP and Basic Approach to Governance The United Nations General Assembly (UNGA) established the UNDP in 1965 in a process that saw the UN Expanded Programme of Technical Assistance merged with the UN Special Fund. These origins give some insight into the UNDP’s personality and objectives. It is, like all the UN programmes, financed through voluntary contributions. Its focus is on the provision of technical assistance to aid the socio​economic development of states (and regions) and oceans are but one of the areas upon which the UNDP directs its attention. The UNDP’s broader remit focuses on helping ‘countries achieve the simultaneous eradication of poverty and significant reduction of inequalities and exclusion’.4 Its work spans both marine and terrestrial ecosystems and is focused on those activities or issues that aid or impede reductions in poverty, inequality or exclusion. In other words, the UNDP is not concerned with such things as the protection of biodiversity, or the protection of the marine environment per se. It will only address these issues if they are relevant to achieving its wider objectives. One may assume that this narrow focus would be problematic in that it would prevent the UNDP from engaging with the full range of issues pertinent to ocean governance. As will be demonstrated in the next section, however, that does not appear to be the case. The focus does shape the UNDP’s activities, but it does not appear to hinder its engagement with ocean governance. The UNDP appears instead to have recognized the linkages between, for example, conservation of biodiversity and the eradication of poverty. That 3  See eg Jutta Brunnée and Stephen Toope, ‘Environmental Security and Freshwater Resources: Ecosystem Regime Building’ (1997) 91 American Journal of International Law 26. 4   UNDP Strategic Plan (n 1) 11.



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it has done so is quite remarkable when one considers the objectives that underpin the UNDP’s work: 1. Development should be inclusive of all. 2. Democratic governance systems should be strong enough to meet the demands of citizens to participate in them. 3. Gender inequality should be reduced more quickly than currently happens. 4. Institutions to ensure universal access to basic services should be strengthened within countries. 5. The risks of conflict and of natural disasters should be lowered. 6. After any conflict or disaster, sustainable development pathways should be quickly returned to. 7. Poverty, inequality, and exclusion are prioritized in policy debates at all levels. These objectives may be described as the overarching principles that the UNDP brings to any project. To some degree they meet the objectives one might anticipate for ocean governance. For example, they technically satisfy the first objective of ocean governance as defined in this project—​that is ‘the establishment of overriding principles and objectives relevant to maintain productive socio-​ecological systems’ and should also ‘ensure that societal interests are fairly represented in decision making’, but they can in no way be described as being designed to ensure the implementation of the United Nations Convention on the Law of the Sea’s (UNCLOS) objectives. That said, it is possible to see a fit between the UNDP’s objectives and some of UNCLOS’s. Thus, the aim to reduce gender inequality fits with UNCLOS’s objective of promoting ‘the equitable . . . utilization of . . . resources’.5 Similarly, the UNDP’s objective of lowering the risk of natural disasters and conflicts maps to UNCLOS objective of promoting ‘the peaceful uses of the seas and oceans’.6 The UNDP’s objectives do not, however, particularly promote environmental concerns and do not directly address ocean governance. This may mean that the UNDP is a long way from following an approach that is also utilized by other institutions. Thus, for example, the UNDP’s approach does not appear, at first sight, to be designed to  address any of the following:  develop policies and regulatory frameworks; harmonize individual, sectoral, and societal perspectives; maintain coherence across jurisdictional, space, and time scales; define the rules for allocation of power, resources, and benefits; ensure interaction with other governance systems; enforce decisions and regulations; and maintain the capacity to learn and change. As will be demonstrated in the following section, the UNDP has, however, been able to embrace environmental issues and undertake a range of actions, which do map to both the conceptions of ocean governance and UNCLOS’s objectives. That it has been able to do so is due to one of its most important characteristics. Throughout its history the UNDP has not been constrained by its official remit. Instead, the UNDP

  United Nations Convention on the Law of the Sea 1982 (UNCLOS) 1833 UNTS 397, preamble.  ibid.

5 6

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has taken a pragmatic approach—​taking action even when that action did not fit with its standard remit. For example, it provided assistance through the programme of assistance to the Palestinian People—​repairing and rebuilding roads, hospitals, and other buildings. This was done despite the fact that normally the implementation of the UNDP projects is delegated to other agencies or in country bodies. In this instance its top official, Mark Malloch Brown, recognized that there was no alternative body able to implement the required projects and so sanctioned the UNDP’s actions.7 The UNDP has also tended to be ‘ahead of the curve’ in working out which approaches and policies will work and which will not as compared to other international organizations. Thus, it realized early on that development had to be environmentally sustainable and democratic if it was to be effective.8 This willingness to embrace new approaches underpins the UNDP’s current approach to ocean governance and its focus on LMEs in particular. One may question why it is that the UNDP has been so willing to embrace new approaches where other organizations have perhaps been more restrained in their approach. In part, the UNDP’s ability to change is due to the fact that it lacks a core or fixed epistemic community.9 It functions more in the fashion of a consultancy firm—​pulling in experts or cooperating with other agencies as required—​t han as an agency with a fixed theoretical root in the way that, for example, the World Bank functions. This means then that the UNDP operates on the basis of ‘incompletely theorized agreement’ and because theorization is incomplete it is possible for the UNDP to change course relatively easily.10 Thus, in approaching ocean governance, the UNDP has not brought with it a preconceived method of working. It has instead been able to develop a method to fit the problems. In other words, the UNDP has proved to be less constrained by the transaction costs associated with switching course11 than other organizations may be, because it does not have quite such a fixed course to follow. Had the UNDP followed the same method of working as other organizations it would likely have adopted a fixed view of what is meant by development. It could, for example, have chosen to view development as leading to greater efficiency, or as creating greater freedom for individuals or as creating growth. Choosing between these meanings would have dictated the approach to development promoted by the UNDP. Rather than choosing a particular definition of development, the UNDP hastened to steer a path between development as efficiency and development as freedom. This has enabled it to tailor its approach to the particular project in question. Thus, in some contexts the UNDP has provided advice

7   Craig N Murphy, The United Nations Development Programme: A Better Way? (Cambridge University Press 2006) 11–​12. 8  ibid 16. 9   On epistemic communities see eg Peter M Haas, ‘Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control’ (1989) 43 International Organization 377. 10   Murphy (n ) 16 and 347–​48. 11   W Brian Arthur, ‘Competing Technologies, Increasing Returns, and Lock-​in by Historical Events’ (1989) 99 Economic Journal 116; W Brian Arthur, Increasing Returns and Path Dependence in the Economy (University of Michigan Press 1994); E Woerdman, ‘Path-​dependent Climate Policy:  The History and Future of Emission Trading in Europe’ (2004) 14 European Environment 261.



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to governments, in others it has worked with local stakeholders and in others it has done both. This history is key when considering the UNDP’s approach to ocean governance. While in theory the UNDP does not have a leading role to play in this area, it has in fact played such a role. Once again it has stepped outside of its remit and taken a flexible approach to the meaning of development. As will be demonstrated, the UNDP has taken on the role of coordinating action and it has focused on capacity building—​both for local actors and for states. As such, its role and activities may not have been immediately obvious to those looking at actors active in ocean governance. Although acting as a coordinator on ocean governance may appear to be a large step outwith the UNDP’s remit, it can also be understood as fitting within the UNDP’s ways of working. The UNDP has played the role of coordinator throughout its history—​coordinating actions across the UN agencies where they have been working in the same area; leading in the establishment of new agencies and ensuring that development was a priority for all UN agencies.12 Thus, it is a small step for the UNDP to take on a coordinating role in oceans governance. In this context then the UNDP works with agencies, such as the Global Environment Fund (GEF) and the International Maritime Organization (IMO). The UNDP also works closely with states (both those in receipt of assistance and those that can help in the provision of assistance) and it partners on occasion with civil society actors. As seen, for example, in the cooperation between the UNDP, United Nations Office for Project Services (UNOPS), GEF, and Conservation International in relation to the Sulu-​ Celebes Sea.13 In so doing, the UNDP meets another element of the concept of ocean governance that underpins this research—​ensuring ‘close cooperation by States, inter-​governmental institutions and other actors’. Such cooperation both magnifies the ability of each agency to contribute to ocean governance and has the potential to reduce fragmentation in the approaches taken by different institutions and states to the same issues. For fragmentation to be reduced, or to put it another way, for harmonization of approaches to happen and institutions to be able to work with each other effectively, they must be influenced to some degree by the governance objectives of those bodies they cooperate with. This requirement of effective working may explain how it is that the UNDP has come to see the linkages between its own primary objectives and the need to protect the marine environment and conserve marine biodiversity. For example, the GEF focuses on mainstreaming biodiversity through: • developing policy and regulatory frameworks that remove perverse subsidies and provide incentives for biodiversity-​friendly land and resource use that remains productive but that does not degrade biodiversity • spatial and land-​use planning to ensure that land and resource use is appropriately situated to maximize production without undermining or degrading biodiversity

12

  Murphy (n 7) 6.

13

 See http://​ssme.iwlearn.org/​about (last accessed 27 October 2016).

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• improving and changing production practices to be more biodiversity friendly, with a focus on sectors that have significant biodiversity impacts (eg agriculture, forestry, fisheries, tourism, extractive industries) • piloting an array of financial mechanisms (eg certification, payment for environmental services, access and benefit sharing agreements) to help incentivize actors to change current practices that may be degrading biodiversity.14 For the GEF and UNDP to work together effectively, the manner in which each implements its own objectives must, inevitably, be influenced by the objectives of the partner institution. In this case, the most obvious way in which the GEF’s objectives may influence the UNDP might be through elaborating on the UNDP’s fifth objective: that the risks of conflicts and natural disasters should be lowered. By protecting the environment, the risks of certain natural disasters, such as stock collapses, occurring will be lowered. Similarly, the objectives should help reduce conflicts over resources, by ensuring that they are managed effectively. Like the UNDP’s objectives, GEF’s objectives also support the implementation of UNCLOS’s objectives, from those focused on management of fisheries such as the provisions of Part V to those protecting the environment such as Articles 192 and 193. In some ways, however, the GEF’s objectives reflect the provisions of the Convention on Biological Diversity (CBD)15 more than the objectives in UNCLOS. For example, the provisions of Part V of UNCLOS on fishing in the exclusive economic zone (EEZ) are more focused on ensuring optimum utilization of the resource than on providing incentives to ensure that activities do not degrade biodiversity. By contrast, these provisions fit well with the objectives and provisions of the CBD. The four elements outlined above are encapsulated in the objectives of the CBD on the conservation of biodiversity and sustainable use of its components.16 Removing perverse incentives and incentivizing land-​use practices that are biodiversity friendly, follows the CBD’s provisions on incentive measures found in its Article 11. Situating resource use so as not to undermine biodiversity reflects the ethos if not the language of the obligation to establish protected areas under Article 8 of the CBD. This, coupled with the fact that the UNDP appears to focus more on equality of access and preservation of biodiversity than on preserving jurisdictional interests and ensuring optimum utilization of resources, points to a potential divergence between the approach to ocean governance taken by the UNDP/​GEF and approaches that may be thought to accord more closely with the provisions of UNCLOS. The apparent divergence of approach between UNCLOS on the one hand and that of the UNDP/​GEF when coupled with the history and general objectives of the UNDP may explain why it is that the role of the UNDP in ocean governance tends not to be discussed greatly. Yet as this section indicates, there is a fit between the UNDP’s work and ocean governance. That fit is explored more fully in the following section.

14   B J Huntley and K H Redford, ‘Mainstreaming Biodiversity in Practice: A STAP Advisory Document’ (Global Environment Facility 2014) 20. 15 16   Convention on Biological Diversity 1992 (1993) 1760 UNTS 79 (CBD).  CBD, art 1.



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4.3  Current and Former Activities 4.3.1  I ntroduction: from jurisdiction and sector-specific approaches to large marine ecosystems The role of the UNDP in ocean governance is best understood by contrasting it with traditional legal approaches to ocean governance. The law of the sea has largely developed along sector-​specific lines. For example, within the UN Convention on the Law of the Sea specific laws apply to fisheries,17 different ones to the control of pollution,18 and another set to navigational rights.19 This separation of functions is mirrored in the international institutions tasked with overseeing the development and implementation of governance regimes applicable to these areas. The IMO oversees navigation, regional seas bodies, such as the OSPAR Commission, address marine pollution issues while regional fisheries management organizations (RFMOs), such as the North-​west Atlantic Fisheries Organisation and the North Atlantic Salmon Commission, govern either species-specific fisheries or region-specific fisheries. This is an approach that lawyers are comfortable with as it mirrors the legal approach to socioeconomic affairs in general—​breaking life down into sectors of activity such as criminal law, contract law, property law, and so on. But as lawyers know, these areas are interdependent, the distinction of subjects artificial—​property law is dependent upon contract law to function; the law of theft is predicated on rights under property law being breached. In the same way, the artificiality of the sectoral distinctions in ocean law is accepted by lawyers and by those engaged in oceans governance activities. The acknowledgement that this artificial division is problematic in practice has led to more coordinated approaches within individual states and to some collaboration between international bodies to provide a more integrated approach to ocean governance. OSPAR provides one of the best examples of such integration—​it cooperates with the neighbouring regional sea programme, ​HELCOM,20 and has memoranda of understanding (MOUs) with a neighbouring regional fisheries body21 and with the International Seabed Authority in relation to the deep-​sea bed.22 These efforts go a long way to address fragmentation, but they are still limited, or, rather, limiting. The process of developing MOUs may be likened to forming chain-​links connecting one regime to another. In this way, these linked regimes may address pertinent ecosystem issues, but it is as likely that they will be unable to address relevant ecosystems as a whole rather than as a sum of connected issues. Thus, gaps in how the ecosystem is managed are likely to exist. A different form of disconnection between ocean governance regimes and the ocean ecosystems is caused by the jurisdictional arrangements in the law of the sea

18   UNCLOS, arts 61–​73.   ibid Pt XII, arts 192–​237.   ibid arts 17–​26, 34–​45, 52–​54, 58, 87, and 90. 20  See eg the Joint HELCOM/​ OSPAR Task Group on Ballast Water Management Convention Exemptions www.helcom.fi/​helcom-​at-​work/​groups/​maritime/​tg-​ballast (last accessed 27 October 2016). 21   See eg Memorandum of Understanding between the North-​east Atlantic Fisheries Commission and the OSPAR Commission 2008 www.ospar.org/​site/​assets/​fi les/​1357/​mou_​neafc_​ospar.pdf. 22   Memorandum of Understanding with the International Seabed Authority (the Authority) OSPAR 10/​23/​1, Annex 12. 17

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which grant states sovereignty or sovereign rights in their territorial sea,23 EEZ,24 continental shelf25 and (as appropriate) archipelagic waters.26 These zones may, but frequently do not, accord with oceans ecosystems27 and so management measures adopted by states, even if well designed for the particular ecosystem, may once again fail to be fully effective as they can only be applied in that portion of the ecosystem within the state’s jurisdiction. The results can be both problems in managing oceans resources28 and disputes between states.29 Collaborative efforts between neighbouring states or with/​within regional organizations may ameliorate such problems, but are unlikely to completely eradicate them, for the reasons alluded to above. Many of the initiatives supported by the UNDP appear, however, to champion a different approach focusing instead on the concept of LMEs or on integrated coastal zone management.30 There are around 65 such LMEs in the world. The UNDP/​GEF define31 LMEs as areas of the ocean extending to a minimum of around 200,000 km2. They are generally located in the same areas as coastal states’ territorial seas and EEZs: areas, which normally have greater productivity in terms of fisheries and other resources, than the high seas beyond. An indication of their productivity is given by the percentage of the annual global marine fisheries catch LMEs contribute. These areas contribute around 80 per cent of that catch. For example, the Guinea Current LME was, in 2009, estimated to give rise to more than US$49,941.4 million worth of goods (fisheries, minerals etc).32 While these areas provide significant revenue streams they are often also under significant threat from pollution, over fishing, and illegal and unregulated fishing.33 24 25 26  UNCLOS Pt II.  ibid Pt V.  ibid Pt VI.  ibid Pt IV.   See E A Kirk, ‘The Ecosystem Approach and the Search for An Objective and Content for the Concept of Holistic Ocean Governance’ (2015) 46 Ocean Development and International Law 33; E A Kirk, ‘The Mismatch of Jurisdictional Zone and Ecosystems’ (1999) 8 Review of International and European Community Environmental Law 67. 28   See R R Churchill, ‘The Management of Shared Fish Stocks: The Neglected “Other” Paragraph of Article 63 of the UN Convention on the Law of the Sea’ in A Strati, M Gavouneli, and N Skourtos (eds), Unresolved Issues and New Challenges to the Law of the Sea (Martinus Nijhoff 2006) 3–​19. 29   See eg Icelandic Fisheries Case (UK v Iceland) ICJ Rep (1974) 3; Fisheries Jurisdiction Case (Spain v Canada) ICJ Rep (1998) 432. See also P G G Davies, ‘The EC/​Canadian Fisheries Dispute in the Northwest Atlantic’ (1995) 44 ICLQ 927, 927–​39; D Freestone, ‘Canada and the EU Reach Agreement to Settle the Estai Dispute’ (1995) 10 TIJMCL 397, 397–​411; and C C Joyner and A Alvarez von Gustedt, ‘The 1995 Turbot War: Lessons for the Law of the Sea’ (1996) 11 TIJMCL 425, 425–​58. 30   The discussions in this chapter focus primarily on the management of large marine ecosystems, in part owing to constraints on space and in part because it has proved difficult to find sufficient materials relating to the UNDP’s role in relation to integrated coastal zone management on which to base any analysis. 31   UNDP-​GEF, ‘International Waters Delivering Results’ (UNDP 2016) 9. 32   N A Chukwuone, C N Ukwe, A Onugu, and C A Ibe, ‘Valuing the Guinea Current Large Marine Ecosystem:  Estimates of Direct Output Impact of Relevant Marine Activities’ (2009) 52 Ocean & Coastal Management 189, 189–​96. See also eg Mary Power and Anama Solofa, ‘The Pacific Islands Regional Ocean Policy and the Framework for a Pacific Oceanscape: “Many islands—​one Ocean” ’ in David VanderZwaag, Biliana Cicin-​Sain, and Miriam C Balgos (eds), Routledge Handbook of National and Regional Ocean Policies (Taylor and Francis 2015) 504 for details of the value fisheries, tourism etc around the Pacific Islands. 33   See eg Indumathie Hewawasam and Bernice McLean (with contributions from Leopoldo Maraboli and Magnus Ngoile), ‘Ocean and Coastal Policy Processes in Sub-​Saharan Africa: Issues, Opportunities, and Strategic Options’ in David VanderZwaag, Biliana Cicin-​Sain, and Miriam C Balgos (eds), Routledge Handbook of National and Regional Ocean Policies (Taylor and Francis 2015) 543. 23 27



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In conjunction with other bodies such as the GEF, the UNDP uses the concept of LMEs to promote ‘sustainable, ecosystem-​based management’.34 The approach is also ‘in line with Chapter 17 of Agenda 21’.35 As such, the boundaries of LMEs are not drawn with an eye to ocean governance per se, but upon those areas that contribute most to our socio​economic systems. The boundaries are therefore based upon ecological criteria: depth, hydrography, productivity, and trophic relationships. In this then, they differ from the ‘legal’ zones of the territorial sea and EEZ, which have their roots as much in political as geographical criteria. As a result of this focus on geographical rather than legal criteria, about 55 per cent of the identified LMEs are shared between two or more countries. For example, the Humboldt Current LME brings together Chile and Peru to manage the Peruvian anchovy (the world’s largest fishery).36 Given their productivity and the fact that jurisdiction may fall across more than one state, these are the areas of the sea in which most competition between users occurs. They are therefore the most complicated areas to manage.37 For example, while the resources of the Guinea Current LME are extremely important for the local population, some are the target of, at times unregulated, industrialized fishing, which reduces the availability of fish for the local population.38 In these circumstances, the governance arrangements become extremely important. The approach promoted by the UNDP working with GEF and other institutions is to assist the coastal states to develop governance arrangements through the transboundary diagnostic analysis/​ strategic action programme (TDA/​SAP) process. As described below, the process generally follows a regime-​building approach and it has the potential not only to ensure that UNCLOS’s objectives are met but also that a range of ocean governance objectives are met—​from harmonizing societal and sectoral perspectives to maintaining productive socio-​ecological systems.

4.3.2 Developing principles, objectives, and regulatory frameworks: following a regime-​building approach in the development of oceans governance regimes The TDA/SAP planning approach was developed through GEF and adopted by the UNDP. The process fits well with understandings of regime building39 according to 34   GEF, UNDP, UNU-​INWEH, IW Learn, ‘From Coast to Coast: Celebrating 20 Years of Transboundary Management of Our Shared Oceans’ (GEF 2015) 6. 35   Hewawasam, and others (n 33) 554. 36   ‘From Coast to Coast’ (n 34) 96. 37   Hanling Wang, ‘Ecosystem Management and Its Application to Large Marine Ecosystems: Science, Law, and Politics’ (2004) 35 ODIL 41074 at 46. 38   Chika N Ukwe, Chidi A Ibe, and Kenneth Sherman, ‘A Sixteen-​Country Mobilization for Sustainable Fisheries in the Guinea Current Large Marine Ecosystem’ (2006) 49 Ocean & Coastal Management 385, 385–​412. 39   See eg J Brunnée and S J Toope, ‘Environmental Security and Freshwater Resources:  Ecosystem Regime Building’ (1997) 91 American Journal of International Law 26, 26–​59; Jutta Brunnée and Stephen J Toope, ‘International Law and Constructivism:  Elements of An Interactional Theory of International Law’ (2000–​2001) 39 Columbia Journal of Transnational Law 19; Thomas M Franck, The Power of Legitimacy Among Nations (OUP 1990); A Hasenclever, P Mayer, and V Rittberger, Theories

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which states first develop shared understandings. These shared understandings create space in which a common practice may emerge, with that practice gradually crystallizing into binding norms over time. The TDA/​SAP process was developed to help neighbouring states to work together over transboundary issues—​issues which often result in disputes.40 It is designed as ‘a multi-​country, long-​term integrated planning approach that helps governments to prioritize issues, identify barriers and agree upon and implement regional and national governance reforms and investments aimed at addressing the root causes of aquatic ecosystem degradation’.41 The process begins with the TDA—​a scientific analysis of the state of the environment and issues with it. This analysis creates the space in which shared understandings can arise. For example, in the Caribbean Large Marine Ecosystem Project three TDAs were carried out (one for each of the LMEs that is important to the production of fisheries in the region)  ​coral reef ecosystems, pelagic ecosystem and the continental shelf ecosystem. The TDAs identified certain common threats—​pollution, overfishing, and habitat degradation—​and that the impact of these threats were exacerbated by weaknesses in the governance systems and in the way those systems are implemented.42 The SAP that followed built on these findings. Similarly, the Sulu-​Celebes Sea SAP addressed the weak governance and gaps in governance found in the TDA by including recommendations to strengthen existing institutions and to ensure that coordination across institutions was addressed43 and the SPREP reformed its structure following its TDA/​SAP process.44 The TDA process enables the states involved to pinpoint problem issues to be addressed. The SAP then is a political document45 in which the parties identify the priority areas for action. It demonstrates a general agreement as to the principles that should guide the management of the LME. Both the conduct of the TDA and the implementation of the SAP enable a practice to develop around these priorities and principles and from there it can be possible for the parties to go on to develop binding norms in the form of a treaty. For example, the Benguela Current states—​Angola, Namibia, and South Africa—​approached the UNDP for assistance in developing cooperation in the mid-​1990s. This led to a TDA being carried out (and completed by 1999). The findings of the TDA formed the basis for a SAP to be adopted in 2002. Implementation of the initial SAP led the states to the adoption of the Benguela

of International Regimes (Cambridge University Press 1997); Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887, 887–​917. 40   GEF-​U NDP, ‘Catalyzing Ocean Finance II: Methodologies and Case Studies’ (UNDP 2012) 11. 41   UNDP, ‘Support to the Implementation of Sustainable Development Goal 14’ 6. http://​un.info.np/​ Net/​NeoDocs/​View/​6140 (last accessed 27 October 2016). 42   Similar findings have been reported in other areas. See eg Sulu-​Celebes Sea Sustainable Fisheries Management Project 2014, ‘Report on the Transboundary Diagnostic Analysis of the Sulu-​Celebes (Sulawesi) Large Marine Ecosystem’. 43   Sulu Sulawesi Marine Ecoregion Tri-​National Committee 2013, ‘Strategic Action Program for the Sulu-​Celebes Sea Large Marine Ecosystem’. 44  Secretariat of the Pacific Regional Environment Programme ‘SPREP Annual Report:  2012’ (SPREP 2013). 45   GEF-​U NDP 2012 (n 40) 11.



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Current Convention, signed in 2013.46 To ensure entrenchment of the norms agreed in the Benguela Current Convention, the UNDP has been providing support for implementation of the Benguela Current Commission (BCC) SAP through the reform of law and policy at national and regional levels since 2015.47 Whether a treaty or a SAP alone is adopted, the net result is that the GEF/​UNDP process meets the ocean governance objectives of developing policies and regulatory frameworks for ocean governance and of maintaining coherence across jurisdictional, space and time scales. Where a treaty is adopted, the objectives of defining the rules for allocation of power, resources, and benefits may also be met. These, however, do not appear to be the immediate goals of the UNDP process. The focus is instead on bringing together states with either a poor record of cooperating together, or little record of cooperating in the particular area in question. In this last—​bringing states together—​the results of the UNDP’s efforts have been quite remarkable. For example, under the GEF/​UNDP Yellow Sea LME project China and the Republic of Korea worked together on LME assessment cruises. This was the first time they had conducted joint LME assessments. The assessments then led to the agreement of a SAP to address ecosystem problems identified during the assessment cruises. The SAP contained some significant measures, including agreement to reduce fishing effort by 30 per cent and to reduce nutrient discharges by 10 per cent every five years.48 Given the fact that China is a (rapidly) developing country, and given the relationship between these two states, these commitments to reduce fishing effort and nutrient discharges are highly significant. Similarly, the Partnerships in Environmental Management for the Seas of East Asia (PEMSEA) evolved from a GEF/​ UNDP/​ IMO project—​ the Prevention and Management of Marine Pollution in the East Asian Seas (MPP-​EAS) project. The UNDP/​GEF through this (and other projects such as the GEF/​UNDP Building Partnerships for the Environmental Protection and Management of the East Asian Seas and GEF/​UNDP Implementation of Sustainable Development Strategy for the Seas of East Asia (SDS SEA)) facilitated cooperation between the states. This in turn enabled the members of PEMSEA to adopt a sustainable development strategy for the region in 2003 (Sustainable Development Strategy for the Seas of East Asia (SDS-​ SEA)). In 2006 support for the implementation of the SDS-​SEA was found in the establishment of the East Asian Seas (EAS) Partnership Council by the cooperating states. The cooperation between states continued to strengthen to the extent that eight states recognized PEMSEA as an independent legal entity in 2009. Developments continued so that, in 2011, the PEMSEA Network of Local Governments for Sustainable Coastal Development (PNLG) adopted the Dongying Declaration by which the countries committed to ocean governance actions and targets; and, in 2012, country partners adopted the Changwon Declaration, which serves as the region’s response to the 46   The Benguela Current Convention between the Government of the Republic of Angola and the Government of the Republic of Namibia and the Government of the Republic of South Africa 2013 (entered into force 10 December 2015) http://​w ww.benguelacc.org/​ (last accessed 27 October 2016). 47 48   ‘From Coast to Coast’ (n 34).  ibid 7.

92 Elizabeth A Kirk Rio+20 outcomes by promoting the development of an ocean-​based blue economy through strengthened implementation of the SDS-​SEA.49

In addition, PEMSEA has facilitated the adoption of certain regional agreements such as the Framework Programme on Partnerships in Oil Spill Preparedness and Response in the Gulf of Thailand.50 These examples point to the development of regional regimes by focusing on the use of practice to develop shared understandings—​ the regime building approach. These shared understandings may also draw on existing understandings in global instruments,51 but the key element appears to be the creation of common understandings at the regional level. In keeping with the UNDP’s flexible approach to development in general, the regime building approach is not the only way in which it promotes ocean governance. A different approach was taken in the Caribbean Integrated Watershed and Coastal Area Management Programme. That programme addressed fragmentation in the approaches to ocean governance by the twenty-​one states in the region caused in part by the wildly different economic capacities of the states, but also as a consequence of different cultural contexts. It helped to ensure coherent approaches across jurisdictions and harmonize societal perspectives by ensuring interaction with the global governance systems. That interaction took the form of aid to countries to enable ratification of ‘key legal agreements such as the Protocol on Land-​Based Sources of Pollution of the Cartegena Convention’.52 In the Black Sea, a third approach appears to be taken—​ one in which cooperation on particular projects is given priority though these projects may be designed to support implementation of the existing Bucharest Convention.53 All of these approaches cause some problems for lawyers in identifying the UNDP’s efforts in ocean governance. In this context, the discussion of the development of ocean governance mechanisms in the lexicon of regime building points to the cause of the problem for lawyers. Although the LME approach promotes the creation of new and reformed institutions, the reform and implementation of marine resource management policies and legislation, and the leverage of public and private sector investment for LME restoration and protection,54

the institutional structures adopted tend not to follow the traditional institutional structures associated with oceans governance by lawyers. For example, the GEF/​ UNDP Caribbean LME centred on a ten-​year SAP agreed by twenty-​two states and focused on key issues for the region. The SAP is a non-​binding soft-​law document,  ibid 45.   See Craig Forrest, ‘State Cooperation in Combating Transboundary Marine Pollution in South East Asia’ (2016) 30 Australia and New Zealand Maritime Law Journal 78. 51   Stella Regina Bernad and Chua Thia-​Eng, ‘The Sustainable Development Strategy for the Seas of East Asia: Policy Implications at Local, National and Regional Levels’ in David VanderZwaag, Biliana Cicin-​ Sain, and Miriam C Balgos (eds), Routledge Handbook of National and Regional Ocean Policies (Taylor and Francis 2015) 527 ff. 52   ‘From Coast to Coast’ (n 34) 7. 53  See generally http://​archive.iwlearn.net/​w ww.bsepr.org/​w ww.bsepr.org/​Text/​Project/​default.html. Bucharest Convention on the Protection of the Black Sea Against Pollution 1992 (1994) 1764 UNTS 4. 54   ‘From Coast to Coast’ (n 34) 6. 49

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containing political, rather than legal commitments. A similar approach was followed in the GEF/​UNDP supported PEMSEA. PEMSEA adopted the SDS SEA. The strategy fits with the idea of establishing policies and a regulatory framework in that it provides a stage upon which policy development can take place. It also promotes the objective of maintaining productive socio-​ecological systems through provision for an investment work package managed by the World Bank. This package is not just about investment to create jobs, but aims to protect the ecosystem through tackling coastal pollution.55 Despite these fits with ocean governance objectives, the strategy remains a soft-​law instrument and, as such, may not be recognized as having legal validity by parts of the legal academy.56 Similarly, the type of work undertaken by the UNDP in the Caribbean and Black Sea do not fit with traditional legal notions of ocean governance activities. It is perhaps because of these types of approaches, and the fact that they lack formal legal structures, that the UNDP’s work has attracted so little attention from legal academics. It might appear at first sight that this ‘antipathy’ may also be mutual. The UNDP’s work does not always draw in legal insights. For example, its work on global public goods, so central a concept to ocean governance, was absent contributions from lawyers.57 In reality, however, many of the projects with which the UNDP is involved focus on precisely the type of issues that legal discourse and ocean governance are concerned with. For example, the UNDP/​GEF-supported Benguela Current Large Marine Ecosystem Programme was established with the aim of inter alia ensuring that a BCC was set up to facilitate cooperation58 because there was an identified lack of governance structures in place. Indeed, the ‘BCC constitutes the first fully institutionalized and operational inter-​governmental, multi-​sectoral LME commission in the world. It is also the first ever inter-​governmental commission based on the LME concept for ocean governance’.59 Similarly, the UNDP/​GEF-supported the Pacific Islands Oceanic Fisheries Management Project, which ran from 2005–​11 and focused on the establishment of institutions of governance.60 It supported the participating states in the negotiation and adoption of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF Convention). The WCPF Convention implements many of the provisions of the 1995 Fish Stocks Agreement and was one of the first to do so. In addition, the WCPF Commission has agreed MOUs with other RFMOs including the Inter-​American Tropical Tuna Commission, the Commission for the Conservation of Southern Bluefin Tuna, the Indian Ocean Tuna Commission and the Commission for the Conservation of Antarctic Marine Living Resources. In this way then it could be said that the UNDP/​GEF action did not just work to strengthen and develop institutions at the regional level, but also to support and strengthen global instruments and institutions relevant to ocean governance.

 ibid 7.   See also eg the Sulu Sulawesi Marine Ecoregion Tri-​National Committee 2013 (n 43). 57   Gregory Shaffer, ‘International Law and Global Public Goods in a Legal Pluralist World’ (2012) 23 EJIL 669. 58 59 60   ‘From Coast to Coast’ (n 34).  ibid 18  ibid. 55

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By supporting the adoption of legal instruments such as those described above, and in identifying weaknesses in existing governance structures, the UNDP’s work promotes ocean governance in the sense understood by lawyers. It fits with the objective of establishing overriding principles and objectives to maintain productive socio-​ecological systems and with the objective of harmonizing societal and sectoral perspectives. It also fits with the objective of maintaining coherence across jurisdictional and spatial scales and with the objective of ensuring interaction with other governance systems, but, as should be evident from the discussion above, it does not ensure that all of these objectives are met in every project. Instead, and in keeping with its flexible approach, the UNDP adopts the objectives suited to the problem in question in each particular project. In this context, one of the key tasks that the UNDP will have to address in most projects is capacity building. This is particularly so given the UNDP’s focus on working with developing states. As might be anticipated, the UNDP’s work prioritizes learning and the capacity to change both in the form of training for actors and in terms of the creation of adaptive organizations. The UNDP’s role in supporting the development of adaptive organizations again fits with the conception of regime building and, as might be anticipated, it is at its most obvious in relation to the SAP. It is intended that the SAP be reviewed and revised at regular intervals61 as happened in, for example, the Benguela Current LME, where the 2001 SAP was revised in 2009. A partial revision also took place for the period 2014–​2015 to 2018–​2019, when the causal chain analysis for the SAP was revised.62 On occasions, these reviews lead to restructuring of the SAP or of the organizations charged with implementing it. As noted earlier, the Sulu-​Celebes Sea SAP addressed the weak governance and gaps in governance found in the TDA by including recommendations to strengthen existing institutions and to ensure that coordination across institutions was addressed63 and the SPREP reformed its structure following its SAP.64 Training and capacity building is also built in to the SAP. For example, the 2015–​ 2019 SAP adopted by the BCC65 provides for oceans capacity building in a variety of areas such as ocean governance and maintenance of marine transport facilities as strategic responses to the challenges outlined in the earlier chapters of the report:66 Training and capacity building to bolster sound environmental governance has also been at the forefront of the BCC’s agenda, while complementary initiatives include an extensive science program funded by the government of Norway, and a comprehensive training and capacity building initiative supported by Iceland.67

62  ibid 22.  ibid.   Sulu Sulawesi Marine Ecoregion Tri-​National Committee 2013 (n 43). 64   ‘SPREP Annual Report: 2012’ (n 44). 65   Benguela Current Commission, ‘Strategic Action Programme 2015–​2019: A Coordinated Regional Approach to the Long-​term Conservation, Protection, Rehabilitation, Enhancement and Sustainable Use of the Benguela Current Large Marine Ecosystem to Provide Economic, Environmental and Social Benefits’ (Benguela Current Commission 2014). 66 67  ibid 23.   ‘From Coast to Coast’ (n 34) 19. 61

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In addition, the Secretariat is tasked with coordinating capacity-​building programmes run jointly with external partners.68 Similar provisions are found elsewhere, such as in the draft Western Indian Ocean SAP.69 The UNDP also supports training in a number of ways unconnected to the SAP process. For example, it worked with collaborators to organize a course on conservation of coastal ecosystems in Cuba in 200870 and in 2012 the UNDP and GEF launched a clean coast and beach competition in the Lower Volga Delta to help educating and training of locals.71 It also works on the production of guidelines on implementation of policies. For example, it cooperated in the development of the Guidelines for Development of a National Ballast Water Management Strategy72 under the GloBallast programme. A further way in which the UNDP’s work promotes regime building is through supporting fair representation in decision-​making. The UNDP’s approach to ocean governance actively engages stakeholders at various stages of the governance process. The TDA, which often forms the starting point for the project is designed to be ‘part of a process of engaging stakeholders through the initial TDA steps and the subsequent development of alternative solutions during the formulation of the SAP’.73 This means that ‘Stakeholder identification and consultation and studies of institutional capacity, governance, and investment are all essential components of the TDA process’.74 This process, bringing stakeholders and civil society more generally together with policy-​makers and experts in the process leading towards the adoption of the SAP, is designed to ensure that sound science assists ‘policy-​making within a specific geographic location for an ecosystem-​based approach to management that can be used to engage stakeholders’.75 It also has the potential benefit of enabling common understandings to emerge in line with regime building. The process generally begins with a consultation with stakeholders, followed by a review of existing data. The next step is to gather and analyse any data necessary to fill gaps in the existing data. This is done through a four-​part modular process addressing pollution and ecosystem health, productivity, fish and fisheries, and socioeconomics. A fifth module addresses governance and feeds into the SAP process and review of it.76 Experts carry out the gathering and analysis of data, but at each stage of the process relevant stakeholders are invited to review and comment on the findings or proposals.77 For example, in the lead up to the adoption of the PEMSEA SDS-​SEA,

  Benguela Current Commission 2014 (n 65) 9.   A  Strategic Action Programme for Sustainable Management of the Western Indian Ocean Large Marine Ecosystems:  Building a Partnership to Promote the Sustainable Management and Shared Governance of WIO Ecosystems for Present and Future Generations, 2013, http://​w ww.asclme.org/​ asclme-​project/​strategic-​action-​programme.html (last accessed 27 October 2016). 70   ‘Annual Report of the International Ocean Institute’ (2010) 24 Ocean Yearbook 557, 565. 71   See ‘Annual Report of the International Ocean Institute’ (2011) 25 Ocean Yearbook 569, 577. 72   J Tamelander, L Riddering, F Haag, and J Matheickal, ‘Guidelines for Development of National Ballast Water Management Strategies’ GloBallast Monographs No 18(2010, GEF-​U NDP-​IMO GloBallast, and IUCN). 73 74 75   GEF-​U NDP 2012 (n 40) 12.  ibid 12.  ibid 13. 76 77   ‘From Coast to Coast’ (n 32) 12–​13.   GEF-​U NDP 2012 (n 38) 14–​16. 68 69

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consultations were held with national and regional stakeholders over a period of more than three years.78 Although each TDA process is designed to follow the same process in terms of the five modules to be followed, the stakeholders involved will vary from one LME assessment to another to reflect the problem(s) on which the TDA/​SAP process is focused. Thus, for example, the TDA for the Benguela Current LME brought together representatives from fishing (both industrial and artisanal), tourism, oil, gas and mining as well as representatives from port authorities, governmental and non-​governmental stakeholders more generally and experts drawn both from the region and internationally. By contrast, the Humboldt Current LME engages primarily with artisanal fishermen and local communities as the TDA and SAP are focused very much on the preservation of the anchovy fisheries. At first sight it may appear, however, that the process is not designed to support the emergence of shared understandings. The shaping of the stakeholder groups to reflect the problem on which the TDA is focused, points to the TDA aiming not so much at participatory democracy79 as at ensuring that the decisions and recommendations coming from it are based on the best information possible.80 Thus, there may be no concern with the understandings stakeholders take away from the process. This conclusion is supported by the fact that, in keeping with the processes used in most international organizations,81 decisions on how to respond to the problems identified in the TDA will often be left to the local states and regional bodies, as happened, for example, during the Caribbean LME TDA/​SAP process.82 However, while this conclusion may apply generally to the TDA process, it is less applicable to the TDA/​SAP process as a whole. The fifth module of the TDA/​SAP process comprises an analysis of existing national, regional and international governance systems. It feeds directly into establishment or review of the SAP. The overarching objective of the fifth module is to establish where governance problems are arising. Part of this remit involves establishing formal allocation of power. Another part determines where the real power behind decision-​ making sits rather than the formal power. Once again, however, examples point to the   Bernad and Chua Thia-​Eng (n 49) 522.   See eg Allen Buchanan and Robert O Keohane, ‘The Legitimacy of Global Governance Institutions’ (2006) 20 Ethics and International Affairs 405; Jonas Ebbesson, ‘Public Participation’ in Daniel Bodansky, Jutta Brunnée, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2007). See also Thomas M Franck, ‘Remarks’ in Rainer Hofmann (ed), Non-​State Actors as New Subjects of International Law (Duncker & Humblot 1999) 151, 152; Report of the Panel of Eminent Persons on United Nations-​Civil Society Relations, UN Doc A/​58/​817 (11 June 2004) 37, 46. 80   See eg Marie Appelstrand, ‘Participation and Societal Values: The Challenge for Lawmakers and Policy Practitioners’ (2002) 4 Forest Policy and Economics 281; Julia Black, ‘Proceduralizing Regulation: Part I’ (2000) 20 OJLS 597; John Dryzek, The Politics of the Earth: Environmental Discourses (Oxford University Press 2005); Daniel J Fiorino, ‘Citizen Participation and Environmental Risk: A Survey of Institutional Mechanisms’ (1990) 15 Science Technology & Human Values 226; Kate Getliffe, ‘Proceduralisation and the Aarhus Convention:  Does Increased Participation in the Decision-​making Process Lead to More Effective EU Environmental Law?’ (2002) 4 ELR 101; Maria Lee and Carolyn Abbot, ‘The Usual Suspects? Public Participation under the Aarhus Convention’ (2003) 66 MLR 80; Jenny Steele, ‘Participation and Deliberation in Environmental Law: Exploring a Problem-​Solving Approach’ (2001) 21 OJLS 415. 81   See eg Elizabeth A Kirk, ‘The Role of Non-​State Actors in Treaty Regimes for the Protection of Marine Biodiversity’ in M Bowman, P Davies, and E Goodwin (eds), Research Handbook on Biodiversity and Law (Edward Elgar Publishing 2016). 82   ‘From Coast to Coast’ (n 34) 31. 78

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focus being on decision-​making power between states. For example, in the Caribbean LME project it was clear that while all states had formal power to participate in relevant organizations such as Western and Central Pacific Fisheries Commission the small island developing states would lack the capacity to do so. Those states were then given support through the UNDP’s Pacific Oceanic Fisheries Management Project (OFMP) to ensure that they could participate and could have a real voice in the Commission’s decisions.83 The story is, however, somewhat different when one assesses the move from the TDA itself to the SAP. The first stage in the process draws on the stakeholders’ objectives for the ecosystem in question and results in the establishment of ecological quality objectives.84 At the implementation stage again, stakeholders are actively involved. For example, local communities and stakeholders from the public and private sectors participate in the implementation of the Benguela Current SAP85 and are active in the Caribbean LME.86 The Guinea Current SAP also provides for the continued involvement of stakeholders,87 as does the Sulu-​Celebes Sea.88 What we can take from this then is that the TDA/​SAP process begins with a process designed to gain the best quality information on which states can make decisions. At this point it helps engender common understandings between states from which norms of action may emerge. At the implementation stage participation is widened enabling the generation of common understandings across the community of stakeholders. Thus, compliance with the aims of the SAP may be hoped to be improved and the emerging regime may be hoped to gain robustness. For example, the process leading to the PEMSEA SDS-​SEA is credited with leading to the creation of a shared vision amongst the stakeholders.89 That is not to say that the process will be easy—​there may be substantial differences in the interests of different stakeholder groups. For example, the interests of stakeholders from South Africa, with the world’s tenth largest stock exchange,90 may be very different from those from neighbouring Namibia. There is, however, at least one other way in which the TDA/​SAP process promotes harmonization of societal interests. This is through the harmonization of policies across states, which is most clearly seen in the adoption of a regional approach to management of the particular LME. It would, however, be a stretch to say that the UNDP has provided particular guidance as to how harmonization should take place. While it does provide guidance on the issues the TDA should address91 and it does provide that the SAP is to implement measures to tackle the key issues identified in the TDA, such as policy or legislative development, it does not give further guidance than that. Instead it is left to the participants of each TDA/​SAP process to decide on issues to be harmonized and the way in which such harmonization should be achieved. The UNDP’s approach has the benefit that it means processes can fit with the cultural norms of the region and can be tailored to fit with or complement (as appropriate) the approaches of existing management regimes in the region. Thus, it enables some regions to proceed on the basis of political agreements to harmonize measures (such 84 85  ibid 52.   GEF-​U NDP 2012 (n 40) 17.   ‘From Coast to Coast’ (n 34) 21. 87  ibid 28 ff.   Hewawasam and others (n 33) 555. 88   Sulu Sulawesi Marine Ecoregion Tri-​National Committee 2013 (n 43). 89   Bernad and Chua Thia-​Eng (n 51) 523. 90 91   Hewawasam and others (n 33) 543.   GEF-​U NDP (n 40). 83

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as PEMSEA), while others adopt binding agreements (such as the Benguela Current Convention). Whichever approach is taken to the adoption of agreements—​soft or hard law—​the UNDP’s efforts often lead to harmonization of a further sort. The agreements will often embody certain key environmental principles such as the polluter pays and precautionary principles. For example, both the polluter pays and the precautionary principle are found in the Guinea Current SAP.92 In so doing, the UNDPsponsored projects not only ensure a consistent (or harmonized) approach to ocean governance within and across regions, but that the regional approaches are consistent with global approaches. Thus, minimizing the possibility of fragmentation in ocean governance and increasing the possibility of harmonization. The UNDP also plays a role in global initiatives to harmonize approaches across states. Its activities range from working with other institutions to provide background papers for global events to leading the development of certain global initiatives. For example, it collaborated with the United Nations Educational, Scientific and Cultural Organization’s Intergovernmental Oceanographic Commission (UNESCO-IOC), the IMO, and the FAO in writing an inter-​agency paper to aid preparation for the UN Conference on Sustainable Development (Rio+20).93 At the other end of the spectrum of activities is the GloBallast project, which the UNDP, GEF, and IMO started in 2000 to tackle the problem of invasive species carried by ship ballast water. ‘One of the most significant outcomes has been the adoption of the IMO International Convention for the Control and Management of Ships’ Ballast Water and Sediments’94 in 2004. It provides a standardized way of dealing with ballast (and any invasive species) and entered into force on 8 September 2017. The GloBallast initiative demonstrates how effective efforts to both harmonize policies and involve stakeholders can be in achieving the desired governance results and in bringing additional benefits. Those involved in GloBallast realized that it could only be successful if industry (which could be described as the key stakeholder) was engaged. As a result, the Global Industry Alliance was established in 2009 to bring together the IMO and private shipping companies. It has also worked with the media to raise awareness of the invasive species issue, partnering with the BBC to produce the prize-​winning ‘Invaders from the Sea’95 documentary film.96 The results of these efforts are to be seen in governance reforms at global, regional, and national levels.97 They have also ‘created substantial economic benefits by promoting the creation of a sizeable ballast water treatment industry valued at over $35B and spurring the rapid development of innovative technological solutions for the management of ships ballast water’.98 This outcome not only fits a number of ocean governance objectives such as   Hewawasam and others (n 33) 544.   UNESCO-IOC and others, A Blueprint for Ocean and Coastal Sustainability (UNESCO-IOC 2011). 94   ‘From Coast to Coast’ (n 34) 157. 95  See http://​globallast.imo.org/​resources/​t he-​bbc-​imo-​invaders-​f rom-​t he-​sea/​ (last accessed 27 October 2016). 96   The film won the gold award for the Best United Nations Feature Film at the third annual United Nations Documentary Film Festival and won the Marine BizTV International Maritime Award for ‘Best Innovative Project’ in 2013. 97   See eg the discussion of reforms in the Guinea Current area as a result of the GloBallast initiative discussed in Godwin Eli Kwadzo Dzah, ‘Toward an Effective Ballast Water Legislative and Implementation Regime: Lessons for Ghana’ (2014) 28 Ocean Yearbook 526, 526–​54. 98   ‘From Coast to Coast’ (n 34) 163. 92 93



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maintaining productive socio-​ecological systems, establishing overriding regulatory frameworks and maintaining coherence across jurisdictional, space and time frames, it also fits very well with the UNDP’s overarching aim of reducing poverty. The UNDP’s activities also have a further benefit. While the UNDP’s work is not particularly focused on the resolution of disputes in the sense traditionally understood by lawyers, it does help promote UNCLOS’s objective of maintaining peaceful use of the seas.99 The most obvious indications of this are in the way it has supported cooperation between otherwise ‘hostile’ states. Examples include the successes in the Yellow Sea project referred to earlier and the discussions between the USA and Russia on the Beaufort Sea LME.100 It is also seen in the cooperation between Angola, Namibia, and South Africa on the Benguela Current, where: [t]‌he ability of the three nations to overcome historical tensions to work together for the region’s mutual and sustainable benefit provide hope that similar challenges can be overcome to protect the world’s vulnerable marine environments.101

In some cases, there is also the possibility that potential conflicts will be reduced as a common approach to issues such as boundary delimitation is agreed. It is hoped, for example, that this will be one of the outcomes of PEMSEA’s SDS-​SEA.102 As these examples show, the UNDP’s approach to ocean governance may not directly engage states in seeking solutions to disputes, but its work brings together government actors to cooperate on particular activities in a manner akin to track II diplomacy.103

4.4 Conclusions The UNDP’s role in global ocean governance is somewhat complex. On the one hand, its work appears to cut across some key ocean governance objectives. Whereas, for example, UNCLOS provides for the allocation of jurisdiction amongst states, the UNDP focuses on transboundary cooperation and its work tends to transcend jurisdictional issues. Similarly, whereas UNCLOS prioritizes optimum utilization of fisheries, the UNDP’s work is more closely focused on sustainability, in particular sustainable socio-​ecological relationships. Depending on one’s perspective, this may or may not be taken to support implementation of optimum utilization or conservation of marine mammals—​another of UNCLOS’s objectives. It is also difficult to see what the UNDP’s work has to say on the freedoms of the high seas. If it has anything to say, it would appear to be in the context of the restriction on fishing found in the obligation to cooperate in the conservation and management of marine living resources on the high seas.104

  Article 301; see also arts 88 and 141.   See Protection of the Arctic Marine Environment Working Group, Arctic Council, ‘PAME Progress Report on the Ecosystem Approach to Arctic Marine Assessment and Management 2006–​2008’ at 3. 101 102   ‘From Coast to Coast’ (n 34) 21.  ibid 45. 103   On track II diplomacy see eg Esra Çuhadar and Bruce W Dayton, ‘Oslo and Its Aftermath: Lessons Learned from Track Two Diplomacy’ (2012) 28 Negotiation Journal 155, 155–​79. 104   UNCLOS, art 118 . 99

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At first sight, the UNDP also appears to fall short of other, accepted ocean governance objectives. Indeed, there are some objectives it clearly does not meet, but these are rather few in number. The UNDP does not enforce decisions/​regulations, nor does it create mechanisms for enforcement. The discussion of the fit between the UNDP activities and other ocean objectives, however, has to be more nuanced. For example, while the UNDP does not directly define the rules for allocation of power, resources, and benefits, its work is designed to support these objectives. The UNDP may be viewed as overseeing the allocation of power to particular decision-​making mechanisms, rather than to particular actors. Thus, it moves decision-​making into the TDA/​SAP process, for example, and away from the purview of states acting on an individual basis. The same type of comments can be made in relation to the allocation of resources. While the UNDP is not directly involved in their allocation, its work supporting LME projects creates space for allocation activities to take place. Its work in this regard is illustrated by, for example, the reduction of fishing effort agreed through the Yellow Sea LME SAP. The UNDP is also active in the creation of policies and regulatory frameworks and the establishment of overriding principles and objectives, yet, as noted above, its work does not often appear in legal literature on ocean governance. This may be because its focus is largely on supporting the development of soft-​law agreements in the form of the SAP. These may serve as the precursor to the development of binding treaties such as the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, or the establishment of more formal institutions such as the BCC. There is, however, a certain distance between the creation of such formal laws and institutions and the UNDP’s activities and this distance at times obscures sight of the UNDP’s role. The same can be said of the UNDP’s activities at the global level. While it is a key partner in GloBallast, for example, the actual development of an international treaty fell under the IMO’s remit rather than the UNDP’s. Those seeking signs of an agency generating overriding principles and objectives to support productive socio-​ecological systems may therefore be disappointed in the UNDP. Such a focus would, however, miss the important supporting role that the UNDP plays in the generation of national, regional, and global laws and policies. This is a role that can and does lead to the harmonization of policies across states. For example, by encouraging states to follow the TDA/​SAP process in setting up LME arrangements, the UNDP ensures that an environment in which consensus around particular norms can emerge exists. In so doing, it facilitates the production of regional policies and legal instruments and helps to ensure that ecosystems are consistently managed across jurisdictional scales. In playing this supporting role, the UNDP can be said to be active in the creation of ocean governance policies and law, as well as in ensuring coherence across jurisdictional, space, and time scales. There are other areas in which the fit between the UNDP’s activities and global ocean governance objectives is clearer. The TDA/​SAP process is, for example, designed to support the fair representation of societal interests. The UNDP also supports participation by developing states in relevant treaties. By engaging a range of stakeholders in the production and implementation of the TDA/​SAP and supporting



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states to engage with wider regional and global initiatives, the UNDP helps engender increasing understanding of alternative perspectives. This increased understanding helps to promote harmonization of societal interests. The UNDP’s activities promoting harmonization within sectors are most clearly seen in the GloBallast project. They are also evident in the LME SAPs, where a consistent approach may be encouraged towards, for example, particular fisheries as happens in the Humboldt Current LME in relation to Peruvian anchovy. Where a range of sectors is engaged, the UNDP’s actions go further and also support cross-​sectoral harmonization. There are also some areas where the fit between the UNDP’s activities and ocean governance is strong. The TDA/​SAP processes rest on the monitoring and assessment of problems. These form the cornerstone of its activities and the foundation on which it can promote harmonization of perspectives and the development of policies and laws. Similarly, the TDA/​SAP process is designed to facilitate capacity building—​a n objective that matches strongly to the UNDP’s focus on helping ‘countries achieve the simultaneous eradication of poverty and significant reduction of inequalities and exclusion’.105 The TDA/​SAP process also strongly supports capacity building and the creation of systems that maintain the capacity to learn and change. Often there are also links between the TDA/​SAP process and wider governance regimes, with the LME TDA/​SAP process supporting the implementation of global obligations and the UNDP supporting the participation of states in those wider regimes. The question that remains then is where next for the UNDP in relation to ocean governance. As with other bodies in the UN family, the UNDP follows the 2030 Agenda for Sustainable Development, which came into force in January 2016, replacing the millennium development goals, and of which Sustainable Develop­ ment Goal No  14 is particularly relevant here. The UN Development Group (UNDG) developed MAPS (mainstreaming, acceleration, and policy support) to guide the UNDG agencies and partners in implementing the 2030 Agenda. The UNDG MAPS guide106 provides guidance on a number of activities such as raising public awareness, creating vertical and horizontal policy coherence, monitoring, reporting and accountability, risk assessment, and adaptability, all of which are of relevance in the context of ocean governance. There is a strong fit with the way in which the UNDP already operates in relation to ocean governance,107 with new activities such as the UNDP/​I MO/​GEF GloMEEP programme108 tackling additional issues such as lowering the shipping industry’s carbon footprint. Thus, one might anticipate more of the same, or perhaps an expansion of the UNDP’s activities in relation to ocean governance.

105   UNDP, ‘Changing with the World UNDP Strategic Plan: 2014–​17’ (UNDP 2013) 11, www.undp. org/​c ontent/​u ndp/​en/​home/​l ibrarypage/​c orporate/​C hanging_​w ith_​t he_​World_​U NDP_​Strategic_​ Plan_​2014_​17.html (last accessed 27 October 2016). 106   UNDG, ‘ Mainstreaming the 2030 Agenda for Sustainable Development Reference Guide to UN Country Teams’ (UNDG 2015). 107  UNDP, ‘UNDP Support to the Implementation of Sustainable Development Goal 14:  Ocean Governance’ (UNDP 2016) 6. 108   http://​glomeep.imo.org/​> (last accessed 27 October 2016).

5 The International Labour Organization and Ocean Governance George P Politakis*

5.1 Introduction The International Labour Organization (ILO), founded in 1919, is the oldest UN agency with a current membership of 187 states. Its constitutional mandate originates in the plea of the drafters of the 1919 Paris Peace Treaty that ‘universal and lasting peace can only be established only if it is based upon social justice’. Today, the ILO’s decent work agenda is articulated around four strategic objectives:  promote fundamental principles and rights at work; create employment and income opportunities; enhance social protection and social security; and strengthen social dialogue and tripartism. The concept of decent work gives expression to the aspirations of working people for opportunity, income, rights, recognition, person development, fairness, and gender equality.1 The ILO’s specificity lies with the unique tripartite structure of the ILO and the constant search for consensual solutions between government and employers’ and workers’ representatives. Tripartism is a foundational principle and fundamental value of the ILO as it ensures that governments and social partners have an equal voice in developing labour standards, policies, and programmes.2 The adoption of international labour standards remains at the heart of the work of the ILO. International labour standards take the form of international labour conventions, which create legal obligations once ratified, and non-​binding international labour recommendations which provide guidance as to policy, legislation, and practice.3 *   The views expressed herein are those of the author and do not necessarily reflect the views of the International Labour Office. 1  See ILO, Decent Work, Report of the Director-​General, International Labour Conference, 87th Session, Geneva, 1999, 13–​4 4 and Reducing the Decent Work Deficit: A Global Challenge, Report of the Director-​General, International Labour Conference, 89th Session, Geneva, 2001, 17–​47. 2   See G Rodgers, E Lee, L Swepston, and J Van Daele, The International Labour Organization and the Quest for Social Justice 1919–​2009 (ILO 2009) 1–​18. 3   To date, the corpus of international labour standards comprises 189 conventions, which have received a total of 8,108 ratifications, and 205 recommendations. International labour instruments are adopted by the annual International Labour Conference involving a double discussion procedure, ie the examination of draft instruments at two consecutive sessions of the Conference. The obligation arising out of the adoption of an international labour instrument is to submit the text within one year from its adoption to the competent national authorities for the enactment of legislation or other action. The obligation arising out of ratification of an international labour Convention is to report regularly to the ILO supervisory bodies which assess legislative conformity and monitor effective implementation of ratified conventions also taking into account any relevant comments communicated by employers’ and workers’



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5.2  Setting out for Ithaca: The International Protection of Maritime Labour Since its early days, the ILO has demonstrated a keen interest for the regulation of maritime labour matters within the remit of its constitutional mandate and core values.4 At its second session, held in Genoa in 1920, the International Labour Conference adopted three conventions and three recommendations.5 Following the adoption of this first set of international maritime labour instruments and over the ensuing eighty-​five years, the ILO has convened special maritime sessions of the International Labour Conference at regular intervals to consider and adopt maritime labour standards.6 This resulted in an impressive body of standards, known as the International Seafarer’s Code, covering all aspects of seafarers’ working and living conditions, including articles of agreement, medical certification, hours of work, annual leave, repatriation, crew accommodation and food and catering. The most prominent among these conventions was probably the Merchant Shipping (Minimum Standards) Convention 1976 (No 147), which enabled port state authorities to control foreign ships flying the flag of non-​ratifying countries as regards their conformity with the standards of the Convention and to take measures to rectify any conditions on board which were clearly hazardous to safety and health.7

organizations. International labour standards are devised as universal in character as their drafters expect that all countries without exception be able to accept them and effectively apply them regardless of their stage of economic or social development. In order to be universally applicable, standards have to be flexible and may therefore contain flexibility clauses to take account of variations in national circumstances, conditions, and practices. International labour standards are minimum standards meaning that member states are free to adopt laws ensuring more favourable conditions to the workers concerned. 4   Ithaca, written in 1911 by the Greek poet Constantine Cavafy, is inspired by the Homeric return journey of Odysseus to his home island and uses the journey to Ithaca as a metaphor for all the processes involved in reaching a goal: As you set out for Ithaca, hope the voyage is a long one, full of adventure, full of discovery . . . Keep Ithaca always in your mind. Arriving there is what you are destined for. But do not hurry the journey at all. Better if it lasts for years . . . Ithaca gave you the marvellous journey. Without her you would not have set out. She has nothing left to give you now. And if you find her poor, Ithaca won’t have fooled you. Wise as you will have become, so full of experience, you will have understood by then what these Ithacas mean. See http://​w ww.cavafy.com/​poems/​content.asp?id=74. 5   Conventions Nos 7, 8, and 9 addressed respectively the minimum age for employment on vessels, the obligation to pay to seamen indemnity against unemployment resulting from the loss or foundering of the vessel and the prohibition of fee-​charging placement services for seamen, Recommendations Nos 7, 9, and 10 called respectively for the adoption of the 8 hour day and the 48 hour week as the standard in the fishing industry, the consolidation by each member of all laws and regulations relating to seamen in a single seamen’s code, and the establishment of an unemployment insurance for seamen. 6   Since 1920, eleven special maritime sessions of the International Labour Conference adopted a total of thirty-​nine conventions and thirty recommendations. 7   Although the subject of considerable controversy at the time of the Conference discussions, art 4 of the Convention affirmed the port state’s jurisdiction over foreign-​flagged ships visiting its ports and contributed to the development of the port state control regime worldwide. Convention No 147 was, in fact, at the origin of the Hague Memorandum, which was signed in 1978 by the maritime authorities of eight European countries with a view to the establishment of a harmonized system of port state control for the purpose of eradicating the operation of substandard ships, and which was later upgraded to a more comprehensive control arrangement through the adoption by 14 states of the 1982 Paris Memorandum of Understanding on Port State Control; see Richard W J Schiferli, ‘Regional Concepts of Port State

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However, these standards remained in general unevenly ratified, fragmented, and difficult to update. No homogeneous ratification pattern, co-​existence of revising and revised instruments on the same subject matter, and substantive differences in the scope of application were some of the concerns associated with the traditional method of standard-​setting in the maritime field. Many commentators saw in this accumulation of over-​prescriptive standards a ‘normative patchwork’ particularly difficult to streamline. As an Office report noted, ‘treaty congestion makes it difficult for member States to engage in separate ratification processes for so many instruments that may no longer represent a manageable set of standards for a truly global industry’.8 Another factor which pointed to the need for far-​reaching reform has been the rapid transformation of the shipping industry over the past twenty-​five years and its impact on seafarers’ working and living conditions. Profound structural changes in the shipboard environment, such as the rise of ship-​management companies, the proliferation of ‘second’ or ‘international’ registers, and the increasing automation of shipboard equipment influenced considerably seafarers’ employment resulting notably in problems of fatigue, isolation, and interpersonal tensions owing to reduced manning, multinational crews, and limited access to shore, as well as physical stress due to increased dimensions of vessels.9 The standard-​setting activities of the ILO in the field of maritime transport and fishing find their ratio legis principally in Article 94 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which requires every flag state (i) effectively to exercise its jurisdiction and control in administrative, technical, and social matters over ships flying its flag, (ii) to take measures to ensure safety at sea with regard to the manning of those ships, labour conditions, and the training of crews, taking into account the applicable international instruments, and (iii) to investigate, and if appropriate, take necessary action upon receiving a report from another state that proper jurisdiction and control has not been exercised with respect to any of these ships.10 The Control: A Regional Effort with Global Effects’ (1994) 11 Ocean YB 202. See also George Kasoulides, Port State Control and Jurisdiction—​Evolution of the Port State Regime (Springer 1993) 142–​82; ILO, ‘Labour Standards on Merchant Ships—​General Survey by the Committee of Experts on the Application of Conventions and Recommendations’ (Pat 4B) Report III (1990) 137–​47. 8   See ILO, Review of Relevant ILO Maritime Instruments, Report for discussion at the 29th Session of the Joint Maritime Commission, 2001, JMC/​29/​2001/​1, 24. As at 2001, the most widely ratified maritime labour convention was the Medical Examination of Young Persons (Sea) Convention 1921 (No 16), which had received 82 ratifications; 17 conventions had received less than 20 ratifications, 8 conventions had received between 20 and 40 ratifications, 6 conventions between 40 and 60 ratifications, and only 2 conventions had been ratified by more than 60 states. 9   ILO, ‘The Impact on Seafarers’ Living and Working Conditions of Changes in the Structure of the Shipping Industry’ Report for discussion at the 29th Session of the Joint Maritime Commission, 2001, JMC/​29/​2001/​3,11–​20. See also ILO, ‘Changes in the Shipboard Environment and in the Characteristics of Seafarers’ Employment’ 26th Session of the Joint Maritime Commission (1991) JMC/​26/​1,18–​31; ILO, The Global Seafarer—​Living and Working Conditions in a Globalized Industry (ILO 2004) 95–​144; T Alderton and N Winchester, ‘Globalisation and De-​regulation in the Maritime Industry’ (2002) 26 Marine Policy 35; L Carballo Piñeiro, International Maritime Labour Law (Springer 2015) 11–​41; Desislava Nikolaeva Dimitrova, Seafarers’ Rights in the Globalized Maritime Industry (Kluwer Law International 2010) 27–​36; Jane Jing Haider, ‘Towards a New Era in Ship Registration’ (2013) 24 International Journal of Logistics Management 87. 10   This provision basically echoes art 5 of the 1958 Convention on the High Seas, which provided that there must exist a genuine link between the state and the ships having its nationality, and in particular,



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references to ‘social matters’ arising from ship management, ‘labour conditions’ of crews, and ‘applicable international instruments’ may be understood as giving direct mandate to the ILO to address the responsibilities and rights of states with respect to maritime labour and international shipping. As the ILO Governing Body concluded in assessing the implications of the entry into force of the UNCLOS, ‘the ILO can legitimately be regarded as the competent international organization’ under the provisions of article 94 as far as labour conditions are concerned’.11 At a time when over 80 per cent of world trade by volume is carried by sea, the need for robust and effective global standards on the working and living conditions of the maritime workforce becomes critically important.12 Decent working conditions for seafarers and fishers are essential to protecting the marine environment and ensuring the economic viability of shipping and fishing operations. Decent working conditions are a prerequisite for attracting and retaining qualified crews, which can in turn positively impact on efficiency and productivity. On the contrary, substandard, hazardous, or abusive working conditions are synonymous with deficient hygiene, medical care or food quality, lack of training, excessive fatigue, pay abuse, or exposure to physical and psychological harm, all of which can be original causes of major failures and fatal accidents.

5.3  The Maritime Labour Convention 2006: A New Social Charter for Global Seafaring 5.3.1 The winds of change: ILO’s Joint Maritime Commission and the Geneva Accord The idea of undertaking a major consolidation exercise of the international maritime labour standards came in January 2001 with the ‘Geneva Accord’, in reality a resolution adopted within the framework of the Joint Maritime Commission (a bipartite organ responsible among others for fixing the international minimum wage for seafarers) reflecting the common understanding of the ship-​owners’ and seafarers’ groups with respect to existing maritime labour standards.13 The two groups pointed out that as the world’s first genuinely global industry, shipping required an international regulatory response of an appropriate kind—​global standards applicable to the entire industry. They both believed that the relevance of those standards had to be improved to better respond to the needs of all stakeholders of the maritime sector and therefore suggested that the existing ILO maritime instruments should be consolidated and brought up to date by means of a new single that the state must effectively exercise its jurisdiction and control in administrative, technical, and social matters over those ships. 11   See GB.265/​LILS/​2, para 8, at 3. 12   As at 1 January 2016, the world commercial fleet consisted of 90,917 vessels manned by approximately 1,545,000 seafarers of virtually every nationality; see UNCTAD, Review of Maritime Transport 2016, 30, 44. 13   At the origin of the Geneva Accord was a proposal for ‘one major flagship instrument to become the one-​stop point of reference or the “bill of rights” for labour and social matters for the industry’; see ILO, Review of Relevant ILO Maritime Instruments (n 8) 27.

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‘framework Convention’ on maritime labour standards that should be so structured as to allow for accelerated amendment of technical requirements, if needed. It was further considered that the very large number of the existing maritime conventions, many of which were outdated, not reflective of modern practice, or too detailed, made it difficult for governments to ratify and to enforce all relevant standards.14 The challenge was therefore to depart from the traditional approach followed for the development of maritime labour standards and adopt a new global framework agreement, which (i) should incorporate as far as possible the substance of all relevant maritime labour standards; (ii) should be easily updateable to keep pace with developments in the maritime sector; (iii) should place emphasis on enforcement with a view to establishing a ‘level playing field’; and (iv) should be drafted in such a way as to secure the widest possible acceptability.

5.3.2 A new blueprint for maritime standard-​setting The Maritime Labour Convention 2006 (MLC 2006), the ILO’s flagship convention for the maritime sector, was finally adopted in 2006 after five years of intense negotiations15 and entered into force seven years later, in 2013—​twelve months after having been ratified by thirty states representing more than 33 per cent of the world tonnage of ships. Since then, it has received another 49 ratifications, totalling today 79 states parties representing 91 per cent of the world tonnage of ships. Among the ratifications registered in the last twelve months are those of China and India but also the ratifications of Portugal, Romania, and New Zealand. All ten countries with the largest ship registers and fifteen of the top twenty shipowning nations are today bound by the MLC.16 The MLC 2006 is widely seen as the ‘fourth pillar’ of the international regulatory regime for quality shipping, together with the three key IMO conventions—International Convention on the Safety of Life at Sea  (SOLAS), International Convention for the Prevention of Pollution from Ships (MARPOL), and International Convention on the Standards of Training, Certification and Watchkeeping for Seafarers (STCW)—​all deriving their legal basis from Article 94 of the UNCLOS. The MLC 2006 is intended to be globally applicable, easily understandable, readily updatable, and uniformly enforced. Its importance lies primarily with the fact that it focuses on the human element of the maritime industry, addressing the specificities and complex issues of labour protection of a transnational workforce of 1.5 million people.17   See Final Report, Joint Maritime Commission, 29th Session (2001) JMC/​29/​2001/​14, paras 34–​42.   For a detailed account of the negotiating history of the MLC 2006 see M L McConnell, D Devlin, and C Doumbia-​Henry, The Maritime Labour Convention, 2006—​A Legal Primer to an Emerging International Regime (Martinus Nijhoff Publishers 2013) 37–​62. All the preparatory reports (2002–​2006) may be accessed at http://​w ww.ilo.org/​global/​standards/​maritime-​labour-​convention/​WCMS_​153447/​ lang-​-​en/​index.htm. 16   Up-​to-​date information on the ratification status may be found at http://​w ww.ilo.org/​global/​standards/​maritime-​labour-​convention/​lang-​-​en/​index.htm. 17   Among the numerous legal articles and studies on the Convention see Alexandre Charbonneau and Patrick Chaumette, ‘The ILO Maritime Labour Convention: An Example of Innovative Normative Consolidation in a Globalized Sector’ (2010) 1(3) European Labour Law Journal 332; Paul J Bauer, ‘The Maritime Labour Convention:  An Adequate Guarantee of Seafarer Rights, or an Impediment to True Reforms?’ (2008) 8 Chicago Journal of International Law 643; Nathan Lillie, ‘The ILO Maritime Labour Convention, 2006: A New Paradigm for Global Labour Rights Implementation’ in Konstantinos 14

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The MLC 2006 revises a total of sixty-​eight maritime labour instruments, including thirty-​six maritime labour conventions and one protocol. The first such instrument was the Minimum Age (Sea) Convention 1920 (No 7) and the last was the Seafarers’ Hours of Work and the Manning of Ships Convention 1996 (No 180).18 The MLC 2006 is a landmark text on several grounds. Its structure, which incorporates mandatory provisions and non-​binding guidelines in a vertically integrated format, is a novelty that has not been experimented in an international labour convention before. The concept of ‘substantial equivalence’, although not new, is defined for the first time. The no more favourable treatment clause, which seeks to apply a level of protection comparable to MLC standards to ships flying the flag of non-​ratifying countries, is a major leverage in the effort to attain universal ratification. The certification of ships with respect to seafarers’ working and living conditions integrates labour standards into the global port state control regime. The specific responsibilities of labour-​supplying countries complement those of flag and port states. The mechanism for an accelerated amendment process addresses one of the weaknesses of traditional ILO conventions, which is the slow and burdensome revision procedure. Binding requirements for on-​board and onshore complaint-​handling procedures are for the first time spelled out in international maritime instruments. These key innovatory features of the Convention are outlined below.

5.3.3 The Convention’s format: repackaging hard and soft law The layout of the MLC 2006 is an adaptation of the structure of the main IMO conventions and comprises three different parts: articles, regulations, and the Code. The Articles set out core rights and provide the legal authority for all other provisions. The Regulations lay down basic obligations relating to the areas of seafarers’ working and living conditions covered by the Convention. The Code contains details of implementation, organized into two parts: Part A contains binding standards and Part B non-​binding guidelines. The provisions of the Regulations and the Code are arranged in five thematic groups, or titles, covering minimum requirements for seafarers to work on a ship; conditions of employment; accommodation, recreational facilities, food and catering; health protection, medical care, welfare and social security protection; and compliance and enforcement. From a legal perspective, it is interesting to note guidelines, or Part B of the Code, lie half-​way between recommendatory guidance and mandatory requirements insofar as ratifying countries must, in accordance with Article VI(2) of the Convention, give due consideration to implementing their

Papadakis (ed), Cross-​ Border Dialogue and Agreement:  An Emerging Global Industrial Relations Framework? (International Institute for Labour Studies 2008) 191–​215; Patrick Bolle, ‘The ILO’s new Convention on maritime labour: An innovative instrument (2006) 145 International Labour Review 135; Peter Payoyo, ‘The Contribution of the 2006 ILO Maritime Labour Convention to Global Governance’ in A Chircop, T L McDorman, and S J Rolston (eds), The Future of Ocean Regime-​Building: Essays in Tribute to Douglas M Johnston (Martinus Nijhoff Publishers 2009) 385–​408. 18   Only three conventions are not consolidated in the MLC 2006: the Seafarers’ Pensions Convention 1946 (No 71), the Seafarers’ Identity Documents Convention 1958 (No 108), and the Seafarers’ Identity Documents Convention (Revised) 2003 (No 185).

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responsibilities in the manner provided for in those guidelines. Provided that they have given this due consideration, ratifying countries may implement the mandatory provisions in a different way, more suited to their national circumstances. In this case, however, the government concerned could be asked to explain to the ILO supervisory bodies why it has decided not to follow the guidance in Part B of the Code. The new structure was devised principally for the purpose of achieving firmness on rights (Articles and Regulations) and flexibility on implementation (Code).

5.3.4 The Convention’s scope: closing the coverage gaps One of the principal objectives and main achievements of the drafters of the Convention was to ensure the broadest possible coverage. This was prompted by the fact that the scope of earlier ILO maritime instruments was most of the times limited in terms of tonnage, type of vessel, nature of voyage, or categories of persons covered.19 The MLC 2006 defines the term ‘ship’ to include any ship, whether publicly or privately owned, that is ordinarily engaged in commercial activities apart from those navigating exclusively in inland waters or waters within or closely adjacent to sheltered waters or areas where port regulations apply (Article II(1)(i)). Accordingly, the MLC 2006 applies to all ships flying the flag of a ratifying member irrespective of tonnage, mode of propulsion (mechanically propelled, sailboats etc) or nature of voyage (domestic or international). The Convention specifically excludes fishing vessels, warships, and ships of traditional build. It also recognizes that there may be cases of doubt with respect to particular categories of ships, which would call for a good faith determination after due consultations with the social partners. Equally comprehensive is the definition of the term ‘shipowner’, which no longer focuses on ownership alone but rather on the effective exercise of responsibility for the operation of a ship (Article II(1)(j)). At a time when most ships are operated by management agencies acting on behalf of the shipowner, this definition is particularly important as it makes it possible to identify in all circumstances the person or organization responsible for seafarers’ living and working conditions under the Convention. Most importantly, the Convention defines the term ‘seafarer’ as any person who is employed or engaged or works in any capacity on board a ship covered by the Convention (Article II(1)(f)). The MLC 2006 therefore covers not just the crew involved in navigating or operating the ship but also all other persons carrying out non-​ maritime duties, such as hotel personnel, including cabin and cleaning personnel, bar staff, waiters, entertainers, singers, casino personnel, and hairdressers. Cases of doubt are to be determined by the competent authority after consultations with the shipowners’ and seafarers’ organizations concerned and upon considering relevant factors, such as the duration of the stay on board of the person concerned, the frequency of periods of work spent on board, the location of the person’s principal place of work, and the purpose of the person’s work on board. 19   For instance, Convention No 23 excluded from its scope vessels engaged in coasting trade and pleasure yachts, Convention No 92 applied to vessels primarily propelled by sail, while Convention No 178 did not apply to vessels of less than 500 gross tons.



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5.3.5 Steering the course: any room for manoeuvre? The new instrument includes many clauses aimed at ensuring flexibility in the implementation of technical standards. Most notably, the concept of substantial equivalence is for the first time defined in Article VI(3). Under this concept, a member may implement the rights and principles of the Convention in a manner different from that set out in Part A of the Code if it satisfies itself that the relevant legislation or other implementing measure is conducive to the full achievement of the general object and purpose of the provisions of Part A of the Code concerned and gives effect to those provisions.20 The MLC 2006 contains also an exemption possibility under certain conditions for vessels of less than 200 gross tons not engaged in international voyages while the provisions on crew accommodation allow for multiple variations based on the type and tonnage of ships concerned, principally passenger ships, special purpose ships, and ships of less than 3,000 gross tons.

5.3.6 The Convention’s revision process: anticipating future needs Another key innovation of the MLC 2006 is the possibility to revise the Code through an accelerated or simplified amendment procedure (Article XV). This is largely inspired from similar techniques applicable to IMO conventions that permit the adaptation of legal prescriptions to rapidly evolving technical standards. Under this arrangement, amendments to the Code may be tacitly accepted and come into effect two and a half years after having been approved by the International Labour Conference unless 40 per cent of the ratifying members formally express their disagreement. At the heart of the tacit amendment procedure is the Special Tripartite Committee (STC), an expert tripartite body responsible for keeping the working of the Convention under continuous review (Article XIII).21 The STC, which was established in October 2013, is empowered to consider proposals for amendments to the Code—​that is the standards and guidelines containing the more detailed technical provisions. The STC convened its first meeting in April 2014 to examine two joint proposals for amendments

20   The member’s obligation is principally to ‘satisfy itself’, which nevertheless does not imply total autonomy, since it is incumbent on the authorities responsible for monitoring implementation at the national and international levels to determine not only whether the necessary procedure of ‘satisfying themselves’ has been carried out but also whether it has been carried out in good faith in such a way as to ensure that the objective of implementing the principles and tights set out in the Regulations is adequately achieved in some way other than that indicated in Part A of the Code. The notion of substantial equivalence was also included in art 2(a) of Convention No 147 to reflect the idea that deviations from the terms of the Convention could be admitted, as long as the general level of protection remained the same. In further clarifying the meaning of that notion, the ILO Committee of Experts had considered that ‘the test for substantial equivalence may be, first; whether the State has demonstrated its respect for or acceptance of the main general goal of the Convention and enacted laws or regulations which conduce to its realisation; and if so, secondly, whether the effect of such laws or regulations is to ensure that in al material respects the subordinate goals of the Convention are achieved’; see ILO, ‘Labour Standards on Merchant Ships’ (n 7) 44. 21   Detailed provisions on the composition and rules of procedure of the Special Tripartite Committee are set out in the Standing Orders which were adopted by the ILO Governing Body in March 2012. The text of the Standing Orders is found at http://​w ww.ilo.org/​global/​standards/​maritime-​labour-​ convention/​lang-​-​en/​index.htm.

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of the seafarers’ and shipowners’ groups, one to address the specific problems faced in cases of abandonment of seafarers and another to refine and further strengthen the requirement for shipowners to provide financial security to ensure compensation in the event of death or long-​term disability of a seafarer owing to occupational injury, illness, or hazard.22 These amendments were approved by the International Labour Conference in June 2014 and took effect on 18 January 2017. Following the same procedure, the STC had its second meeting in February 2016 to examine among others three new proposals for amendments, two submitted by the seafarers’ group and a third by that of the shipowners. Concretely, the seafarers proposed new provisions to ensure, first, the payment of wages to seafarers in the event they are held captives by pirates and, secondly, adequate protection of seafarers against harassment and bullying on board ships.23 The proposal on measures to eliminate harassment and bullying as well as the more technical proposal of the shipowners’ group relating to a five-​month extension of the maritime labour certificate in cases where a new certificate cannot be immediately issued after a renewal inspection, were adopted without any difficulties. However, the question of wage protection in case of piracy and armed robbery gave rise to a multitude of broader legal queries and was eventually referred to a working group which was tasked to prepare proposals including a possible amendment to the Code of the MLC for the next, third meeting of the Committee.24 In the event, the second set of MLC amendments adopted at the STC meeting in February 2016 were approved by the International Labour Conference in June 2016 and will, in principle, take effect thirty months after their notification to the ratifying members, that is, by the end of 2018.25

5.3.7 Compliance and enforcement: putting teeth into labour standards In its effort to promote quality ship management and marginalize substandard ships and operators, the MLC 2006 provides for robust enforcement measures to ensure effective compliance not only on paper but also in practice. The Convention’s ‘teeth’ have taken the form of two major innovations:  (i) a certification system for ships above 500 gross tons and engaged in international voyages—​indeed, the world’s

22   See ILO, Background Paper for discussion at the first meeting of the Special Tripartite Committee established under Article XIII of the Maritime Labour Convention, 2006 (Geneva, 7–​11 April 2014), STCMLC/​ 2014. See also Denis Nifontov, ‘Seafarer Abandonment Insurance:  A System of Financial Security for Seafarers’ in Jennifer Lavelle (ed), The Maritime Labour Convention 2006: International Law Redefined (Informa Law from Routledge 2014) 117–​36. 23   See ILO, Background Paper for Discussion at the second meeting of the Special Tripartite Committee established under Article XIII of the Maritime Labour Convention, 2006 (Geneva, 8–​10 February 2016), STCMLC/​2016. 24   See Hilton Staniland, ‘Protecting the Wages of Seafarers Held Hostage by Pirates:  The Need to Reform the Law’ (2013) 3 International Journal of Public Law and Policy 345; Graham Caldwell, ‘Seafarers and Modern Piracy’ in Jennifer Lavelle (ed), The Maritime Labour Convention 2006: International Law Redefined (Informa Law from Routledge 2014) 137–​50. 25   In 2016 the STC was also assigned the responsibility of reviewing all ILO maritime instruments adopted prior to 2000 with a view to assessing their continued relevance and formulating recommendations to the ILO Governing Body as to the possible abrogation or withdrawal of those manifestly outdated.



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first international treaty to provide for certification for labour and social conditions (Article V(3)); and (ii) a no more favourable treatment clause for ships flying the flag of non-​ratifying countries (Article V(7)).26 Vessels flying the flag of ratifying countries will carry maritime labour certificates offering prima facie evidence of compliance and hence should not, in principle, experience delays in foreign ports. In contrast, vessels flying the flag of non-​ratifying countries cannot be issued certificates of compliance and may thus be subject to lengthier inspections (and possibly detention) when visiting foreign ports. By minimizing therefore the possibility for maritime nations to draw any comparative advantage by not ratifying the Convention, the MLC 2006 aspires to create a level-​playing field for the world’s shipping industry and to promote decent working and living conditions for all seafarers.27 In a major development, on 1 September 2016 the twenty-​seven states parties to the Paris Memorandum of Understanding (MoU) launched the first concentrated inspection campaign on the MLC 2006, considering that three years after its entry into force the time was right to focus on the Convention. The Paris MoU secretariat has issued a checklist placing emphasis on twelve selected points and expects to carry out more than 4,500 inspections during the three-​month campaign. According to Paris MoU inspection results for 2015–​2016, among the top ten deficiencies recorded in terms of ship documentation, four related to documents prescribed by the MLC 2006, namely the record of seafarers’ daily hours of work and rest, the shipboard working arrangements, the procedure for complaint-​handling, and the maximum hours of work and minimum hours of rest, while the highest number of deficiencies as regards crew documentation concerned the seafarers’ employment agreement. In the same period, the most frequent deficiencies with respect to conditions of employment related to hours of work and the calculation and payment of wages, while the top deficiencies in accommodation spaces were observed in sanitary facilities, cold room, and the galley. Inspections carried out under the Paris MoU after the entry into force of the Convention in August 2013 resulted in thirty-​five detentions, while in 2014, the first full year of enforcement of the Convention, there have been 259 MLC-​ related detentions.28 It should be recalled, in this respect, that in the period 1998–​ 2009, the deficiencies detected in conditions of work by reference to ILO conventions accounted for 10 to 15 per cent of the total number of deficiencies detected by port

26   Under this clause—​a lso a distinctive feature of IMO conventions—​the Convention requires that ratifying members implement their responsibilities in such a way as to ensure that the ships flying the flag of states not parties to the Convention do not receive more favourable treatment than the ships flying the flag of states parties to it. In practice, this means that, even though port state control remains a discretionary power, it should be exercised in a manner that guarantees that seafarers on board ships of non-​ratifying states enjoy a level of protection of their labour rights that is comparable with that of the MLC 2006. 27   On the Convention’s enforcement provisions see F Piniella, J M Silos, and F Bernal, ‘Who Will Give Effect to the ILO’s Maritime Labour Convention, 2006?’ (2013) 152(1) International Labour Review 59; Alexandros Ntovas, ‘The Enforcement Procedures of the Maritime Labour Convention 2006’ in Jennifer Lavelle (ed), The Maritime Labour Convention 2006:  International Law Redefined (Informa Law from Routledge 2014) 151–​80. 28   Carl Anton Meitmann, ‘Enforcing the Maritime Labour Convention, 2006: A study of the early results of implementation and enforcement of the Maritime Labour Convention 2006’ (Unpublished thesis 2016) 15, 17 http://​lnu.diva-​portal.org/​smash/​record.jsf?pid=diva2%3A906810&dswid=5545.

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state control inspectors under the Paris MoU but not a single vessel was detained on such grounds.29

5.3.8 Not falling on deaf ears: new seafarers’ complaint options The Convention introduces a novel approach to ensuring compliance through complaint procedures; not only flag and port states have an obligation to receive and respond to complaints but every ship must have its own on board complaint procedure, which becomes one of the inspectable items for ship certification purposes. Moreover, seafarers must be provided with a copy of the procedure that applies to the ship, including the contact details of the competent authority of the flag state. In view of blacklisting practices and the vulnerability of seafarers with short employment contracts, the Convention prohibits victimization and seeks to safeguard the ability of seafarers to complain directly to the ship’s master or to an external authority. Moreover, the Convention requires port states to transmit regularly to the ILO statistical information relating to complaints, whether resolved or unresolved, which should in turn be brought to the attention of shipowners’ and seafarers’ organizations. It is believed that the complementary complaint processes, articulated for the first time in a conventional text, can make a real difference to the manner in which seafarers raise service-​related concerns and seek redress.

5.3.9 The longest ILO instrument ever: navigating through  the MLC 2006 Regulations and the Code The provisions of the 105 page Convention are thematically arranged in five chapters that follow more or less the different stages of the seafarer’s professional life, from pre-​ employment medical examination to old-​age benefit. Title 1 of the MLC 2006 deals with the minimum requirements for maritime employment, including minimum age, medical certificate, and training. The Convention establishes a minimum age of 16 years and prohibits night work for those seafarers under 18 except for training purposes. The Convention requires seafarers to undergo medical examinations every two years (annually for those under 18 years of age) and to hold valid medical certificates issued by duly qualified medical practitioners.30 Medical certificates should be made available in English for those seafarers working on ships ordinarily engaged in international voyages. This part of the Convention also contains detailed provisions on seafarer recruitment and placement services, where such services exist, whether public, private, or union-​operated. The Convention calls for a standardized system of licensing or 29   See Piniella, Silos, and Bernal, ‘Who Will Give Effect to the ILO’s Maritime Labour Convention 2006?’ (n 27) 75. 30   The Convention advises all persons concerned with the conduct of medical examinations for seafarers to follow the ILO/​WHO Guidelines for Conducting Pre-​Sea and Periodic Medical Fitness Examinations for Seafarers, as revised by the Joint ILO/​IMO Meeting on Medical Fitness Examinations of Seafarers and Ship’s Medicine Chests held in September 2011 http://​w ww.ics-​shipping.org/​docs/​default-​source/​ILO-​ MLC-​docs/​i lo-​imo-​g uidelines-​on-​t he-​medical-​examinations-​of-​seafarers.pdf?sfvrsn=4.



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certification for the operation of private seafarer recruitment and placement services which would prohibit ‘blacklisting’ or charging seafarers fees for access to employment, ensure the maintenance of registers of all seafarers recruited or placed, and require the establishment of a system of protection to compensate seafarers for any monetary loss incurred as a result of the failure of the recruitment and placement services to meet their obligations to them. Most importantly, the Convention introduces a flag state responsibility in the area of recruitment and placement, even in the case the country where the seafarer is recruited has not ratified the MLC 2006, by requiring that shipowners that use services based in states not parties to the Convention must ensure, as far as practicable, that those services meet the standards set out in the Convention.31 Title 2 addresses a number of employment conditions of seafarers, including contracts of employment, wages, hours of work and hours of rest, annual paid leave, and entitlement to repatriation. The MLC 2006 requires all seafarers, even those hired by land-​based employers, to have a seafarers’ employment agreement (SEA)32 signed by the shipowner and containing at a minimum details with respect to, among others, the agreed remuneration, the amount of paid annual leave, termination conditions, health and social security benefits, or the seafarer’s entitlement to repatriation. As regards wages, the Convention provides for regular monthly payments and requires that seafarers be given a detailed account at the time of each payment and also the possibility to transmit their earnings to their families. Concerning the regulation of hours of work, the Convention reproduces the limits on maximum hours of work (14 hours in any 24-​hour period and 72 hours in any seven-​day period) and minimum hours of rest (10 hours in any 24-​hour period and 77 hours in any seven-​day period) prescribed by the Seafarers’ Hours of Work and the Manning of Ships Convention 1996 (No 180).33 The Convention requires records to be kept of seafarers’ daily hours of work or their daily hours of rest and that a copy of such records, endorsed by the master, should be given to the seafarers concerned. The MLC 2006 provides for a minimum of 2.5 calendar days of leave per month of employment (excluding justified absences) and prohibits any agreement to forgo the minimum annual paid leave. As for the seafarers’ right to repatriation on completion of their contract, the Convention stipulates that seafarers are to be repatriated at no cost to themselves and that shipowners are generally responsible for covering repatriation expenses. It also prescribes that if the shipowner fails to pay, the flag state would

31   Even though the MLC 2006 does not explicitly require certification of recruitment and placement services, many classification societies have already put in place procedures for voluntary certification of crew manning offices to demonstrate compliance with the standards of the MLC 2006; see eg http://​ www.classnk.or.jp/​hp/​en/​authentication/​m lc/​. 32   The term seafarers’ employment agreement is meant to include both a contract of employment and articles of agreement, thus covering various legal systems and practices. 33   This being an area also covered by the STCW, the drafters of the MLC 2006 were cautious not to create standards that might conflict with the IMO regime and also unwilling to reopen discussions on the difficult compromise reached in 1996. The MLC 2006 permits exceptions to the limits on maximum hours of work or minimum hours of rest through collective agreement, or as may be required by the master, for the immediate safety of the ship, persons on board or cargo, or for the purpose of giving assistance to other ships in distress.

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have to arrange for the repatriation and, if not, then the state from which the seafarer is to be repatriated or the state of the seafarer’s nationality could decide to cover the repatriation expenses. Title 3 lays down standards for decent accommodation spaces, appropriate on-​ board recreational facilities, and quality of catering. The MLC 2006 requires particular attention to be paid to certain aspects such as the size of rooms, heating and ventilation, noise and vibration, sanitary facilities, lighting, and hospital accommodation. It is noted that technical standards relating to ship construction and equipment, for instance minimum headroom, cabin floor area, or berth size, apply only to ‘new’ ships, that is, ships constructed on or after the date on which the Convention enters into force for the country concerned.34 To mention but a few of the detailed accommodation requirements, the Convention calls for: sleeping rooms situated above the load line amidships or aft; an individual sleeping room and a separate berth for each seafarer; a wash basin with cold/​hot water in each sleeping room; a minimum floor area in single berth seafarers’ sleeping rooms of between 4.5 and 7 square metres depending on tonnage; minimum headroom of 203 cm; minimum inside dimensions of a berth of 198 cm by 80 cm; one toilet, wash basin, and shower for every six persons or less; separate sanitary facilities for men and women; mess rooms located close to the galley and apart from the sleeping rooms; separate hospital accommodation in ships carrying more than fifteen seafarers and normally engaged on voyages lasting more than three days.35 The Convention requires that seafarers are provided with food of appropriate quality, nutritional value and quantity, free of charge, prepared under hygienic conditions and having regard to their religious requirements and cultural specificities. The Convention further requires that ships’ cooks, who may not be under the age of 18, be trained and qualified without however setting out any specific qualification standards.36 It also provides that frequent documented inspections must be carried out, by or under the authority of the master, of crew accommodation and all spaces and equipment used for the storage and handling of food and drinking water. Title 4 comprises standards dealing with the seafarer’s medical care on board and ashore, the shipowner’s liability to support financially the seafarer in case of sickness, injury or death, the protection of seafarers’ occupational health and safety on board, seafarers’ social security protection, and shore-​based welfare facilities. The MLC 2006 reaffirms the seafarers’ right to receive medical care, including essential dental care,

34  For ships constructed before that date, the crew accommodation requirements set out in the Accommodation of Crews Convention (Revised) 1949 (No 92)  and the Accommodation of Crews (Supplementary Provisions) Convention 1970 (No 133) would apply, if one or both of those conventions were ratified by the flag state. 35   The Convention permits variations or exemptions from certain standards in relation to passenger ships, special purpose ships, and ships of less than 3,000 gross tons. In some cases, standards are generally worded, which might raise questions of interpretation and the need for technical specifications and benchmarks; note, for instance, the use of expressions such as ‘adequately ventilated’, ‘appropriate heating system’, ‘proper lighting’, ‘sufficient drainage’, ‘adequate size’, or ‘reasonable comfort’. 36   An ILO tripartite Meeting of Experts adopted in September 2013 Guidelines on the Training of Ships’ Cooks, available at http://​w ww.ilo.org/​global/​standards/​maritime-​labour-​convention/​monitoring-​ implementation-​tools/​lang-​-​en/​index.htm.



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in principle at no cost to themselves while on board or in a foreign port, and also their right to visit a medical doctor or dentist without delay in ports of call. In addition, the Convention recognizes the shipowner’s liability to bear the financial consequences of seafarers’ sickness, injury, or death (ie costs of medical care and full wages or burial expenses, as the case may be) occurring while they are serving under a seafarers’ employment agreement, even though such liability may be limited under national laws or regulations to a period of not less than sixteen weeks, and even excluded, for instance in the case of injury or sickness which is attributable to the wilful misconduct of the sick, injured, or deceased seafarer. Concerning maritime occupational safety and health, the Convention sets out the basic obligation to ensure that seafarers are provided with occupational health protection and live, work, and train on board ship in a safe and hygienic environment. It also calls for the development of national guidelines and the adoption of laws and regulations addressing a series of occupational safety and health matters, such as the effects of noise and vibration in the workplace, loading equipment, handling of anchors, chains and lines, dangerous cargo, fire prevention and fire-​fighting, work in enclosed spaces, or the effects of fatigue.37 Moreover, the Convention requires free access to shore-​based welfare facilities, where they exist, for all seafarers irrespective of nationality, race, colour, sex, or religion and seeks to promote the development of welfare facilities as well as the establishment of welfare boards to review those facilities regularly, ensuring that they are appropriate in the light of changes in the needs of seafarers and technical developments in the shipping industry. Finally, with respect to social security, the MLC 2006 recognizes that social security coverage of seafarers varies considerably from one country to another and therefore calls for action progressively to achieve comprehensive social security protection for seafarers. The Convention requires that, at the time of ratification, countries should provide social security protection to all seafarers ordinarily resident in their territory with respect to at least three of the nine classical branches of social security, preferably medical care, sickness benefit. and employment injury benefit. Title 5 contains the rules that operationalize the two major innovations of the MLC 2006, that is the certification system for ships above 500 gross tons engaged in international voyages and the principle of no more favourable treatment for ships flying the flag of states not parties to the Convention. Flag states must ensure that ships above 500 tons engaged in international voyages carry on board a maritime labour certificate (MLC), which is issued for a period not exceeding five years and which certifies that the ship has been inspected in relation to fourteen different areas38 dealt with in 37   An ILO tripartite Meeting of Experts adopted in October 2014 Guidelines for Implementing the Occupational Safety and Health Provisions of the Maritime Labour Convention 2006 http://​w ww.ilo.org/​ global/​standards/​maritime-​labour-​convention/​monitoring-​implementation-​tools/​lang-​-​en/​index.htm. 38   The matters that must be inspected for certification purposes are:  minimum age; medical certification; qualification of seafarers; seafarers’ employment agreements; use of any licensed private recruitment and placement service; hours of work or rest; manning levels; accommodation; on-​board recreational facilities; food and catering; health and safety and accident prevention; on-​board medical care; on-​board complaint procedures; and payment of wages. Following the entry into force of the 2014 amendments, two new items will be added: financial security for repatriation and financial security relating to shipowners’ liability.

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the Convention and verified to be in compliance with the relevant requirements of the Convention. A declaration of maritime labour compliance (DMLC) must be attached to the MLC and must identify the national legal provisions giving effect to the requirements of the Convention in respect of the fourteen inspected areas (Part I), as well as the specific measures taken by the shipowner at the shipboard level to ensure ongoing compliance with the national requirements (Part II). Maritime labour certificates are meant to facilitate flag state and port state control inspections.39 The Convention recognizes that classification societies may be authorized by flag states to carry out on their behalf the inspection and certification functions required under Title 5. The Convention further envisages a comprehensive inspection regime based on a sufficient number of qualified inspectors ensuring that all ships flying the flag of a ratifying member (and not only those subject to certification) are inspected at regular intervals not exceeding three years. Inspectors making use of professional judgment and showing impartiality and confidentiality in the exercise of their duties may board a ship, carry out any examination, test or inquiry, require any deficiency to be remedied, and even prohibit a ship from leaving port, although all reasonable effort should be made to avoid a ship being unreasonably detained or delayed.40

5.4  Promoting Decent Work for Fishers and Revisiting Seamen’s Books Parallel to the major consolidation exercise of the maritime labour instruments which eventually led to the adoption of the MLC 2006, the ILO pursued standard-​setting work in two other closely related areas: revising and updating the international labour standards applicable to commercial fishing and upgrading the security features of biometric seafarers’ identity documents (SIDs) so as to respond to the security challenges and concerns of port states while facilitating seafarers’ access to shore.

5.4.1 The Work in Fishing Convention: throwing the net wide Shortly after the adoption of the MLC 2006, the ILO adopted the Work in Fishing Convention 2007 (No 188) with the aim of consolidating and updating international labour standards concerning the working and living conditions of fishers.41 Following the traditional approach to standard-​setting, the ILO adopted also a non-​binding Work in Fishing Recommendation (No 199). Although shorter and less elaborate that 39   For instance, any exemptions, substantial equivalences, or other variations that may have been granted by the flag state in accordance with the Convention must appear in Part I of the DMLC, otherwise they will be ignored by port state control officers. 40   An ILO tripartite Meeting of Experts adopted in September 2008 Guidelines for Flag State Inspections and Guidelines for Port State Control Officers to assist flag and port state administrations effectively to implement their respective responsibilities under the Convention and promote harmonized inspection policies. See http://​w ww.ilo.org/​global/​standards/​maritime-​labour-​convention/​lang-​-​en/​index.htm. 41   To enter into force, Convention No 188 requires ten ratifications, including eight from coastal states. Convention No 188 received its tenth ratification on 16 November 2016 and entered into force on 16 November 2017. Convention No 188 revises four earlier Conventions concerning minimum age, medical examination, articles of agreement of fishermen, and accommodation of fishermen.



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the MLC 2006, Convention No 188 shares a number of the innovative characteristics of the ‘mother’ instrument, such as the requirement for vessel certification, enforcement through port state inspection, the use of substantial equivalence, and a simplified amendment procedure. The Convention applies to all commercial fishing with the exception of subsistence fishing42 and recreational fishing, to all fishing vessels regardless of size, and to all fishers including those who are paid on the basis of a share of the catch. Designed as a framework instrument addressing all aspects of the working and living conditions of fishers, Convention No 188 and Recommendation No 199 cover for the first time issues such as health and safety, payment of wages, hours of rest, medical care, repatriation, recruitment and placement, and social security.43 The Convention contains numerous flexibility provisions to facilitate acceptance and adaptation of standards to a highly heterogeneous fishing industry. For instance, the Convention permits, subject to specific conditions, ‘progressive implementation’ with regard to certain requirements, including compulsory medical certification, crew list, or fisher’s written work agreement. The Convention offers also the possibility of implementing the provisions on rest time and crew accommodation through the adoption of ‘substantial equivalent’ measures. It further permits the use of length overall (LOA) or gross tonnage (GT) equivalences for the measurement of fishing vessels to take account of national differences in fishing vessel design. Moreover, ‘alternative requirements’ may be adopted under certain conditions with respect to various crew accommodation standards, such as headroom, floor space per person, or berth size. In respect of enforcement, the Convention reaffirms the basic principle of the primary responsibility of the flag state for ensuring compliance with its provisions through an integrated system comprising thorough vessel inspection, effective complaint-​ handling procedures, and imposition of appropriate fines or penalties. Most importantly, Convention No 188 introduces a certification system—​analogous but less detailed than that of the MLC 2006—​for fishing vessels remaining at sea for more than three days which are of 24 metres in length and over or normally navigate at a distance exceeding 200 nautical miles from the coastline of the flag state.44 Furthermore, the Convention incorporates the no more favourable treatment principle seeking to protect the fishing vessels of states parties to the Convention from unfair competition from fishing vessels flying the flag of states that have not ratified the Convention.45 42   Subsistence fishing is understood to cover fishing operations where the catch is destined for the direct consumption by the fisher and his/​her family and not for sale. 43   For more detailed analysis of the provisions of the Convention see ILO, Handbook for Improving Living and Working Conditions on Board Fishing Vessels (2010) http://​w ww.ilo.org/​wcmsp5/​groups/​ public/​-​-​-​ed_​dialogue/​-​-​-​sector/​documents/​publication/​wcms_​162323.pdf. See also George P Politakis, ‘From Tankers to Trawlers: The International Labour Organization’s New Work in Fishing Convention’ (2008) 39(2) Ocean Development & International Law 119. 44   An ILO tripartite Meeting of Experts adopted in September 2015 Guidelines on Flag State Inspection of Working and Living Conditions on Board Fishing Vessels http://​w ww.ilo.org/​sector/​Resources/​codes-​ of-​practice-​a nd-​g uidelines/​WCMS_​428592/​lang-​-​en/​index.htm. 45   An ILO tripartite Meeting of Experts adopted in February 2010 Guidelines for Port State Control Officers Carrying Out Inspections under the Work in Fishing Convention 2007 (No 188) http://​w ww.ilo. org/​wcmsp5/​g roups/​public/​@ed_ ​d ialogue/​@sector/​documents/​normativeinstrument/​wcms_​177245. pdf.

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Convention No 188 and accompanying Recommendation No 199 are expected to help address the serious decent work and human rights deficit in the increasingly globalized fishing sector as present-​day illegal, unreported, and unregulated (IUU) fishing activities often involve slavery conditions and human trafficking.46

5.4.2 New biometric standards for seafarers’ identity documents It is recalled that in response to the calls for enhanced maritime security in the aftermath of the terrorist attacks of September 2001, the ILO adopted the Seafarers’ Identity Documents Convention (Revised) 2003 (No 185) which attempted to introduce for the first time biometric protection to seafarers’ identification cards, better known as seamen’s books, which had been in use since the adoption of the Seafarers’ Identity Documents Convention 1958 (No 108).47 Convention No 108 specified certain particulars which should appear in seafarers’ national identity cards (full name, date and place of birth, nationality, photograph, signature) and also required those documents to be designed in a simple manner and be made of a durable material but left it to the issuing authorities to decide the precise form and content. The Convention did not prescribe uniform technical specifications and did not place any special emphasis on protecting the security of identity documents. In contrast, Convention No 185, while recognizing the principles embodied in the 1958 Convention concerning the facilitation of entry by seafarers into the territory of members for the purposes of shore leave, transit, transfer, or repatriation, sought to create a uniform and reliable system of issuing and verifying SIDs through the use of biometric features (seafarer’s fingerprint embodied in a barcode), exchange of information among national databases, and national focal points and a system of international oversight to ensure compliance. However, despite the pressing needs for enhanced border control and the growing difficulties that seafarers experienced in being able to enjoy shore leave in certain countries, the level of acceptance of the new instrument remained surprisingly low. The main problem appeared to be the cost of

46   See ILO, Caught at Sea: Forced Labour and Trafficking in Fisheries (2013) 7–​22, http://​w ww.ilo.org/​ wcmsp5/​groups/​public/​-​-​-​ed_​norm/​-​-​-​declaration/​documents/​publication/​wcms_​214472.pdf. In this respect, the ILO has developed the Global Action Programme against forced labour and trafficking of fishers at sea (GAPfish) to help source states, flag states, port/​coastal states and market states through specific activities, such as targeted awareness-​raising campaigns for migrant fishers; assistance, recovery, and rehabilitation programmes for the victims; skill training for law enforcement officers and labour inspectors; and international workshops to increase the co​operation between states:  http://​w ww.ilo. org/​wcmsp5/​groups/​public/​-​-​-​ed_​norm/​-​-​-​declaration/​documents/​publication/​wcms_​429359.pdf. The ILO is also engaged in country-​specific programmes for combating unacceptable forms of work in the fishing and seafood processing industry: http://​w ww.ilo.org/​asia/​info/​public/​pr/​WCMS_​460488/​lang-​-​ en/​index.htm. In its advisory opinion of 2 April 2015, the International Tribunal for the Law of the Sea considered that the flag state, in fulfilment of its obligation to exercise jurisdiction and control effectively under art 94 of the Law of the Sea Convention, has ‘due diligence’ obligations to take measures to ensure that vessels flying its flag are not engaged in illegal, unreported, and unregulated (IUU) fishing activities within the exclusive economic zone of foreign states and may be held internationally liable in this respect; see https://​w ww.itlos.org/​fi leadmin/​itlos/​documents/​cases/​case_ ​no.21/​advisory_​opinion/​C21_​ AdvOp_​02.04.pdf. 47   Convention No 185 entered into force in February 2005. To date, it has been ratified by thirty-​t wo states. Convention No 108, which is now closed to ratification, had been ratified by sixty-​four states.



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the infrastructure required by the Convention for issuing SIDs, owing to the fact that the Convention’s biometric template could not be read by the devices normally used for machine-​readable travel documents, as well as the uncertainty about the intentions of certain states which might refuse to recognize the new SIDs and consider admission of seafarers only upon the production of a visa. In view of the slow progress, the ILO Governing Body decided in 2015 to initiate an amendment process seeking to replace the SID biometric from a fingerprint printed as numbers in a bar code to a facial image stored in a contactless chip—​a standard which would conform to the technical specifications of the International Civil Aviation Organization (ICAO) for machine-​readable travel documents (e-​passports).48 This change intended to facilitate interoperability, that is to say ensuring that the biometric in a SID issued in any ratifying country can be verified in all other countries. It was also proposed that the references to ICAO Document 9303 should be understood to include any subsequent amendments, so that the Annexes to Convention No 185 would not need to be revised in the future as ICAO issued new versions of ICAO Document 9303 or e-​passport technology evolved. The proposed amendments to the three Annexes of Convention No 185 were adopted by the International Labour Conference in June 2016 and it is hoped that, once they enter into force, they will give a new impetus to the Convention so that the new SIDs aligned with ICAO standards used in e-​passports may become in the very near future universal reference for the purpose of ensuring seafarers’ much needed access to shore leave, while at the same time optimizing border control and port security globally.

5.5  Concluding Remarks Throughout its first 100 years of existence, the ILO has developed several tens of international maritime labour standards for the effective regulation of the terms of employment and working conditions of all those working at sea. The ILO is recognized within the UN system as the competent organization to prepare, adopt, and promote international instruments setting mandatory requirements and providing guidance on minimum acceptable labour conditions for seafarers and fishers. Over the past fifteen years, the ILO has profoundly reviewed its approach and working methods with respect to standard-​setting for the maritime sector and has adopted a consolidated Convention with no gaps in coverage, that is  easily revisable, and globally enforceable to address the needs of the shipping industry of the twenty-​first century. Conceived and modelled after the three core IMO conventions, the ILO’s MLC 2006 complements the environmental, safety, and training standards for the globalized shipping industry by adding a critical fourth dimension—​ the protection of seafarers’ basic labour rights and the promotion of decent working and living conditions on board ships. As a result of the joint efforts of the ILO’s tripartite constituency, the MLC 2006 also addresses the concerns of shipowners 48   See ILO, Background Paper for the Meeting of the Ad Hoc Tripartite Maritime Committee Established for the Seafarers’ Identity Documents Convention (Revised) 2003 (No 185)  TMCASI/​C.185/​2016(rev) (Geneva, 10–​12 February 2016).

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for quality shipping in conditions of fair competition, as well as the needs of public authorities of flag and port states for clear and effective implementation processes. Three years after its entry into force, the MLC 2006 is nearing universal acceptance with ratifying states representing so far over 90 per cent of the world tonnage of ships, while the implementation of the Convention is progressing remarkably. Ship certification for labour conditions is a reality, MLC checklists have become part of inspectors’ daily routine, and ships are being detained or fined for MLC-​related deficiencies. There is now general agreement that safe and eco-​friendly ships are as important as decently managed ships, where wages are paid on time and in full, food is prepared in hygienic conditions, crew cabins are liveable, and seafarers’ fundamental rights are fully respected. States parties to the Convention continue to revise and adapt domestic laws and regulations to bring them into conformity with MLC prescriptions, while the ILO supervisory organs have started the examination of regular reports submitted by state parties and have published their initial findings on implementation challenges. The Convention has already been amended to introduce improvements in respect of abandoned seafarers and the shipowner’s liability for long-​term disability or death of a seafarer owing to occupational injury, illness, or hazard while further amendments on seafarer protection against harassment and bullying have been approved and possible action with regard to the protection of seafarers’ wages in case of piracy is under study. On the eve of its centenary, the ILO may take pride in the work accomplished thus far for the promotion of decent working conditions for those making their living at sea and look confidently in the future as the long journey to Ithaca—​the advancement of human and workers’ rights and the attainment of social justice—​continues, ‘full of adventure, full of discovery’.

6 The Work of the International Monetary Fund and Its Possible Relevance to Global Ocean Governance Emmanuella Doussis

6.1 Introduction This chapter focuses on the role of the International Monetary Fund (IMF) in global ocean governance. It is divided into three sections. It begins with a brief historical account to illustrate the factors that have influenced the institutional development of the Fund and the shape of its current profile. The second section gives a brief overview of its membership, structure, main functions, and decision-​making processes. The third section goes on to consider the possible input of the IMF to matters related to ocean governance. Although the Fund has no direct relevance to global ocean governance, it may nevertheless contribute to its improvement by providing technical assistance and policy advice, as well as a better interaction with other, more competent, international agencies.

6.2  From Bretton Woods to the Late 1970s and Beyond: A Brief History The IMF is one of the two economic institutions founded at the United Nations Monetary and Financial Conference, which took place at Bretton Woods in 1944. The initial idea, largely debated in the Anglo-​American negotiation during the late Second World War period, was to create a bank to help the post-​war reconstruction of the devastated economies and later the economic development, as well as a fund to promote stability to the international monetary order. The project was supposed to be completed by the creation of a third institution, an international trade organization, which would facilitate trade liberalization and, thus, contribute to a more open and global economy. The rationale behind this system was to avoid another repetition of the competitive devaluations that had contributed to the global economic depression experienced during the inter-​war period. However, the implementation of the project would, to some degree, deviate from the original plan for the post-​war international economic order as it took almost fifty years to be fully accomplished.1

1   For further details see Rosa Maria Lastra, ‘The IMF in Historical Perspective’ (2000) Journal of International Economic Law 507.

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At Bretton Woods, forty states2 committed to guarantee the free convertibility of their currencies and maintain a stable (but adaptable) exchange with the US dollar, which was itself tied to a gold standard.3 Thus, the IMF has been assigned with two principal tasks.4 The first related to the prevention of monetary crises, through the surveillance of the monetary regime established at Bretton Woods. The second task was to cure eventual monetary crises, by granting loans to member states with temporary balance-​of-​payments deficits. In other words, the Fund was supposed to maintain the order of this predictable international monetary system by supervising the stability of the exchange rates and convertibility. To accomplish this task, it would overview the monetary policies of the member states and the multilateral system of payments. Therefore, the Fund’s lending activity was largely linked with this stabilization role. It had to be exercised in a limited way and for short periods of time in order to help member states recover from temporary balance-​of-​payments difficulties. This system, which began to function in the late 1950s, worked for almost two decades. During these years, member states had progressively returned to more liberalism and multilateralism of their monetary relations. However, when in the early 1970s the United States decided to remove the gold backing of the dollar, the system of fixed exchange rates collapsed,5 marking the end of the Bretton Woods’ parity regime. The other industrialized countries decided to allow their currency’s exchange value to float freely in response to market pressures.6 Consequently, the initial supervision role of the IMF had no object and the liberalization of capital movement censured international liquidity and access for states to the necessary capital to finance their development. In fact, the IMF system was effective only as long as the movement of capital could be really limited.7 The move from a fixed to a floating exchange rates system led to a reconsideration of the IMF’s role in international monetary relations. Although it proved unable to play the leading part in coordinating this change, not only did the Fund survive but also its role has expanded to cover, among others, the regulation and supervision of banking and capital markets, financial reforms, and debt restructuring.8 The broad enumeration of its goals in Article I of the IMF’s Articles of Agreement9 largely facilitated that process and permitted the institutional adaptation of the IMF to new   Forty-​four states participated in the negotiations. However, the Soviet Union and some other countries chose not to join the institution for various reasons. For further discussion see James Boughton, Tearing Down Walls: The IMF 1990–​1999 (IMF 2012) 49. 3  Volker Rittberger, Bernhard Zangl, and Andreas Kruck, International Organization (2nd edn, Palgrave Macmillan 2012) 54. 4   For a brief presentation of the roots of the monetary system established at Bretton Woods see Masanao Itoh, ‘Pre-​history of the IMF: Debates in the UK and Anglo-​A merican Negotiation’ in Kazuhiko Yago, Yoshio Asai, and Masanao Itoh (eds), History of the IMF:  Organization, Policy and Market (Springer 2015) 3–​24. 5   For a brief overview of the main reasons that led to the collapse of the Bretton Woods system see Masanao Itoh, ‘How Should We View the Transformation of the IMF? Looking at the Collapse of the Bretton Woods System’ in Kazuhiko Yago, Yoshio Asai, and Masanao Itoh (eds), History of the IMF: Organization, Policy and Market (Springer 2015) 309–​18. 6 7   Boughton (n 2) 22.   Rittberger and others (n 3) 194. 8   Rosa Maria Lastra, ‘The Role of the IMF as Global Financial Authority’ LSE Financial Markets Group Paper Series, Special Paper No 192 (May 2010) 1. 9   ‘The purposes of the International Monetary Fund are: 2



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economic circumstances. In fact, its two principal tasks, namely the prevention and cure of monetary crises, could also serve broader financial issues. The IMF’s Articles of Agreement were amended in 1978 to take into account the new situation. Member states were allowed to choose their exchange arrangement and to determine the external value of their currency.10 In order to avoid irrational fluctuations of exchange rates, the IMF was given the task of supervising the exchange rate policy of its member states and act as a last resort lender. Since then, it has played a significant role in combating financial crises. It has supported, through the allocation of loans and technical assistance, the sovereign debt restructuring of some developing countries, including Mexico and Brazil, during the 1980s. It has sustained the transition to market economies of the ex-​communist block during the 1990s. More recently, the IMF has provided Euro-​zone debtor countries (Greece, Ireland, and Portugal) with emergency loans in order to help them recover from the debt crisis and the serious financial difficulties they faced. At the same time, however, it has imposed strict conditions for structural reforms (the so-​called conditionalities). The states concerned were committed to reforming their domestic and foreign economic policies. In case they did not, the IMF reserved the right to withhold further instalments or condition their continuation to new reform plans. As has been eloquently noted, the IMF has thus acted as a ‘firefighter’ called in in an emergency to help countries service their debts, as a ‘policeman’ of structural adjustment efforts, and therefore, as a guardian of the international financial system,11 averting a possible collapse of global financial markets. It is of interest to see whether the IMF has successfully contributed to promoting financial stability. It is true that for almost three decades it has managed to prevent national or regional financial crises from escalating into global ones. Nevertheless, it has been unable to alert member states and prevent the most severe global financial and economic crisis since the Second World War that broke out in 2007 in the IMF’s host country, the United States. Sceptics have therefore expressed serious concerns



(i) To promote international monetary cooperation through a permanent institution which provides the machinery for consultation and collaboration on international monetary problems. (ii) To facilitate the expansion and balanced growth of international trade, and to contribute thereby to the promotion and maintenance of high levels of employment and real income and to the development of the productive resources of all members as primary objectives of economic policy. (iii) To promote exchange stability, to maintain orderly exchange arrangements among members, and to avoid competitive exchange depreciation. (iv) To assist in the establishment of a multilateral system of payments in respect of current transactions between members and in the elimination of foreign exchange restrictions which hamper the growth of world trade. (v) To give confidence to members by making the general resources of the Fund temporarily available to them under adequate safeguards, thus providing them with opportunity to correct maladjustments in their balance of payments without resorting to measures destructive of national and international prosperity. (vi) In accordance with the above, to shorten the duration and lessen the degree of disequilibrium in the international balances of payments of members. The Fund shall be guided in all its policies and decisions by the purposes set forth in this Article.’ 10   Lastra (n 1) 514. 11  Guillaume Devin and Marie-​Claude Smouts, Les Organisations Internationales (Armand Colin 2012) 198.

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about the IMF’s capacity in crisis prevention.12 The Fund’s role as a trusted adviser to almost all governments in the world has been questioned, as in many cases the trusted adviser ‘doesn’t always know what to advise’.13 Furthermore, the IMF has been largely criticized for the weak or even negative contribution of its lending activities to economic growth14 and for its incapacity effectively to combat poverty in developing countries.15 Some even argue that it has neglected the specific needs of developing countries, as it has been preoccupied mainly with the developed countries’ interest in financial stability.16 Nevertheless, after the recent global financial crisis, there has been a considerable rise of the Fund’s lending activities. To be more specific, between 2009 and 2014 the Fund allocated 118 loans valued at US$622 billion to its member countries, which is much higher than the amount allocated between 2003 and 2008 (US$82 billion).17 Furthermore, the IMF has reformed its policy for low-​income developing countries, by introducing new and more flexible concessionary lending facilities. Thus, its lost pride has been restored, at least in theory. Some even talk about a ‘post-​2008 rebirth’ of the IMF.18 In practice, however, its successful performance as a Santa Claus or a bogeyman is mixed. It cannot be denied that the extent of the recent reforms’ effectiveness remains to be seen.

6.3  The Institutional Profile: Adapting to the Changing World Order 6.3.1 Membership The international financial system established at Bretton Woods aimed at becoming universal. However, it took some decades for this ambition to become a reality. At the time of its inception, almost all independent states were present, except of the Axis powers and their orbits. Even the USSR participated in the Conference, but decided not to join the institution. The other socialist countries either remained outsiders, withdrew (Poland, Cuba), or were even expelled (Czechoslovakia). For very different reasons, Switzerland was opposed to the IMF membership for a long period of time. Article II of the IMF’s Articles of Agreement sets the conditions of membership. The Fund is open to ‘countries at such times and in accordance with such terms as may be prescribed by the Board of Governors’. The IMF is, therefore, a traditional 12  Joseph E Stiglitz, ‘The Global Crisis, Social Protection and Jobs’ (2009) 148(1–​2) International Labour Review 1, 6. 13  Barry Eichengreen and Ngaire Woods, ‘The IMF’s Unmet Challenges’ (2015) 30(1) Journal of Economic Perspectives 29, 30; Ngaire Woods, ‘Bretton Woods Institutions’ in Thomas G Weiss and Sam Daws (eds), The Oxford Handbook on the United Nations (Oxford University Press 2007) 233, 241. 14   Martin C Steinwand and W Stone Randall, ‘The International Monetary Fund:  A Review of the Recent Evidence’ (2008) 3 Review of International Organizations 123. 15  Joseph E Stiglitz, ‘Failure of the Fund. Rethinking the IMF Response’ (2001) 23(2) Harvard International Review 14; Stiglitz (n 12). 16   Joseph E Stiglitz, Globalization and Its Discontents (Penguin Books 2002); Ngaire (n 13) 242. 17   Mark Hibben, Poor States, Power and the Politics of IMF Reform:  Drivers of Change in the Post-​ Washington Consensus (Palgrave Macmillan, 2016) 1. 18  ibid.



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international institution, which accepts as members only states, excluding other international or regional organizations, such as the European Union. On the other hand, accession is conditioned to the terms prescribed by the principal organ of the institution, the board of governors. These include the purchase of quotas in the IMF and the endorsement of a liberal monetary regime. Each member is assigned a quota, based on its relative position in the world economy. The quota determines the amount that a member should contribute when joining the institution and the limit of the amount it can borrow. It also determines its voting power. Despite being a United Nations specialized agency,19 UN membership is not required for IMF membership. It should also be noted that IMF membership offers the right to be a member to its ‘sister’ institution, the World Bank. IMF membership has grown progressively. During the 1960s, most of the newly independent countries joined the organization. A second big rise in membership occurred after the break-​up of the Soviet Union. From 152 countries at the end of 1989, membership grew to 182 countries. Switzerland finally joined the IMF in 1991. By the end of the century, the IMF had almost the same number of members as the United Nations. In April 2016, Nauru became the 189th IMF member. As is becoming evident, only few states have not joined yet. Cuba and North Korea have not applied for membership. The other absences concern three small countries:  Andorra, Liechtenstein, and Monaco.

6.3.2 Organs The IMF has three main organs: the board of governors, the executive directors, and the managing director. The board of governors is the principal body governing the IMF. Each country is typically represented by its financial minister or the head of its central bank. The board of governors meets twice a year, in the autumn (annual meetings) and spring (spring meetings). Two committees assist the board with some of the core aspects of its work. The International Monetary and Financial Committee, composed of twenty-​four IMF governors, considers key monetary system policies, and advises in the event of emergencies or eventual amendments of the IMF’s Articles of Agreement. The Development Committee is a joint committee with the World Bank, which advises both the IMF and the World Bank on policies and issues concerning developing countries. The daily operations of the IMF are managed by the executive board, consisted of twenty-​four executive directors. Until recently, five of the directors were appointed by the biggest quota members, while nineteen were elected by the remaining member countries. With the entry into force of the board reform amendment,20 all directors will be elected, starting with the 2016 regular election. Directors represent grouping of members, each grouping electing their executive director for a two-​year period. The

19   Agreement between the United Nations and the IMF approved by the Board of Governors of the Fund on 17 September 1947 and by the General Assembly of the United Nations on 15 November 1947. It entered into force on 15 November 1947 https://​w ww.imf.org/​external/​pubs/​ft /​sd/​index.asp?decision=DN15. 20   This reform, agreed in 2010, became effective in January 2016.

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managing director, formally appointed by the executive directors, governs the operating staff and chairs the executive board meetings. This IMF governance system has been criticized as being excessively influenced by a small group of industrial countries.21 According to this criticism, the influence was apparent in the composition of the restraint organ, where five of the seats were reserved for directors appointed by the biggest quota members, as well as in the decision-​making process. In fact, decision-​making is based on a complex process of weighting votes based on a quota system, reflecting the strength of each member in the world economy.22 Although, in practice, decisions are taken by consensus, in case of a formal voting the quotas of all Organisation for Economic Co-operation and Development (OECD) countries would have sufficed to cast a simple majority vote. Responding to this criticism, the board of governors has introduced quota and governance reforms, including the abolition of the privilege of the biggest quota holders to appoint an executive director.23 As has already been mentioned, nowadays the board is composed of elected directors only. Furthermore, the new quota system reflects better the current economic balance of power among its members.24 Therefore, the ten largest quota holders include now Brazil, China, India, and Russia, joining the United States, Japan, and the four largest European countries (France, Germany, Italy, and the United Kingdom).25 It remains to be seen if these reforms will alter other governance deficiencies, such as the privilege of some countries to choose the main IMF officer, that is, the managing director.26 It seems that this long-​standing practice restricts the effective participation

21   See eg Dries Lesage, Peter Debaere, Sacha Dierckx, and Mattias Vermeiren, ‘Rising Powers and IMF Governance Reform’ in Dries Lesage and Thijs van de Graaf (eds), Rising Powers and Multilateral Institutions (Palgrave Macmillan 2015) 153–​74; Murilo Portugal, ‘Improving IMF Governance and Increasing the Influence of Developing Countries in IMF Decision-​Making’ in Buira Ariel (ed), Reforming the Governance of the IMF and the World Bank (Anthem Press 2005) 75–​106; Xenia Roduner, ‘Governance in International Financial Institutions. The Case of th IMF’ in Alexander Kern and Dhumale Rahul (eds), Research Handbook on International Financial Regulation (Edward Elgar Publishing 2012) 349–​68. 22   According to Wouters and Odermatt, this quota system can be partly explained by historical reasons, since the ‘one state, one vote’ system would not have been a politically acceptable option at the time of the IMF inception. Indeed, the main resources of the Fund were provided by the then world’s stronger economies, and their will to ensure a greater say in the management of the Fund. The authors suggest that another reason is the IMF’s role as a fund rather than a rule-​making body; see Jan Wouters and Jed Odermatt, ‘Comparing the “Four Pillars” of Global Economic Governance: A Critical Analysis of the Institutional Design of the FSB, IMF, World Bank and WTO’ Working Paper No 128, Leuven Centre for Global Governance Studies (December 2013) 10. 23   For further details see Lesage and others (n 21) 153–​74. 24   The current quota formula is a weighted average of GDP, openness to the global economy, economic variability and international reserves. Quotas are used to determine both the member’s voting power and the amount of financing it can obtain from the IMF. 25   Despite this reform, the emerging economies remain significantly underrepresented compared to their GDP blend share. For further discussion see Lesage and others (n 21) 161. 26   According to an informal agreement between the United States and Western European countries, the latter choose the managing director of the IMF, while, in turn, the former appoints the president of the World Bank. During the 2010 reforms, members committed to end this practice. However, after the resignation of Dominique Strauss-​Kahn in 2011, the Europeans claimed the post and supported the then French Minister of Finance, Christine Lagarde. The BRICS (Brazil, Russia, India, China, and South Africa) could not agree on a common candidate and thus missed the opportunity to change this long-​ standing practice. For further discussion see Lesage and others (n 21) 167.



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Table 6.1  Voting-​power allocations (according to the Board Reform Amendment, in force since 26 January 2016) Country

Voting power (%)

United States

16.54

Japan

6.16

China

6.09

Germany

5.33

France

4.04

United Kingdom

4.04

Italy

3.03

India

2.64

Russian Federation Brazil

2.60 2.23

Source: Data available at https://​w ww.imf.org/​external/​np/​sec/​memdir/​members.aspx.

of other members in the important decision of appointing the head of the institution (Table 6.1).27

6.3.3 Functions Nowadays, the IMF has three main functions: economic surveillance, financial assistance, and capacity development. Economic surveillance is the key function of the IMF’s activities. It entails the IMF’s responsibility to oversee the international monetary system and global economic developments and monitor the economic and financial policies of its members. It stems from the assessment of exchange arrangements, exchange rates, and balance-​ of-​payments to the monitoring of a wide range of economic policies, including monetary and fiscal policies, structural issues, and institutional developments.28 The surveillance function is exercised at three levels:  bilateral, multilateral, and regional. Bilateral surveillance, better known as the ‘Article IV consultation process’ with reference to the specific article of the IMF Agreement which spells it out, takes the form of a two-​way policy dialogue between the IMF staff and each member country authorities, that is, government and central bank officers, as well as other stakeholders. A Fund staff team visits the country regularly (typically every year) to collect information on a wide range of issues of macro-​economic importance (fiscal, financial, foreign exchange, and monetary policy) and other relevant issues, such as social, labour, environmental policies, and institutional development. According to the IMF Articles of Agreement, the members are obliged to cooperate with the Fund by supplying all the necessary information.29 The IMF staff presents a report to the executive board for discussion. The report includes, among other items, an assessment of 28   See eg Portugal (n 21) 88.   Lastra (n 8) 6.   Section 3(b). For further discussion see Lastra (n 8).

27

29

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the economic policy and performance of the country under review. The publication of the report is subject to the member country’s agreement. In 2016 the IMF conducted 117 Article IV consultations.30 Multilateral surveillance involves the monitoring of the world economic and financial market developments and prospects in addition to analysing spill-​overs from member policies onto the global economy. It is carried out through periodical reviews, such as the World Economic Outlook, the Global Financial Stability Report, and the Fiscal Monitor. The IMF also assesses the policies of regional economic unions, such as the European Union and the West African Economic and Monetary Union, through the Regional Economic Outlook (regional surveillance). The second main function performed by the IMF concerns financial assistance to its members. It should be noted, however, that the IMF is neither a development bank nor an aid agency. It lends to member countries facing balance-​of-​payments problems. In other words, a member country may request IMF financial assistance if it lacks or potentially lacks financing on affordable terms to meet its net international payments. Therefore, IMF loans aim to help member countries to rectify economic policies and restore growth without having to resort to actions damaging their own or other members’ economies. The main resources of its finance are the quotas paid by each member country upon joining the institution (quota subscription). The IMF can also borrow from its member countries to supplement its quota resources. Each member is entitled to obtaining a temporary loan of 25 per cent of its quota in case of balance-​of-​payments problems. Nevertheless, if it wants to obtain a loan up to this percentage, it must submit a request to the IMF, explaining how it intends to solve its problems. The IMF determines the size and conditions of the loan depending on the lending instrument used. These conditions often concern the implementation of heavy structural adjustments, as well as governance and institutional reforms. In other words, IMF’s financial assistance is conditional on the adoption and implementation of the structural and governance reforms laid down in the lending agreement between the IMF and the lending member country. In most cases, the economic policy programme that a lending country has agreed to implement is presented to the executive board in a ‘letter of intent’ and is further detailed in the annexed ‘memorandum of understanding’. As noted, ‘the logic behind the conditionality requirements is that a country with external payment problems is spending more than it is taking in. Unless economic reform takes place, it will continue to spend more than it takes in’.31 The IMF loan is released in instalments, each one of them depending upon the progress made towards compliance with the IMF ‘conditionalities’.32 Two types of lending, or so-​called facilities, are available to the member countries: loans provided at non-​concessional interest rates and loans addressed to poorer and more vulnerable member countries on concessional terms.

  IMF Annual Report 2016 http://​w ww.imf.org/​external/​pubs/​ft /​ar/​2016/​eng/​pdf/​ar16_​eng.pdf 43.   Lastra (n 1) 518. 32   ibid. Lastra defines conditionalities as ‘the set of policies and procedures developed by the Fund to govern the access to and the use of its resources by member countries’. 30 31



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There are three non-​concessional facilities: the standby arrangements, the extended fund facility and the flexible credit line. Standby arrangements, established in 1952, provide short to medium term assistance for countries with short-​term balance-​of-​ payment difficulties. The loan is released in instalments over one or two years provided that the member country adopts policies to resolve its balance-​of-​payments problems within a reasonable period of time. The repayment schedule is from three to five years. The extended fund facility, introduced in 1974, concerns longer-​term assistance to support the members’ structural reforms to address long-​term balance-​of-​ payments problems. Instalments are paid over three to four years, provided that the member country adopts up to a four-​year programme, with structural agenda and annual detailed statement of policies for the next twelve months. Repayment is expected within four to ten years. The flexible credit line, established in 2009, is a more flexible instrument addressing countries with strong macro-​economic fundamentals, facing current balance-​of-​payments pressures. The repayment period is from three to five years. It should also be noted that, in 2011, the IMF introduced a rapid financing instrument to grant loans quickly to members facing an urgent balance-​of-​payments need. The repayment period is from three to five years. Low-​income developing member countries may obtain IMF loans on concessional terms.33 In 2010 the IMF reformed its system of support to the poorer countries and introduced new and more flexible concessional facilities.34 These include the extended credit facility, the standby credit facility and the rapid credit facility. The extended credit facility provides medium-​term support to low-​income countries facing protracted balance-​of-​payments problems. Loans under this facility have zero interest rate and repayments are expected within five and a half to ten years. The standby credit facility was established to resolve short-​term balance-​of-​payments needs of the low-​income member countries. It has an interest rate of 0.25 per cent with repayment within four to eight years. Finally, the rapid credit facility provides financial assistance to low-​income countries with urgent balance-​of-​payments needs with limited conditionality. It has zero per cent interest rate and repayments are expected within five and a half to ten years (Table 6.2). In 1996 the IMF and the World Bank launched a joint initiative, the heavily indebted poor countries (HIPCs) initiative, to provide rapid debt relief for the poorest member countries. The initiative was modified in 1999 to strengthen the links between debt relief, poverty reduction, and social policies. Countries asking for this kind of assistance must commit to poverty reduction through policy change, and demonstrate a good track-​record over time. Of the thirty-​nine member countries eligible for debt relief, thirty-​six are receiving full debt relief from the IMF (Table 6.3).35 The IMF can also provide grants for debt relief to low-​i ncome member countries through the Catastrophe Containment and Relief Trust, established in 2015. This 33   The policy framework for determining countries’ eligibility for IMF concessional financing is set out in Executive Board Decision No 14521-​(10/​3) adopted on 11 January 2010 http://​w ww.imf.org/​external/​ pubs/​ft /​sd/​index.asp?decision=14521-​(10/​3) (last accessed 30 November 2016). 34   For further details see 2016 Handbook of IMF Facilities for Low-​Income Countries http://​w ww.imf. org/​external/​np/​pp/​eng/​2016/​022216a.pdf (last accessed 24 November 2016). 35   IMF Annual Report 2016 (n 30) 70.

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Table 6.2  Low-​income member countries eligible for concessional loans (as of 2015) Africa

Europe

Benin

Moldavia

Burkina Fasso

Latin America

Burundi

Dominica

Cameroon

Grenada

Capo Verde

Guyana

Central African Republic

Haiti

Chad

Honduras

Comoros

Nicaragua

Congo, Rep.

St Lucia

Congo, Dem. Rep.

St Vincent and the Grenadines

Côte d’Ivoire

Middle East and Central Asia

Djibouti

Afghanistan

Eritrea

Kyrgyz Republic

Ethiopia

Tajikistan

Gambia

Uzbekistan

Ghana

Yemen

Guinea

Other Asia

Guinea-​Bissau

Bangladesh

Kenya

Bhutan

Lesotho

Cambodia

Liberia

Kiribati

Madagascar

Lao PDR

Malawi

Maldives

Mali

Marshall Islands

Mauritania

Micronesia

Mozambique

Myanmar

Niger

Nepal

Rwanda

Papua New Guinea

Sao Tome e Principe

Samoa

Senegal

Solomon Islands

Sierra Leone

Timor Leste

Somalia

Tonga

South Sudan

Tuvalu

Sudan

Vanuatu

Tanzania Togo Uganda Zambia Zimbabwe Source: 2016 Handbook of IMF Facilities for Low-​Income Countries.



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Table 6.3  Member countries eligible for HIPC assistance Afghanistan

Honduras

Benin

Liberia

Bolivia

Madagascar

Burkina Faso

Malawi

Burundi

Mali

Cameroon

Mauritania

Central-​African Republic

Mozambique

Chad

Nicaragua

Comoros

Niger

Congo, Rep.

Rwanda

Congo, Dem. Rep.

Sao Tome e Principe

Côte d’Ivoire

Senegal

Eritrea

Sierra Leone

Ethiopia

Somalia

Gambia, the

Sudan

Chana

Tanzania

Guinea

Togo

Guinea-​Bissau

Uganda

Guyana Haiti

Zambia

Source: http://​go.worldbank.org/​4IMVXTQ090

facility aims to support countries facing balance-​of-​payments deficiencies beyond their control, emerging from major natural disasters, such as massive earthquakes, or from conflicts. IMF assistance is typically limited to 25 per cent of the member’s quota in the IMF. However, amounts up to 50 per cent of quota can be and have been provided in certain circumstances. The loan provided is subject to the basic rate of charge and repayments are expected within three and a half to five years. The third main function of the IMF concerns capacity building. It involves technical assistance and training to officials in member countries. It aims to help, in particular, low-​i ncome and fragile countries build strong institutions and develop skills to formulate and implement sound macro-​economic and financial policies. This function has considerably expanded lately, representing US$256 million in the financial year 2016, that is, over a quarter of the IMF’s administrative spending. Capacity building concerns areas in which the Fund’s expertise is most relevant, such as monetary and financial issues, tax policy, treasury management and accounting systems, macroeconomic, and financial statistics. Technical assistance may take many forms; for instance, IMF staff mission visits or the appointment of experts from a few weeks to several years. Capacity building therefore complements the other two IMF functions, economic surveillance and lending, in an attempt to contribute to their effectiveness.

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6.4  The Role of the IMF in Global Ocean Governance As has been shown, the IMF is mainly a financial institution offering guidance and assistance (both financial and consultative) to its member countries facing balance-​ of-​payments deficiencies. Unlike the loans provided by development banks, the IMF does not lend for specific projects or activities, such as maritime infrastructure projects or projects relating to the protection of the coasts from overfishing. It may help only member countries that experience actual or potential balance-​of-​payments difficulties. This is a prerequisite for any IMF loan. Therefore, at first sight, the IMF has very little or even nothing in common with matters related to global ocean governance. However, by this decade, effective global ocean governance has become such a critical and universally shared goal that all potent institutions should contribute to the cause. The IMF is no exception. In fact, it may be involved in many indirect ways and through its three main functions: economic surveillance, lending, and capacity building. As noted, the IMF is the only global institution having the power to overview and monitor the economic policies of almost all countries in the world. It may therefore provide data and good practices for the impact of the ocean economy on global economic growth and financial stability. The ocean economy encompasses ocean-​based industries, such as shipping, fishing, offshore wind, and marine biotechnology, but also the natural assets and ecosystem services that the ocean provides (fish-​shipping lanes, CO2 absorption etc).36 Thus, it offers a great potential for boosting economic growth, jobs, and innovations. According to the OECD, the output of the global ocean economy is estimated at US$1.5 trillion and this could more than double by 2030 on a business as usual scenario.37 In this context, the IMF might integrate the impact of the ocean economy in the analysis of macroeconomic policies and economic growth of its member countries. It could refine its practices to strengthen its potential to identify major problems before they erupt into crises. In addition to its traditional macroeconomic assessment, it may take into account the relevant needs, problems, and structural weaknesses of its member countries. The Fund could also assist its low-​income member countries to establish economic conditions that will optimize their ability to put development aid to good use. It should encourage members to publish key economic data, information about policies, and government spending concerning the use of the oceans. In other words, the ocean economy is an appropriate issue for IMF surveillance, bilateral as well as multilateral. On the other hand, the IMF should consider the effects of its policies on global ocean governance and reduce or eliminate any negative impacts. Concerns about the inclusive and sustainable use of the oceans might play an important role in economic policy considerations. This also includes research tο better understand what inclusive and sustainable use of the oceans must involve. The IMF should, 36  OECD, The Ocean Economy in 2030 (OECD 2016) 13 http://​geoblueplanet.com/​w p-​content/​uploads/​ 2016/​05/​OECD-​ocean-​economy.pdf). 37  ibid.



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therefore, improve its technical assistance, provide guidance, and support to its member countries in designing economic policies to achieve the objective of effective ocean governance. Furthermore, the IMF may contribute to effective ocean global governance by elevating the sustainable development goals (SDGs) to the top of its agenda. SDGs are a set of seventeen goals, adopted by the United Nations in 2015, which focus on halving poverty, protecting the planet, and ensuring prosperity for all over the next fifteen years.38 One of the goals is of particular importance for ocean governance, as it entails the duty to conserve and sustainably use the oceans, seas, and marine resources (SDG No 14). The IMF may contribute to this effort through its policy advice, technical assistance, and loans to member countries, as well as its role in mobilizing donor support. The challenges of mobilizing the financing resources needed to help meet the SDGs were discussed at the Third United Nations Conference on Financing for Development in Ethiopia, in July 2015. This is where the Addis Ababa Action Agenda on a sustainable financing strategy was adopted. During the Conference, the IMF committed with multilateral development banks to extend more than US$400 billion in financing over the next three years and working more closely with private and public-​sector partners to help mobilize the resources needed to achieve the SDGs. 39 Moreover, the IMF has also promised to enhance its support for its poorer member countries. Thus, it increased access to all IMF concessional loan facilities by a full 50 per cent and established a zero per cent interest rate for lending under the rapid credit facility targeted at low-​i ncome member countries hit by natural disasters or conflicts.40 It also committed to enhance policy advice and technical assistance, as well as other forms of capacity development focused on the unique challenges of development.41 However, these improvements are not adequate to achieve the SDGs. The Fund’s mechanisms should be better adapted, particularly to the needs of its poorer member countries. For instance, compliance with SDGs could be integrated in the IMF’s conditionalities for lending. The Fund may also assess progress toward the achievement of the goals through annual global monitoring, as it did so, together with the World Bank, for the millennium development goals. It may additionally evaluate the possibility of achieving the SDGs through macroeconomic scenarios. Furthermore, it could verify if development aid contributes effectively to the economic stability and if this aid is enough for financing the reforms needed to achieve the goals. By providing advice in key areas of public investment management, the Fund may help countries address more efficiently infrastructure gaps related to ocean matters. The announcement of its intention to ‘deepen its analysis of the relationship between public investment, growth, and debt sustainability to help identify the appropriate pace for scaling up infrastructure spending’ could be a good start.42 However, in this context, the Fund should further engage with relevant civil society groups, that is, business forums,   These goals, which replace the expiring millennium development goals, are universal. 40   IMF, Press Release No 15/​329 (10 July 2015).  ibid. 41 42   IMF Annual Report 2016, 3 and 17.  ibid 17. 38 39

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labour movements, local community groups, and think tanks. Until now, there has been only a weak involvement of civil society groups in the Fund’s activities, through a ‘listening and learning approach’ based on guidelines distributed in 2003 and updated in 2015.43 Moreover, a greater integration of the international financial institutions and other specialized agencies is needed to develop consistent policies on matters related to ocean governance. It is generally admitted that coordination between international institutions is very weak or non-​existent. As far as the IMF is concerned, it has been noted that it has not always been easy to work effectively, even with its ‘sister’ organization, the World Bank.44 In fact, their functions often overlap and it has even been suggested that the two institutions should merge.45 The relations with the United Nations have never been too close either, the IMF being only de jure part of the UN system, but de facto totally separated,46 same as two strangers in the same family. The lack of international policy coordination and synergies between international institutions is more than evident in the context of ocean governance, where maritime activities, although inter​connected, are mostly regulated sector by sector. Undoubtedly, the sustainable use of the oceans requires better policy coordination and more synergies between relevant international institutions. It should be noted, however, that the lack of international policy coordination does not concern only international agencies but also national bureaucracies. In fact, the foreign policy of different countries is often fragmented. The operation of the IMF depends on the member countries’ financial ministries and the central banks governors; these representatives are often closer to their homologues in other countries and the Fund’s staff than to other national ministries.47 The influence of the latter is very limited. In other words, multilateral negotiations favour further fragmentation. Each institution operates on its own without a holistic approach to developing comprehensive solutions to problems. The IMF could contribute to improving coordination and interaction between international institutions through memoranda of understanding (MoUs) and other agreements. In fact, the Fund has already signed an MOU for enhanced cooperation with the European Investment Bank. It has also agreed with the European Commission’s Directorate-General for International Cooperation and Development on a new strategic partnership framework for developing countries. It could therefore further expand this practice to other institutions, especially the ones with a mandate related to ocean matters to better coordinate their actions.

43   Guide for Staff relations with Civil Society Organizations http://​w ww.imf.org/​external/​np/​-​cso/​eng/​ 2003/​101003.htm. 44   Boughton (n 2) 82; Wouters and Odermatt (n 22) 17. 45   Dominique Carreau, ‘Why Not Merge the International Monetary Fund (IMF) with the International Bank for Reconstruction and Development (World Bank)?’ (1994) 62 Fordham Law Review 1989, http://​ ir.lawnet.fordham.edu/​cgi/​v iewcontent-​.cgi?article=3113&context=flr). 46   Thomas G Weiss, What’s Wrong with the United Nations and How to Fix It (Polity Press 2009) 184. 47   Devin and Smouts (n 11) 209.



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6.5 Conclusion Since its inception, the IMF’s responsibilities have been reconsidered to adapt to the changing world economic order. Nowadays, it plays a more extensive role in advising and financing its member countries as well as monitoring the global economy. It is the only international actor having the expertise, the staff, and know-​how to react quickly in response to financial crises. Its current operation stems from lending member countries with balance-​of-​payment problems and restructuring sovereign debts, to providing policy advice for macroeconomic issues, structural and governance reforms, and promoting strategies to combat poverty. The challenge for the IMF is to find ways to integrate the sustainable use of the oceans to its agenda without extending to fields that it has no mandate or expertise in.

7 INMARSAT and the Modern International Mobile Satellite Organization Francis Lyall and Paul B Larsen*

7.1 Introduction INMARSAT is recognized as the major provider of maritime communications by satellite, although in the future it may have competitors.1 Begun as an international organization, the present INMARSAT is a successful commercial company offering a range of telecommunication services to mobile users. In addition, it has international service obligations that fall within the Global Maritime Distress and Safety Organization known as IMSO, the International Mobile Satellite Organization, the remains of the original international organization, which now also oversees the International Maritime Organization (IMO) system for the Long-​range Identification and Tracking of Ships. INMARSAT’s general relationship to ‘international governance’ is now marginal and, in some interpretations, approaching tenuous.

7.2  Technical Background That worldwide communications could be provided by satellite relays was first suggested by A C Clarke in 1945.2 Three satellites located at a separation of 120 degrees in the geostationary orbit 22,250 miles/​35,780 kilometres above the equator would be visible around the Earth. However, because of the attenuation of an up-​or down-​ link signal during its passage through the atmosphere, it is more practicable to seek to cover less than the full 120 degrees, thus reducing the depth of atmosphere that has to be penetrated. Four geostationary satellites at 90 degree separation provide a better global service, and systems such as INMARSAT have used that configuration. Obviously, both land and sea areas are covered.3

  © 2017 Francis Lyall and Paul B Larsen. This chapter draws on material prepared for the second edition of Francis Lyall and Paul B Larsen, Space Law: A Treatise (Routledge 2018). 1   Originating as the International Maritime Satellite Organization (INMARSAT), the official name was changed in 1994 to reflect the extension of its activities into land-​mobile and air-​mobile services. However, the INMARSAT acronym has been retained for business identifiability. 2  A C Clarke, ‘Extra-​terrestrial Relays:  Can Rocket Stations Give World-​Wide Radio Coverage?’ Wireless World (October 1945) 303–​08. 3   Because the Earth is an oblate spheroid geostationary satellites are not visible in the Polar Regions. Such areas are served by satellites in low earth orbit operated by other providers such as Iridium. *



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7.3 History The international organization of maritime telecommunications has long roots.4 Because of the opposition of the investors in ‘wired’ services, the telegraph and telephone, the ‘wireless’ communications facility which we now call ‘radio’ found its main initial market in ship-​to-​ship and ship-​to-​shore communications. Only radio could provide a telecommunication link to ships. International regulation came swiftly. The Berlin Convention of 1906 set out principles for the operation of radio services that remain the foundation of the arrangements now operated through the International Telecommunication Union (ITU).5 The modern INMARSAT system and others providing maritime communications via satellite relays operate within these constraints. When technology made telecommunication by satellite possible, the United States (US) initially intended to establish a system that would be owned and operated by a sui generis US company, COMSAT, providing a service to which others would subscribe as ‘authorised users’.6 Others, led by Europe, were not willing to enter such an arrangement and, after negotiations, an international organization, INTELSAT, was established to take matters forward instead.7 INTELSAT had an intriguing hybrid structure, based on an intergovernmental agreement and an operating agreement between the telecommunications entities of its participating states.8 Financial contribution to and the share of ownership of INTELSAT of each party depended at first on international telecommunications traffic statistics, the ‘quota’. Later the members’ quota was calculated on the basis of their use of the satellite system. Its main authority was a board of governors of up to fifteen, the members of which represented at least a minimum shareholding or quota, if necessary made up by the cumulation of shares held by several telecommunications entities that agreed to be so represented. In addition, a meeting of signatories (all the signatory telecommunications entities) met annually, and extraordinarily as needed for some other purposes. Such a structure was not acceptable to the Soviet bloc. The international telecommunications traffic 4   See F Lyall, International Communications:  The International Telecommunication Union and the Universal Postal Union (Ashgate 2011); G A Codding Jr, The International Telecommunication Union: An Experiment in International Cooperation (Brill 1952, Arno Press 1972). 5   Radio-​telegraphic Convention, Final Protocol and Regulations, signed at Berlin 3 November 1906, 1909 UKTS 8, Cd 4559; 99 BFSP 321 and 333; (1906) UK Parliamentary Papers, HC 368 (1906) UK State Papers, vol CXXXVIX; and electronically at http://​earlyradiohistory.us/​1906conv.htm, or in French at http://​w ww.itu.int/​dms_​pub/​itu-​s/​oth/​02/​09/​S02090000125201PDFF.PDF. The Convention and Final Protocol (but not the Service Regulations) are at 203 CTS 101; 99 BFSP 321; (US) 37 Stat 15665, TS 568; (1906) 3 AJIL Supp 330–​40; (1923) 3 Malloy 2889; 1 Bevans 556. 6   The Communications Satellite Act 1962, Public Law No 624, 76th Cong, 2nd Sess., 76 Stat 419; (1962) 1 ILM 331–​38. The Act was amended during the life of COMSAT. For a treatment of COMSAT down to 1989 see F Lyall, Law and Space Telecommunications (Gower, 1989) 30–​73. 7   INTELSAT went through an ‘interim’ phase. See the Agreement Establishing Interim Arrangements for a Global Commercial Communications Satellite System, and Relative Special Agreement, 1964, 514 UNTS 25; 1966 UKTS 12, Cmnd 2436 and 2940; 15 UST 1705, TIAS 5646; (1964) 3 ILM 805–​14. 8   Agreement relating to the International Telecommunications Satellite Organization (INTELSAT) (20 August 1971), 1220 UNTS 21; 23 UST 3813, TIAS 7532; 1973 UKTS 80, Cmnd 5610; 1973 ATS 6; (1971) 10 ILM 909. Operating Agreement relating to the International Telecommunications Satellite Organization (INTELSAT), 1220 UNTS 149; 23 UST 4091, TIAS 7532; 1973 UKTS 80, Cmnd 5461; (1971) 10 ILM 946.

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generated by the USSR and its allies would have resulted in it having a minimal participative voice in the organization. Instead, the USSR set up the INTERSPUTNIK system, a system in effect limited to the USSR and its allies.9 INTELSAT was successful. Soon after it began operations, the profits from its system were sufficient to defray the costs of satellite development, construction, launch, satellite replacement, and innovation in the services offered. But the INTELSAT system was basically directed to the provision of point-​to-​point connections, its signals thereafter being fed into existing terrestrial telecommunications networks. At that stage, INTELSAT used, and for some purposes still uses, large ‘gateway’ ground stations, with its dishes usually positioned so as to maintain communication with the relevant satellite. The requirements for maritime services are different. In particular, the terrestrial reception, and transmitting equipment was likely to be in motion and for use on ships, had to be compact.

7.4  Maritime Communications Terrestrial long-​range communications with and between ships were subject to the vagaries of the short-, medium-, and long-​wave frequency bands. Once over the horizon, ships were dependent on signals being reflected by the Heaviside Layer. That was acceptable for telegraphy and some voice communication, but not much else. In contrast, the higher frequencies, the very high frequency (VHF) and ultra high frequency (UHF) bands, allow a precision of signal ideal for detailed data transmission as well as many sorts of telecommunications, including television. But VHF and UHF signals propagate in line of sight. Ships cannot use them to communicate over the horizon. A satellite relay obviates that difficulty and affords other benefits on a dial-​up basis when needed.10 Once INTELSAT had proved the concept, it was clear that some sort of maritime system was possible and undoubtedly desirable. In addition, a maritime service could contribute to the safety of life at sea, always a major concern of maritime governance. The safety role that radio can play had emerged starkly with the sinking of the RMS Titanic in 1912.11 An immediate result was the inclusion of specific maritime radio provisions in the London Radio-​Telegraph Convention of 1912,12 and the adoption of the International Convention on the Safety of Life at Sea, of January 1914.13 These are   See Lyall (n 6) 296–​302.   Advantages include that radio-​operators do not have to be ‘on watch’; messaging can be less terse and more precise; engine, container, refrigerating, and other mechanisms can be monitored from ‘home’, thus reducing the need to carry personnel; navigation can be directed by the most efficient routes avoiding bad weather, navigational hazards, ‘queues’ at certain straits and canals etc; and redirecting among destinations is facilitated. 11   ‘U.K. Shipping Casualties (Loss of the Steamship “Titanic”): Report of a Formal Investigation into the circumstances surrounding the foundering on 15th April of the British Steamship “Titanic” of Liverpool, after striking ice in or near Latitude 41° 46′ N., Longitude 50° 14′ W., North Atlantic Ocean, whereby loss of life ensued’ (1912–​1913) 76 BFSP, Cd 6352. 12   International Radio-​telegraph Convention, Final Protocol and Services Regulations (5 July 1912) 1 LNTS 135, 191; 81 BFSP 79; (1912) UKTS 10, Cd 6873; 38 Stat 1672, TS 581; 216 CTS 244. 13   International Convention on the Safety of Life at Sea (30 January 1914)  219 CTS 177, 1914 108 BFSP 283. 9

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now paralleled by the modern Radio Regulations of the ITU, and by the requirements of the 1974 International Convention on the Safety of Life at Sea (SOLAS).14 INTELSAT itself could have provided a maritime service, but the Eastern bloc, which at that stage had declined to be involved in INTELSAT, would not have used it. On the other hand, because of its vast shipping and fishing fleets the Eastern bloc had a major interest in a maritime communications satellite system. INTELSAT could have provided maritime service for the West and a variant of INTERSPUTNIK similarly for the East, but that was not sensible. A  service common to all shipping was logical and prudent. Again, some considered that since the new system would be using a different technology, which required the use of mobile terminals smaller than the cumbrous dishes of the INTELSAT gateways and which would be operating in a specialized environment, a separate dedicated provider was in any case a better solution. There was a question as to whether the International Maritime Consultative Organization (IMCO) (as it then was) should be involved, but it was felt that that organization, being consultative in its purpose, was unsuitable to run an operational service. The solution was therefore the creation of a new international organization dedicated to the provision of maritime services, and in which the interests of shipping nations might be properly secured.

7.5 INMARSAT INMARSAT was birthed through the International Maritime Organization (IMO) in its previous incarnation as the International Maritime Consultative Organization (IMCO). IMCO Resolution A.305 (VIII) of 23 November 1973 called for an international conference to consider the setting up of an international maritime satellite system. Meetings were held in 1975–​1976 at which fifty-​four countries were present at one or more sessions, with three others sending observers. In addition, various international governmental and non-​governmental organizations also sent observers.15 The documents establishing INMARSAT consisted of an intergovernmental agreement, the Convention, and an operating agreement between telecommunications entities designated by each party.16 These came into force respectively after having been accepted by states holding at least 95 per cent of the total investment shares of the organization (Convention Article 33(1), Operating Agreement Article XVII). Reservations were not permitted (Convention Article 32(5)). Amendments to the Convention and the Operating Agreement were competent (Convention Article 34; Operating Agreement Article XVIII) and came into force after approval by two-​ thirds of the states and signatories holding at least two-​thirds of the total investment 14   International Convention on the Safety of Life at Sea (SOLAS) 1184 UNTS 2; (1980) UKTS 46, Cmnd 7874; 32 UST 47, TIAS 9700; (1975) 14 ILM 963. 15   Sessional Act of the Second Session of the International Conference on the Establishment of an International Maritime Satellite System (1976) 15 ILM 219. 16  Convention on the International Maritime Satellite Organization (INMARSAT) (3 September 1976) 1143 UNTS 105; 1979 UKTS 94, Cmnd 7722; 31 UST 1, TIAS 9605; (1976) 15 ILM 1051–​76. Operating Agreement on the International Maritime Satellite Organization (INMARSAT) 1143 UNTS 213; 1979 UKTS 94, Cmnd 7722; (1956) 15 ILM 233; INMARSAT, Basic Documents (4th edn, INMARSAT 1989).

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shares.17 INMARSAT had legal personality (Convention Article 25) and was entitled to the privileges and immunities normal for an international organization (Convention Article 27).18 It was headquartered in London.19 The original purpose of INMARSAT was the provision of maritime communications services (Convention Article 3). The use of its space segment was open to ships, to sea platforms, and to earth stations communicating with the space segment from territories under the jurisdiction of parties (Convention Article 7).20 Communications service in case of distress and for safety of life was a minor purpose of the INMARSAT system.21 Telecommunication services were provided without discrimination as to nationality (Convention Article 7(1)), and the organization sought to provide service wherever there was need (Convention Article 3(2)) on conditions laid down by the INMARSAT Council (Convention Article 7(1)). The INMARSAT system was to be used exclusively for peaceful purposes (Convention Article 3(3)).22 INMARSAT operated on a commercial basis and was financed by the capital contributions of signatories and by operating revenues (Convention Article 5; Operating Agreement Article III). It had power to own or lease its space segment (Convention Article 6). Ownership of the INMARSAT space segment was shared by the signatories to the Operating Agreement in proportion to their investment share (Convention Article 5(1)). The Operating Agreement made complex provision for financial matters, payments, the settlement of accounts, and coping with defaulters. Procurement policy was to encourage worldwide competition (Convention Article 20), and provision was made for members’ access to intellectual property and technical information developed in connection with INMARSAT contracts (Convention Article 21). The structure of INMARSAT was simpler than that of INTELSAT. It consisted of an Assembly, a Council, and a Directorate under a director general (Convention Article 9). There was no meeting of signatories or board of governors. The INMARSAT Assembly met every two years although extraordinary sessions were competent (Convention Article 10(2)).23 It comprised all the parties to the Convention (Convention Article 10(1)), each having one vote (Convention Article

17   The initial investment shares prior to their recalculation on the basis of usage was contained in an Annex to the Operating Agreement (1976) 15 ILM 246. 18   Protocol on the Privileges and Immunities of the International Maritime Satellite Organization (INMARSAT) (25 February 1980) 1328 UNTS 149; 1982 BPP Misc 6, Cmnd 8497; INMARSAT, Basic Documents (3rd edn, INMARSAT 1986). 19   Headquarters Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Maritime Satellite Organization, 1203 UNTS 131; 1980 UKTS 44, Cmnd 7917; and INMARSAT, Basic Documents (n 18). 20   See below as to the later extension to air and land-​mobile service. 21   Cf below as to the protection of safety and distress services in the privatized INMARSAT. 22   The problem of that requirement was the inability of INMARSAT to detect any breach and therefore the impossibility of any enforcement. The content of messages was not known to the service provider. INMARSAT traffic has been shown to increase at times and in areas where there is conflict. INMARSAT users’ equipment can be small (roughly the size of a briefcase), and portable. The start of non-​shipping use of the INMARSAT system seems to have been in 1982 when INMARSAT terminals were removed from ships in Beirut harbour and taken inland up into the hills during Israel’s invasion of Lebanon. Cf W von Noorden, ‘INMARSAT use by Armed Forces: A Question of Treaty Interpretation’ (1995) 23 J Sp L 1, 1–​18. 23   INMARSAT, Assembly Rules of Procedure of the Assembly: Basic Documents (n 16) 87–​96.



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11(1)). Responsible for giving general guidance to the organization and for long-​term policy (Convention Article 12(1)(a)), the Assembly ensured that INMARSAT activities conformed to the Convention, the UN Charter, and other INMARSAT treaties (Convention Article 12(1)(b)), decided on recommendations from the Council, and gave its views on reports from that body (Convention Article 12(1)(d)). Importantly, the Assembly could, on the proposal of the Council, authorize facilities for distress or safety of life (Convention Article 12(1)(c)) in addition to those contemplated as part of the INMARSAT general services (Convention Article 7). The telecommunications entities designated by parties to sign the Operating Agreement supplied the membership of the Council.24 Under Convention Article 13, the INMARSAT Council consisted of twenty-​two representatives of signatories, eighteen nominated by the signatories or groups of signatories which were largest by quota,25 and four elected by the Assembly to represent world areas not otherwise represented (Convention Article 13(1)(e)).26 The Council met at least three times a year (Convention Article 14(1)). Whenever possible, its decisions were taken unanimously (Convention Article 14(2)).27 When voting was required on procedural questions, a simple majority of Council members present and voting, each with one vote, sufficed (Convention Article 14(2)). For matters of substance, voting weighted by reference to investment share was employed, and a majority holding at least two-​thirds of the investment share represented on the Council was required (Convention Article 14(2) and (3)(a)), the same as the Council quorum. However, no Council member might exercise more than 25 per cent of the total voting weight of the organization (Convention Article 14(3)(a)). Detailed procedures existed for the reallocation of voting weight above that proportion (Convention Article 14(3)(b)–​(c)). Under Convention Article 15 the function of the Council was to provide for the construction, maintenance, and operation of the global maritime satellite system, including setting procurement conditions and financial policy. Detailed provision as to procurement was set out in Convention Article 20, and as to the use of inventions and technical information in Convention Article 21.28 The Council approved Earth stations (Convention Article 7(1)–​(3); Operating Agreement Article XIV), and authorized access to the INMARSAT space segment (Convention Article 7; Operating Agreement Article XV). It set utilization charges for the system, the charge for signatory members of the organization for each type of service being uniform on a worldwide basis (Convention Article 19(1) and (2)). Non-​signatory users might be charged

24   The US signatory was COMSAT and that for the UK was the then British Telecom. The USSR created a special entity to act as its signatory, Morsviaz Sputnik: see ‘Statute of the All-​Union Maritime Satellite Communications Association’ (1982) 20 ILM 1365, 1365–​70. 25   If a signatory and a group of signatories had the same total investment share, the single signatory took precedence (Convention art 13(1)(a)). If two or more signatories or group of signatories had the same total investment share and tied for the eighteenth seat on the Council then, exceptionally, all were represented on the Council (Convention art 13(1)(a)). 26   The quorum was a majority of representatives holding at least two-​t hirds of the voting shares of the Council (Convention art 14 (4)). 27   INMARSAT, Council Rules of Procedure: Basic Documents (n 16) 99–​105. 28   Disputes between INMARSAT, the Parties and Signatories were to be dealt with by arbitration (Convention art 31; Operating Agreement art XVI; Convention Annex).

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a different rate for each such service, but the charge for each service was also uniform among non-​signatory users on a worldwide basis (Convention Article 19(3)). The Council also supervised annually the allocation and redistribution of investment shares among signatories on the basis of utilization, or on the entry of withdrawal of a signatory (Operating Agreement Article V). The directorate was the executive organ of the INMARSAT (Convention Article 16). The director, appointed by the Council subject to approval by the parties, was the chief executive and legal representative of the organization (Convention Article 16(1)–​(2)). The appointment of senior members of the directorate reporting directly to him had to have Council approval, but other members were simply appointed by the director (Convention Article 16(3)–​(4)). INMARSAT established its maritime business as soon as it began operation in 1976.29 Functioning informally until its constituent agreements came into force in 1979 before its own satellites came into service, INMARSAT leased transponders on the COMSAT-​built MARISAT satellites30 and on the ESA MARECS satellites.31 The first purely INMARSAT satellite was launched in 1990. One delicate matter that had to be resolved was the use of INMARSAT terminals by non-​national ships while within the territory or the territorial sea of a state, and therefore technically subject to the sovereignty of that state in radio telecommunications. It took until 1985 to reach agreement on the point.32 Although the Convention initially contemplated a maritime service only, the Convention and Operating Agreement were subsequently amended to allow the provision of air33 and land mobile communications.34 Accordingly, in 1994 the name of the organization was changed to the International Mobile Telecommunications Satellite Organization.35 Notwithstanding, the name INMARSAT was retained as an acronym for reasons of business recognition. As business developed, the land mobile service using small terminals was increasingly seen as an attractive commercial prospect, particularly as developed within the

  Lyall (n 6) 209–​43.   MARISAT (Maritime Communications Satellite) was a maritime satellite system built for the US Navy and other customers and launched in 1976. 31   The MARECS (Maritime European Communications Satellite) satellites were a development and redesign of the ESA Maritime Orbital Test Satellite. Three were launched between 1981 and 1984. 32   International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports (16 October 1985); 1987 UKTS Misc 5, Cm 149 (ratified in 1991, but not published in the full UKTS); 1993 ATS 42; http://​w ww.imso.org/​public/​BasicDocuments. For UK procedure see Ofcom, ‘Policy Guidance Regarding Licensing for Earth Stations on Vessels (ESVs)’ (September 2010), (replacing Guidance of 2007); Ofcom, ‘Statement on the Authorisation of Earth Stations on Mobile Platforms’ (20 January 2014). 33   INMARSAT Assembly, Fourth Session (October 1985) in force 13 October 1989; (1988) 27 ILM 691–​ 94. J-​L Magdelénat, ‘Inmarsat and Satellites for Air Navigation Services’ (1987) 12 Air Law 266; W von Noorden, ‘Space Communications to Aircraft: A New Development in International Space Law’ (1987) 15 J Sp L 25, 25–​34 and 147–​60; W D von Noorden and P Dann, ‘Land Mobile Satellite Communications: A Further Development in International Space Law’ (1989) 17 J Sp L 1, 1–​12 and 103–​14. 34  INMARSAT Assembly, Sixth (Extraordinary) Session (January 1989)  International Maritime Satellite Organization: Amendments to the Convention and Operating Agreement (1991) UKTS 27, in force February 1997. 35   INMARSAT Assembly, Tenth (Extraordinary) Session (5–​9 December 1994). 29

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United States of America.36 Other commercial operators, including Globalstar and Iridium, were on the same track. After much discussion, a separate private limited company, ICO Global Communications, was set up to move ahead with this project.37 INMARSAT itself was to hold up to 15 per cent of the shares in ICO, the rest being divided between private investors and INMARSAT signatories. However, the US Federal Communications Commission (FCC) insisted on a strict separation between INMARSAT and ICO. As it happened, ICO struggled to establish itself and filed for Chapter 11 protection under the US bankruptcy laws in August 1999. Emerging from that protection in May 2000, later that year ICO was purchased and merged with Teledesic.38 ICO’s parent INMARSAT itself continued to provide its other maritime, air, and land mobile services.

7.6  INMARSAT and the New International Mobile Satellite Organization Coincident with the willingness of INMARSAT to engage in separate more commercial activities pressure grew, particularly in the US, for the privatization of both international telecommunications satellite organizations. The arguments as to INMARSAT were not identical to those in the case of INTELSAT, size and their different membership being a factor. However, both were the subjects of US legislation that threatened the loss of their ability to do business in the US unless they had been privatized. The ORBIT Act was passed in 2000.39 The privatization of INMARSAT was a complex process.40 Although INMARSAT was effectively privatized on 15 April 1999 by the provisional application of the new 36   See the spectrum allocations made at the initiative of various US companies: ‘Amendment of Parts 2, 22, and 25 of the Commission’s Rules to Allocate Spectrum for and to Establish Other Rules and Policies Pertaining to the Use of Radio Frequencies in a Land Mobile Satellite Service for the Provision of Various Common Carrier Services; Applications of Hughes Communications Mobile Satellite, Inc. [and others]’ 4 FCC Rcd 6041; 1989 FCC LEXIS 1306; 66 Rad Reg 2d (P & F) 1378. 37   The acronym ICO was derived from the phrase ‘Intermediate Circular Orbit’, the satellites being in medium Earth orbit. ‘Middle Earth’, a term already in use by the Tolkien estate, was unavailable. ICO began as INMARSAT-​P, a private company owned by the members of INMARSAT, and on whose board INMARSAT itself had two seats. For history see ‘In the Matter of Communications Satellite Corporation, Applications for Authority to Provide International Land Mobile-​Satellite Services Outside of North America via the INMARSAT System’ 8 FCC Rcd 638 (1993); FCC LEXIS 343 (1993); 71 Rad Reg 2d (P & F) 1232 and ‘In re Petition of Motorola Satellite Communications, Inc. for Declaratory Ruling Concerning Participation by COMSAT Corporation in a New INMARSAT Satellite System Designed to Provide Service to Handheld Communications Devices’ 9 FCC Rcd 7693; FCC LEXIS 5900 (1994); 76 Rad Reg 2d (P & F) 849, released; adopted 17, released 22 November 1994. 38   After many vicissitudes ICO was bought by the Pendrell Corporation, an intellectual property management company. The satellites were sold on to other telecommunications enterprises. 39  The Open-​market Reorganization for the Betterment of International Telecommunications Act 2000, Public Law No 106–​80, 114 Stat 48 (2000) (codified at 47 USC § 765f). 40   D.W Sagar and P K McCormick, ‘Inmarsat:  In the Forefront of Global Communications’ in P K McCormick and M J Mechanick (eds), The Transformation of Intergovernmental Satellite Organizations (Brill 2013) 35–​79. See also D.W Sagar, ‘The Privatisation of INMARSAT:  Special Problems’ in D W Sagar, International Organisations and Space Law (ESA SP-​4 42) 127–​46; D W Sagar, ‘The Privatisation of Inmarsat’ (1998) 41 Proc IISL 205; and D W Sagar, ‘Inmarsat since Privatisation’ in Institute of Air and Space Law, ‘Legal Framework for Satellite Telecommunications. Proceedings of the Project 2001: Workshop on Telecommunications’ Held 8–​9 June 2000 at Berlin (Institute of Air and Space Law, University of Cologne, 2000) 163–​68.

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agreements,41 the relevant amended Convention did not enter into force until 31 July 2001, binding all parties including those that had not accepted the revision up to that date.42 The operating agreement between the INMARSAT telecommunications entities was terminated, the INMARSAT Council disappeared, and a residual intergovernmental organization, the International Mobile Satellite Organization (IMSO), was charged with the oversight of INMARSAT duties as to the provision of public services, notably the safety of life at sea under the Global Maritime Distress Safety System (GMDSS). For that purpose, IMSO and INMARSAT entered into a public services agreement. However, as will be discussed below, in 2008 the Twentieth IMSO Assembly adopted extensive further amendments to the Convention, with the amendments being provisionally applied from 6 October 2008.43 On privatization, INMARSAT’s business and operational functions were transferred to INMARSAT Ventures Ltd (www.inmarsat.int), a UK company, and associated subsidiary companies. The original shareholders of the new company were the former parties to the INMARSAT agreements, holding shares in the new companies in proportion to their previous investment shares in INMARSAT. Many have sold their shares on the open market. Although the US ORBIT Act as amended had called for the dilution of the INMARSAT shareholding by public offerings of its shares, as in the case of INTELSAT, deadlines for that step were extended to take account of the market instability of the early 2000s. Eventually listed on the London Stock Exchange on 22 July 2005, a public offering of shares in the company was made in October 2005, thus complying with the requirements of the US ORBIT legislation. INMARSAT plc (previously INMARSAT Ltd) and its subsidiaries now provide telecommunications services at commercial rates to all types of mobile Earth stations through a fleet of twelve satellites (2016). These include the ship station services that were the initial focus of the original organization, services to aircraft (air-​mobile services),44 and services to mobile terrestrial carriers of Inmarsat terminals (land mobile 41   Cf M A Rogoff and B E Gauditz, ‘The Provisional Application of International Agreements’ (1987) 39 Maine L Rev 29. 42   Amended Convention of the International Mobile Satellite Organization (IMSO) (INMARSAT)) with Public Service Agreement (1999) XXIV AASL 477–​506. Amendments to the Convention and Operating Agreements on the International Mobile Satellite Organization, (24 October 2001)  (2001) UKTS 49, Cm 5274; ‘Amendments to the Convention on the International Maritime Satellite Organization (INMARSAT) and Amendments to the Operating Agreement on the International Maritime Satellite Organization (INMARSAT) (1999) UKTS 85, Cm 4553. 43   See discussion of the 2008 Convention below. For the current IMSO Convention see http://​w ww. imso.org/​public/​BasicDocuments. The site also contains a link to the ‘Amendments to the Convention on the International Mobile Satellite Organization (INMARSAT) Adopted at the 20th Session of the Assembly, 2 October 2008’. 44   A recent development has been that, subsequent to the disappearance of Malaysian Airways flight MH 370 in March 2014, a number of airlines now use the INMARSAT system to track their flights. On 10 November 2015, International Civil Aviation Organization (ICAO) Council adopted Amendment 39 to Annex 6 to the Chicago Convention on ‘Operation of Aircraft Part 1, International Commercial Air Transport’, recommending operators to track their aircraft seating more than 19 people at 15-​minute intervals if of a take-​off mass of 27,000  kg, and requiring such tracking in respect of a take-​off mass of 45,500 kg when flying over oceanic areas (effective from November 2018). On 2 March 2016, ICAO Council further adopted Amendment 40 to Annex 6 Part 1, including recommendations as to the location of aircraft in distress under the Global Aeronautical Distress Safety System (GADSS), effective 11 July 2016, applicable 1 January 2021. INMARSAT participates in GADSS, but unlike GMDSS, does not have a requirement so to do. See http://​w ww.inmarsat.com/​aviation.



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services—​mostly freight traffic).45 The Inmarsat system is now also frequently used by news media services, the portability of its transmitters and receivers being a benefit to the extent that, as the media regularly demonstrates, digital cameras can provide television-​grade coverage. In short, the privatized Inmarsat is a profitable enterprise providing telecommunication services by satellite to a number of mobile platforms or terminals. In shipping, its services allow vessels to communicate inter se and with their owners, and allow vessels to interact with all sorts of services, including the provision of news and other media services to cruise ships. Apart from its normal range of services, it should also be noted that INMARSAT is designated or recognized in several international instruments as an appropriate means of telecommunication for their purposes.46 Privatized INMARSAT also continues to provide global maritime distress and safety services, a major function of its original concept, but the only function in respect of which it remains under legal obligation. While the developments outlined above were taking place, in the meantime the UN had adopted the 1982 Convention on the Law of the Sea, in which the duties of the flag state as to safety of life prescribed by Article 94(3) include compliance with international agreements on that matter.47 Building on that generality, an International Convention on Maritime Search and Rescue adopted at Hamburg in 1979 had come into force in 1985.48 In 1988 the IMO adopted the GMDSS,49 and Chapter IV of the SOLAS was revised to require all passenger ships and all cargo ships of 300 gross tonnage and upwards to carry the equipment necessary for participation in the system.50 INMARSAT provides telecommunications for the system.51

 Inmarsat operates through five business units:  Inmarsat Maritime, Inmarsat US Government, Inmarsat Global Government, Inmarsat Enterprise, and Inmarsat Aviation. It also has a network of independent distribution partners and service providers. 46   See eg Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (5 September 2000) 2275 UNTS 46; (2001) 40 ILM 278, Annex 4.6; Antarctic Treaty Consultative Parties:  Recommendation XVIII-​1 on Tourism and Non-​governmental Activities, Kyoto 1994, Attachment A.2 (1996) 35 ILM 1178; Sec X 13 of the USSR–​US Verification Protocol to the Treaty on the Limitation of Underground Nuclear Weapon Tests (1 June 1990) 1714 UNTS 217, (1990) 29 ILM 971; Sec X 10 of the USSR–​US: ‘Verification Protocol to the Treaty on Underground Nuclear Explosions for Peaceful Purposes’ (1 June 1990) 1714 UNTS 440, (1990) 29 ILM 1026. 47   United Nations Convention on the Law of the Sea, Montego Bay 1982, 1833 UNTS 397; (1999) UKTS 81, Cm 2524. 48   International Convention on Maritime Search and Rescue (1 November 1979) in force 22 June 1985, 1405 UNTS 119; (1986) UKTS 59, Cm 12 (as subsequently amended). 49   GMDSS was phased in from 1992, becoming fully operational in 1999. 50   See SOLAS (n 14). Ships below 300 tonnes are not required to carry GMDSS compliant equipment, but may wish to do so. 51   INMARSAT GMDSS compliant equipment has a dedicated distress button (DDB), which sends a distress priority voice call or an automatic distress alert message direct to a rescue coordination centre on shore. IMO Res A/​915(22) requires all ships engaged in international service to carry GNSS receivers. Location coordinates are currently taken from either GPS or GLONASS GNSS services. GALILEO may shortly be added to the approved service list, IMO MSC.233(82) (5 December 2006) setting performance standards that GALILEO will have to meet. See generally ‘Revised Maritime Policy and Requirements for a Future Global Navigation Satellite System (GNSS)’ IMO Res A/​915(22) (29 November 2001)  http://​w ww.imo.org/​blast/​blastDataHelper.asp?data_​id=24563&filename=A915(22).pdf. 45

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GMDSS brings together various elements of search and rescue and safety of life at sea. To aid in its implementation the 1999 IMSO Convention52 set ‘safety-​of-​life’ as a primary purpose, and particularly the provision by INMARSAT of those measures in the GMDSS system for which it was well-​adapted (1999 Convention Article 3(a)). INMARSAT was to comply with the ITU Radio Regulations as these relate to GMDSS (1999 Convention Article 3(a)). Apart from these duties, the purposes of INMARSAT Ltd fell into four major groups. Like its predecessor, it was to provide telecommunications services without discrimination on the basis of nationality (1999 Convention Article 3(b)), to act exclusively for peaceful purposes (1999 Convention Article 3(c)), to seek to serve all areas where mobile satellite communications were needed, giving due consideration to the rural and remote areas of developing countries (1999 Convention Article 3(d)),53 and operating consistently with principles of fair competition and subject to relevant laws and regulations (1999 Convention Article 3(e)). That its activities served these purposes were to be, and are, monitored and supervised by IMSO, the entity residual after the changes made by the privatization. The viability of the obligations contained in Article 3(b)–​(d) of the 1999 Convention came to be questioned. The international telecommunications scene was changing quickly and new competitors were providing mobile satellite services.54 These competitors were not interested in remote and rural areas of developing countries as no immediate profitability was achievable. Nor were they particularly interested in the provision of maritime safety services. These new entrants to mobile satellite services could therefore compete with INMARSAT free of the constraints affecting it under the 1999 Convention. Given that INMARSAT had become a profit-​making enterprise in many areas other than GMDSS, the question was whether INMARSAT might wish to shrug off these constraints and free itself from unwelcome obligations. Certainly, the then public service agreement could have been terminated so as to allow INMARSAT to compete on a basis of equality. However, the 1999 arrangements did provide that such a step could not happen without IMSO consent. Apart from its ability to enforce the then public service agreement by court action, IMSO itself holds a special share in the INMARSAT company, INMARSAT Ventures Plc,55 which allowed it to block an 52   See Amended Convention of the International Mobile Satellite Organization (IMSO) (INMARSAT)) with Public Service Agreement (n 42). 53   In later discussion, this obligation was sharpened to mean particularly countries that are dependent on satellite communications or where non-​satellite telecommunications are not available. As noted further below, such requirements have been deleted from the current arrangements. 54   Within many countries radio services for land, sea, and air mobile stations have been available for many years. America was the first to move into satellite services for mobile stations, as provided by eg Aeronautical Radio Inc and the American Mobile Satellite Corporation. The FCC issued its decision on such services in 1986, in the ‘spectrum allocation order’: In the Matter of Amendment of Parts 2 and 22 of the Commission’s Rules Relative to Cellular Communications Systems; . . . to Establish Other Rules and Policies Pertaining to the Use of Radio Frequencies in a Land Mobile Satellite Service for the Provision of Various Common Carrier Services 2 FCC Rcd 1825, 61 Rad Reg 2d (P & F) 165; 2 FCC Rcd 2515; 1987 FCC LEXIS 3971; 62 Rad Reg 2d (P & F) 1329. See also the related Report and Order, FCC 86-​333, 51 Fed. Reg 37398 (22 October 1986), 61 RR 2d 165 (1986); and the Memorandum Order and Authorization (1989) 4 FCC Rcd 6041; 66 Rad Reg 2d (P & F) 1378, allowing eight companies to participate in the American Mobile Satellite Corporation. 55  Memorandum of Association of INMARSAT Ventures Plc, clause 6; Articles of Association of INMARSAT Ventures Plc, Arts 21–​25, UK Company No 03674573, as updated and altered.



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amendment to the public service obligations contained in the company’s constituent documents, or proposals that would seriously affect compliance with them. It could also block the voluntary winding up of the company. Of course, before the dilution of share ownership consequent upon the public offering of June 2005, the majority of shareholders in the INMARSAT company were parties to IMSO and likely to think the same way in both arenas. However, once INMARSAT shares became available to entrepreneurs, money-​managers, and speculators, that might no longer obtain. That said, the IMSO ‘special share’ mechanism remained conducive to the IMSO/​INMARSAT Public Services Agreement being honoured.

7.7  The International Mobile Satellite Organization 2016 History has moved on. Two developments within the realm of the IMO have been accommodated in a further revision to the IMSO Convention.56 First, any service provider willing to meet the IMO requirements for GMDSS services became able so to do. Secondly, a system for the long-​range identification and tracking of ships (LRIT) was introduced. When privatized, INMARSAT was the sole provider of GMDSS for safety of life at sea. However, in 1999 by its Resolution A.888 (21) the IMO Assembly adopted general criteria as to the provision of GMDSS services, thereby allowing the provision of GMDSS by any service provider willing to meet the new criteria.57 Subsequently, in January 2008 the 1999 Resolution was replaced by IMO Assembly Resolution A25/​Res.1001, the better to take account of emergent newer technologies, and it is that resolution to which IMSO documentation now refers.58 In the light of this development the telecommunications provider Iridium has indicated its willingness to provide GMDSS services, and this is currently being considered by the IMO.59 Secondly, states have become increasingly concerned about the worldwide spread of terrorism. The attack on the New  York World Trade Center in 2001 stoked anxiety. The possibility that a ship might carry a ‘dirty bomb’ of some description into a major harbour has been identified as a potential threat. In response, the IMO decided to establish a system for the LRIT. Accordingly the IMO revised Chapter V of the SOLAS, which deals with the safety of navigation together with the related regulations.60 Now, and since 1 January 2009, under IMO Regulation V/​19-​1 specified categories of shipping are required to carry appropriate LRIT

  A clean text of the 2008 Convention is available at http://​w ww.imso.org/​public/​BasicDocuments.  ‘Criteria for the Provision of Mobile-​Satellite Communication Systems in the Global Maritime Distress and Safety System (GMDSS)’, IMO Res A.888(21). See also In the Matter of the Establishment of Policies and Service Rules for the Mobile Satellite Service in the 2 GHz Band, 2000 15 FCC Rcd 16127; 22 Comm. Reg (P & F) 807, adopted 14 August, released 20 August 2000. 58  ‘Criteria for the Provision of Mobile-​Satellite Communication Systems in the Global Maritime Distress and Safety System (GMDSS)’, Annexed to IMO Res A 25/​Res 1001, January 2008. See link from http://​w ww.imso.org/​public/​. 59   See further below. 60   See Annex 2 to IMO Resolution MSC.202(81), adopted 19 May 2006. 56 57

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equipment.61 By it ships now report their name and position by latitude and longitude at least four times a day, together with the date and time of notification. It is also competent to report destination and speed. In addition, the shipboard equipment must be capable of automatic reporting if queried from the shore. Reporting may be by satellite or terrestrial radio communication. The system operates within defined sea areas, and compliance is enforced through the state of registry of the ship.62 The duties of ensuring the working of ship systems may be outsourced to an application service provider.63 LRIT reports are coordinated at regional data centres, and are available for GMDSS and search and rescue (SAR) purposes. Supervision of the system was deemed to require a coordinator, and the IMO Maritime Safety Committee (MSC) selected IMSO for the purpose. As a result of these two developments, it was deemed necessary again to revise the IMSO Convention. This was done in 2008, with the amendments being provisionally applied from 6 October 2008. In the revision, the opportunity was taken to eliminate some of the previous constraints of 1999, including the serving of all areas of the world and of paying particular attention to remote and rural areas of developing countries.64 The first paragraph of the preamble to the current (2008) IMSO Convention genuflects to the belief expressed back in 1961 in Part D of UNGA Resolution 1721 (XVI) that ‘communication by means of satellites should be available to the nations of the world as soon as practicable on a global and non-​discriminatory basis’.65 The second paragraph then acknowledges the Outer Space Treaty of 1967 and in particular the requirement of its Article I that ‘outer space shall be used for the benefit and in the interests of all countries’.66 The third paragraph then states the intention of the parties ‘to continue to make provision for the benefit of telecommunications users of all 61   See LRIT Services at http://​w ww.lrit-​services.com/​lrit-​regulations/​. The requirement applies to passenger ships, including high-​speed craft, cargo ships of 300 gross tonnage and above, and to self-​propelled mobile offshore drilling units (MODUs). All such ships constructed after 31 December 2008 must have such equipment in all GMDSS areas. Ships constructed earlier are required to have the equipment installed not later than their first radio installation survey after 31 December 2008 if sailing in GMDSS sea areas A1, A2, A3, and A4, as to which see further below. 62   The GMDSS sea areas are: Area A1 lies within range of shore-​based VHF coast stations (20 to 30 nautical miles); Area A2 lies within range of shore based MF coast stations (excluding A1 areas) (approximately 100–​150 nautical miles); Area A3 lies within the coverage area of Inmarsat communications satellites (excluding A1 and A2 areas—​approximately latitude 70 degrees north to latitude 70 degrees south); and Area A4 comprises the remaining sea areas outside areas A1, A2, and A3 (the polar regions). Australia and its surrounding search and rescue area are in Sea Area A3. See, http://​w ww.navcen.uscg.gov/​?pageName=Area and cf. http://​w ww..com.au/​concepts.html. 63   For the IMO documentation see http://​w ww.imo.org/​en/​OurWork/​Safety/​Navigation/​Pages/​LRIT. aspx. See also http://​w ww.imso.org/​public/​LRIT. For the system in operation see the publicly available website www.marinetraffic.com. 64   Under the heading ‘Facilitation’, art 6(2) of the 2008 Convention IMSO ‘through existing international and national mechanisms dealing with technical assistance, should seek to assist Providers in their effort to ensure that all areas, where there is a need, are provided with mobile satellite communications services, giving due consideration to the rural and remote areas.’ The impact of ‘should seek to assist’ is unclear. 65  ‘International Cooperation in the Peaceful Uses of Outer Space’, UNGA Res 1721 (XVI), 20 December 1961. 66   Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, London, Moscow and Washington, 27 January 1967, 610 UNTS 205; 1968 UKTS 10, Cmnd 3519; 18 UST 2410, TIAS 6347; (1967) 6 ILM 386; (1967) 61 AJIL 644.



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nations through the most advanced suitable space technology available, for the most efficient and economic facilities possible consistent with the most efficient and equitable use of the radio frequency spectrum and of satellite orbits’. Thereafter, the preamble narrates in summary the history of INMARSAT and the requirements of the IMO as to marine safety through GMDSS and as to LRIT. Interestingly, in deference to commercial considerations, towards the end of the preamble the parties state that their ‘desire to promote the growth of a pro-​competitive market environment’ in the current and future provision of mobile satellite communications systems services for the GMDSS. The final paragraphs acknowledge that the provision of GMDSS services requires intergovernmental oversight and that the LRIT function requires supervision and coordination. The IMSO is now established by Article 2 of the amended Convention,67 a convention to which no reservation may be made (2008 Convention Article 18(3)). As of 2016, IMSO has 102 members.68 Parties join by the normal international processes (2008 Convention Article 18(1)–​(2)). Withdrawal is by written notification given to the depositary of the Convention, the IMO (2008 Convention Article 21). Formally, IMSO consists of an Assembly and a Directorate (2008 Convention Article 8).69 Still headquartered in London,70 IMSO has legal personality (2008 Convention Article 15), and the usual privileges and immunities of an international organization.71 The Directorate (2008 Convention Article 12)  operates under a director general, who serves for a four-​year term or such other term as the Assembly determines (2008 Convention Article 12(1)) to a maximum of two terms unless the Assembly decides otherwise (2008 Convention Article 12(2)). The director general acts as the IMSO legal representative and chief executive officer of the directorate, being responsible to the Assembly (2008 Convention Article 12(3)). He or she is appointed and may be removed by the Assembly (2008 Convention Article 11(e)).72 The IMSO Assembly is composed of all the parties (2008 Convention Article 9(1) and (3)). It meets in ordinary session every two years (2008 Convention Article 9(2)). Extraordinary meetings are possible at the request of one-​t hird of the parties, or of the director general, or as its rules of procedure provide (2008 Convention Article 9(2)). The quorum for meetings of the Assembly is a simple majority of parties (2008 Convention Article 10(4)). At meetings each party has one vote (2008 Convention Article 10(1)). Parties abstaining are considered as not voting (2008 67   See also the materials cited above at n 42. The IMSO website provides information on the parties and the uptake of related agreements: http://​w ww.imso.org/​public/​MemberStates. 68   List of Parties to the Convention on the International Mobile Satellite Organization http://​w ww. imso.org/​public/​MemberStates. 69   There is also an Advisory Committee. See link at http://​w ww.imso.org/​public/​BasicDocuments. 70  Headquarters Agreement between the International Mobile Satellite Organization and the Government of the United Kingdom of Great Britain and Northern Ireland, 2106 UNTS 269; 1999 UKTS 73, Cm 4511, replacing (1980) UKTS 44, Cmnd 7917. 71   For the Revised Protocol on the Privileges and Immunities of the International Mobile Satellite Organization see link at http://​w ww.imso.org/​public/​BasicDocuments. 72   The functions of the director general are set out more fully in a set of ‘Revised Functions’ approved by the MSO Assembly at its 23rd Meeting, 15 April 2015: see link at http://​w ww.imso.org/​public/​ BasicDocuments.

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Convention Article 10(2)). Matters of substance require a two-​thirds majority of parties present and voting, decisions on procedure being taken by simple majority. The chairman decides whether a matter is procedural or substantive, but may be overruled by a two-​t hirds majority of parties present and voting (2008 Convention Article 10(2)–​(3)). The functions of the Assembly are set out in Article 11 of the 2008 Convention. It considers and reviews the purposes, general policy, and long-​term objectives of the organization, as well as the activities of GMDSS providers relative to the basic principles laid out in Article 3, to which we are coming (2008 Convention Article 11(a)–​(b)). It also takes decisions as to the role of IMSO as LRIT coordinator (2008 Convention Article 11(g)–​(h)). It can take steps to ensure observance of the basic principles of IMSO, including dealing with public services agreements with GMDSS providers (2008 Convention Article 11(b)). The Assembly decides on formal relations with other international persons whether parties or not (2008 Convention Article 11(c)). IMSO is to cooperate with the UN and other relevant international organizations (2008 Convention Article 16).73 Amendment of the Convention by the Assembly is competent on the proposal of any party (2008 Convention Article 20(1)–​(2) and Article 11(d)).74 The present IMSO Agreement has no specific provision for its termination, but presumably that also lies within the competence of the Assembly, doubtless as a matter of substance (2008 Convention Article 10(2)). The running costs of IMSO are paid by GMDSS service providers, which have entered into a public services agreement with IMSO (2008 Convention Article 13). The primary purpose of IMSO relates to supervision of GMDSS space services and is set out in Article 3 of the 2008 Convention. In addition, under Article 4(1) it has been enabled to act as LRIT coordinator. In relation to the GMDSS service, IMSO ensures that each provider of the maritime mobile satellite communications service for GMDSS does so in accordance with the IMO requirements (2008 Convention Article 3(1)). In so doing, IMSO is to act exclusively for peaceful purposes, and to conduct its oversight function in a fair and consistent manner among providers (2008 Convention Article 3(2)(a)–​(b)). Under Article 5(1), each provider of GMDSS is required to execute a public service agreement with IMSO. This , based on a reference public services agreement,75 will set out the requirements with which the provider is to comply, and includes the provision of information as to the system and its operation and arrangements as to IMSO running costs (2008 Convention Article 5(2)). GMDSS public service agreements are subject to approval by the IMSO Assembly, but that process is automatic unless one-​third of the IMSO parties object in writing (2008 Convention Article 5(4)). As of 2016, INMARSAT remains

73   IMSO cooperates with a number of international bodies. As to ICAO and the ITU see further below. There seems to be no current list of other institutions, but cf ‘Relationships with Other International Organizations’, IMSO Assembly/​ 18/​ 13, 2006, at http://​2001-​2009.state.gov/​documents/​organization/​ 70006.pdf. 74   The Assembly may not consider a proposed amendment until six months have elapsed, unless the Assembly itself by a substantive decision shortens that period to three months. During this period GMDSS Providers and Observers may provide comment (art 20). 75   For the reference public service agreement see link at http://​w ww.imso.org/​public/​BasicDocuments.



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the sole provider of GMDSS services,76 and has executed a public service agreement with IMSO.77 The IMSO coordination of LRIT services is dealt with by Articles 1(h)–​(l) and 7 of the 2008 Convention. IMSO is empowered to enter into LRIT service agreements with LRIT data centres, data exchanges, or other relevant entities, on terms and conditions negotiated by the director general subject to oversight by the Assembly (2008 Convention Article 7).78 The Assembly considers the policy and objectives of IMSO in relation to these, taking appropriate steps to monitor IMSO performance including as to the negotiation, execution, and working of the service agreements (2008 Convention Article 7(h)). Under LRIT service agreements the costs associated with IMSO responsibilities are paid by the LRIT entities (2008 Convention Article 13). Ordinary parties to the IMSO Convention are not responsible for such costs (2008 Convention Article 13(3)). Finally and briefly, we note that GMDSS and LRIT expenditures are separately accounted for within the IMSO operation (2008 Convention Article 13(1)), each category being responsible for a proportion of IMSO running costs, as well as the costs directly attributable to the service concerned. IMSO parties as such are not liable for LRIT costs (2008 Convention Article 13(3)). Further, parties as such are not liable for IMSO acts and obligations (2008 Convention Article 14). Disputes between parties, or between IMSO and parties arising under the Convention are to be negotiated. However, if agreement has not been reached within one year of a party requesting settlement, inter-​party disputes may be referred to the International Court of Justice. Other disputes may be settled by the ordinary means of international law or by arbitration under the Annex to the Convention (2008 Convention Article 17). In addition to these technical responsibilities, in relation to GMDSS and LRIT IMSO has entered into an agreement of cooperation with the International Civil Aviation Organization (ICAO) allowing a close, but non-​exclusive, consultation and cooperation in matters of common concern relating to aeronautical mobile satellite communications.79 Under this agreement, IMSO ensures that in conducting its business the INMARSAT company takes into account the relevant ICAO standards and recommended practices in line with the public services agreement and will regularly

76   It remains possible that Iridium may enter the field. See as of March 2016 http://​investor.iridium. com/​releasedetail.cfm?ReleaseID=959711. The IMO Sub-​Committee on Navigation, Communication, Search and Rescue is (2016) considering an application by the US that Iridium be used for GMDSS and will report to the MSC. IMSO has commented on the technical and operational aspects of the application. (IMO approval was given in May 2018.) 77  For the INMARSAT/​IMSO Public Service Agreement see link at http://​w ww.imso.org/​public/​ BasicDocuments. Ultimately, enforcement of this agreement rests with the English courts, after arbitral proceedings (Agreement, para 17). It may be noted that while the basic distress signal element of GMDSS is a free service, follow-​up signals in connection with a distress signal are charged at a reduced rate, reflecting INMARSAT’s new character as a privatized company providing services for profit. 78   The LRIT reference public service agreement is available through the link at http://​w ww.imso.org/​ public/​BasicDocuments. A provider of LRIT functions must be recognized for the purpose by the IMO before entering into an agreement with IMSO (see preamble B of the reference agreement). 79  Aeronautical safety is of course a major concern and purpose of ICAO. See ICAO Annex 10 ‘Aeronautical Telecommunications’, and Annex 12 ‘Search and Rescue’, both available from ICAO at www.icao.int.

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inform ICAO accordingly.80 IMSO also has an agreement with the ITU that allows it access to the ITU institutions, allowing it to have a voice in the general development of international telecommunications policy. Such, then, is the history of the development of maritime satellite telecommunications in respect of safety of life at sea. The IMO has set the requirements it considers necessary for GMDSS, and the system appears to work. The commercial interests of the privatized INMARSAT are the primary concern of INMARSAT nowadays, but governance of the area through the mutated IMSO remains important. How strong IMO influence would or could be if put to the test were INMARSAT to wish to drop out of GMDSS must be a question. The new responsibilities that IMSO has for oversight of the LRIT system are but a small addition to its work. In sum, these overall arrangements are an example of how intergovernmental organizations and profit-​driven commercial entities can interact to the benefit of all.

  Aeronautical safety was considered at meetings of the Intersessional Working Group, which considered the development of the new IMSO Convention, but related draft amendments were withdrawn, ICAO expressing no view on what it considered to be a matter for IMSO alone, while noting that aeronautical communications were a matter for ICAO SARPS and PANS. See letter from the ICO Director General to IMSO of 20 September 2003 www.state.gov/​documents/​organization/​26845.doc and s 6 of the Report of the Second Session of the IMSO Assembly Intersessional Working Group, October 2003 www. state.gov/​documents/​organization/​26843.doc. Given recent aeronautical events such as the disappearance of Malaysian Airways Flight MH370 in March 2014 and the loss of Egyptair Flight MS804 in May 2016. it may be that the ‘search and rescue’ elements of IMSO and of ICAO will draw closer together. 80

8 UN Environment Regional Seas Programme Kanako Hasegawa and Elizabeth Mrema

8.1 Introduction The United Nations Environment (UN Environment) is the leading global environmental authority that sets the global environmental agenda, promotes the coherent implementation of the environmental dimension of sustainable development within the United Nations system, and serves as an authoritative advocate for the global environment.1 The United Nations General Assembly (UNGA) created UN Environment through Resolution 2997 (XXVII) of 15 December 1972, responding to the United Nations Conference on the Human Environment, held in Stockholm, Sweden, in 1972. The resolution also established the Governing Council of UN Environment, and the Secretariat and the voluntary Environment Fund. Since then, UN Environment has been leading the global discussion for the environmental conservation and sustainable management of ecosystems for human well-​being. The development of global and regional environmental agreements is one of the most significant achievements of UN Environment in its history. UN Environment has played an essential role in formulating agreements such as the Vienna Convention for the Protection of the Ozone Layer (Vienna Convention) and its protocols, the Convention on Biological Diversity, and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. These multilateral environmental agreements (MEAs) have brought together countries under the shared vision to protect the environment for economic and social benefits. For the marine and coastal ecosystems, UN Environment has facilitated the establishment of fourteen regional seas conventions and action plans2 across the world. In addition, UN Environment assisted the establishment of the Global Programme of Action on the Protection of the Marine Environment from Land-​based Activities (GPA) as the unique global inter-​governmental mechanism to address pollution from land-​based activities. These two mechanisms, regional seas programmes and GPA, have contributed to the implementation of the United Nations Convention on the Law of the Sea (UNCLOS), especially its Part XII, entitled ‘Protection and Preservation of the Marine Environment’. UN Environment has been taking a regional approach to its work on oceans through the UN Environment Regional Seas Programme. The eighteen regional seas programmes across the world provide regional governance mechanisms for the   http://​web.unep.org/​about/​who-​we-​are/​overview.   This term is interchangeably used with ‘regional seas programmes’.

1 2

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conservation and sustainable management of the marine and coastal ecosystems. These regional mechanisms function within the global ocean governance framework articulated by UNCLOS. The regional approach is considered to be effective in applying the ecosystem approach. By taking a regional approach, it becomes possible to take ecosystems as an indivisible whole, shared by multiple countries. Through regional coordination, neighbouring countries can implement coordinated actions for the management of shared water bodies in order to continue receiving ecosystem goods and services. The work of the UN Environment Regional Seas Programme has demonstrated the importance and relevance of a regional approach in the context of international ocean governance. To achieve the 2030 Agenda for Sustainable Development,3 the existing regional ocean governance mechanisms such as the regional seas programme4 can be used to support member states in implementing and reviewing ocean-​related sustainable development goals (SDGs). Ongoing cooperation initiatives between the regional seas programmes and regional fisheries bodies facilitate regional mechanisms to manage the oceans and address the ocean-​related SDGs holistically. This contribution starts with the introduction to the mandates of UN Environment on oceans and seas (section 8.2). Then it provides an overview of the UN Environment Regional Seas Programme (section 8.3) to demonstrate the importance of regional ocean governance mechanisms for the sustainable management of the oceans and seas (section 8.4). It provides several examples of activities that UN Environment conducts with the regional seas programmes to develop integrated regional policies and strategies (section 8.5). These case studies show the role of regional seas programmes in catalysing integrated ocean management. The activities related to the conservation of marine biological diversity of the areas beyond national jurisdiction are also presented (section 8.6). The contribution concludes with the reflection on challenges that the UN Environment Regional Seas Programme faces. The programme needs review in terms of financial, institutional, and substantive aspects to support participating countries in achieving the Agenda 2030. UN Environment, as the coordinator of the programme, is renewing its commitment to strengthen the programme to realize sustainable development based on healthy oceans and seas.

8.2  Mandate of UN Environment on Oceans and Seas At the onset of UN Environment, the Governing Council of UN Environment identified oceans as one of the priority areas for its work. Decision II paragraph 2 of the First Governing Council meeting in 1973 listed the protection of the marine environment as one of the fourteen Particular Policy Objectives.5

  A/​R ES/​70/​1 Transforming out world: the 2030 Agenda for Sustainable Development.   See UN Environment (2016) Regional Oceans Governance:  Making Regional Seas Programmes, Regional Fishery Bodies and Large Marine Ecosystem Mechanisms Work Better Together. 5   Decision II para 2 ‘To detect and prevent serious threats to the health of the oceans through controlling both ocean-​based and land-​based sources of pollution, and to assure the continuing vitality of marine stocks’. 3 4



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In addition, the First Governing Council meeting formulated Decision III6 paragraph 12(e) ‘Oceans’ and defined the initial task of UN Environment on oceans: 12. Further requests the executive director to perform the following tasks: (e) Oceans

(i) To carry out objective assessments of problems affecting the marine environment and its living resources in specific bodies of water; (ii) To prepare a survey of the activities of international and regional organizations dealing with conservation and management of the living resources of the oceans; (iii) To assist nations in identifying and controlling land-​based sources of pollution, particularly those which reach the oceans through rivers; (iv) To stimulate international and regional assessments for the control of all forms of pollution of the marine environment, and especially agreements relating to particular bodies of water;  (v) To urge the Inter-​Governmental Maritime Consultative Organization to set a time-​limit for the complete prohibition of international oil discharge in the seas, as well as to seek measures to minimize the probability of accidental discharges; (vi) To develop a programme for the monitoring of marine pollution and its effects on marine ecosystems, paying particular attention to the special problems of specific bodies of water including some semi-​enclosed seas, if the nations concerned so agree; (vii) To urge the International Whaling Commission to adopt a 10-​year moratorium on commercial whaling; . . .







Paragraph (vi) led to the development of the UN Environment Regional Seas Programme (see Chapter  3). Subsequently, through the Second Session of the Governing Council (GC2),7 Decision 8(II)I ‘Priority Subject Areas of the Programme, 4. Oceans’, UN Environment member states8 agreed on the focused areas:

(b) Priority should be given to regional activities, with the possible establishment of programme activity centres in the Mediterranean. The importance of activities in the Caribbean, the Baltic, the Persian Gulf, the Indonesian and Philippines archipelagos, and parts of the Atlantic and Pacific was stressed. (c) The Programme should encourage and support the preparation of regional agreements or conventions on the protection of specific bodies of water from pollution, particularly from land-​based sources. High priority should be given to supporting activities to protect living resources and prevent pollution in the Mediterranean. (d) The survey of living marine resources called for by the General Assembly in its resolution 3133 (XXVIII) should be begun immediately by the Food





  Decision III Programme Priorities for Action by the united Nations Environment Programme.   The Second Session of the Governing Council of UN Environment was held from 11 to 22 March 1974. 8   The UNGA elected fifty-eight members for four-​year terms. 6 7

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Kanako Hasegawa and Elizabeth Mrema and Agriculture Organizations of the United Nations on behalf of the Programme. (e) The Programme should make a constructive contribution to the third United Nations Conference on the Law of the Sea. The Conference is urged to continue to attach importance to its work relating to the preservation of the marine environment taking into account, in particular, the contents of General Assembly resolution 3133 (XXVII) on the protection of the marine environment and the positions of Member States as expressed during the debate and on the adoption of that resolution of the General Assembly. (f) The Programme should promote the study, conservation and wise management of living resource, including whales and other marine mammals. Research should also be encouraged on the effects of climate on the oceans and their resources, on the effects of pollution on living organisms and on ocean dynamics as a factor in pollution transport.





The following Governing Council meetings repeatedly endorsed a regional approach to address the degradation of the oceans and seas, and requested support for the preparation of the regional agreements, including action plans. Based on these requests made through the UN Environment Governing Council and subsequent United Nations Environment Assembly,9 fourteen regional seas conventions and action plans have been established under the auspices of UN Environment.10 These regional agreements have made a significant contribution to the implementation of the UNCLOS, especially regarding the implementation of its Part XII. The role of the regional seas programme has been recognized by the UNGA and in its resolutions.11 The Programme is particularly relevant and in fact practically implements to Article 197 which stipulates that ‘States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features’. From 1973, the UN Environment Governing Council and the United Nations Environment Assembly repeatedly adopted decisions and resolutions related to the oceans, showing strong commitments in the work of UN Environment for the marine and coastal environments. Over sixty-eight Governing Council decisions related to the Regional Seas Programme have been adopted from 1973 to 2016.12 Most recently, at the Second Session of the United Nations Environment Assembly (UNEA-​2) of May

  At the United Nations Conference on Sustainable Development (Rio +20) in 2012, Member States upgraded UN Environment and replace the UN Environment Governing Council with the United Nations Environment Assembly with the universal membership of the UN member states. This allowed wider participation of UN member states in decision-​making on the global environment agenda. 10 11   See Table 1.   For example, Resolution 69/​245 of 2015 para 177. 12   See Elizabeth Maruma Mrema, ‘Regional Seas Programme: The Role Played by UN Environment in Its Development and Governance’ in David Attard and others (eds), The IMLI Manual of International Maritime Law, vol III (Marine Environmental Law and Maritime Security Law, Oxford University Press 2016) ch 10E. 9



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2016, member states13 adopted three resolutions that are particularly relevant to the sustainable management of the oceans and seas: (i) Resolution 2/​10 Oceans and seas; (ii) Resolution 2/​11 Marine plastic litter and microplastics; and (iii) 2/​12 Sustainable coral reefs management. In addition, Resolution 2/​18 Relationship between the United Nations Environment Programme and the multilateral environmental agreements for which it provides the secretariats, is relevant to the UN Environment-​administered Regional Seas Conventions. Through Resolution 2/​10 paragraph 1, member states requested UN Environment to incorporate the ocean-​related aspects of the Agenda 2030 for Sustainable Development and the SDGs and the Strategic Plan for Biodiversity (2011–​2020) in the activities of UN Environment. Not only SDG No 1414 but also other goals and targets such as Target 2.4 on Food Security are relevant to the sustainable management of oceans (Annex 2). Based on the request, UN Environment is starting to incorporate these global targets into its activities.

8.3  UN Environment Regional Seas Programme 8.3.1 Overview The UN Environment Regional Seas Programme aims to address the accelerating degradation of the oceans and seas through the cooperation of neighbouring countries that share common bodies of water. Building upon about forty-​five years’ work, the UN Environment regional seas programme currently involves eighteen regional seas programmes across the world (Annex 3), of which fourteen regional seas programmes were established under the auspices of UN Environment (Table 8.1). These fourteen regional seas programmes received initial support and continue receiving technical assistance from UN Environment. The fourteen regions represent unique social, economic and environmental characteristics. Currently more than 143 countries participate in the UN Environment regional seas programme.15 Although the other four regional seas programmes were independently established, they engage in information sharing with other regional seas programmes under the framework of the UN Environment regional seas programme. All of the eighteen regional seas programmes participate in the annual global meetings of the regional seas conventions and action plans for the purpose of coordination and information and expertise sharing. UN Environment coordinates the regional seas programme and convenes the annual global meetings of regional seas conventions and action plans. Since its first meeting in 1998 in The Hague, the Netherlands, eighteen annual meetings have been organized to date (as of 2017, nineteen meetings as of 2018).16 One of the functions of these coordination meeting has been to formulate common regional seas strategic directions.   UN member states.  ‘Conserve and sustainably use the oceans, seas and marine resources for sustainable development.’15  Some countries have not ratified governing instruments of the Regional Seas programmes but participate in their activities and meetings. 16   http://​w ww.unep.org/​regionalseas/​. 13 14

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Table 8.1  The regional seas programmes established under the auspices of UN Environment and those independent of UN Environment The UN Environment regional seas programme (18 regional seas programmes) 14 regional seas programmes established under the auspices of UN Environment

4 regional seas programmes established independent of UN Environment

Abidjan Convention (West, Central and South Africa Region) Antigua Convention (North East Pacific) Barcelona Convention (Mediterranean) Bucharest Convention (Black Sea) Cartagena Convention (Caribbean) East Asian Seas Action Plan (East Asian Seas) Jeddah Convention (Red Sea and Gulf of Aden) Kuwait Convention (ROPME Sea Area) CPPS and Lima Convention (South East Pacific) Nairobi Convention (East Africa region) SPREP and Noumea Convention (Pacific region) Northwest Pacific Action Plan (Northwest Pacific) South Asian Seas Action Plan (South Asian Seas) Teheran Convention (Caspian Sea)

CAMLR Convention (Antarctic) Helsinki Convention (Baltic Sea) OSPAR Convention (Northeast Atlantic) Protection of the Arctic Marine Environment (Arctic)

8.3.2 Regional seas strategic directions While each regional seas programme has its own regional strategies, the regional seas programmes collectively formulate the regional seas strategic directions (RSSDs). By setting these common strategic directions, the UN Environment regional seas programme aims to provide coherent and coordinated support to member states while respecting regional diversity and uniqueness. The first RSSD was developed for the period between 2004 and 2007 based on the UN Environment Governing Council Resolution 22/​2 Water III ‘Regional Seas Programme A’. Regional seas strategies for sustainable development. Through the resolution, UN Environment member states requested the executive director to incorporate strategic elements in the regional seas programme of work: 1. Requests the Executive Director to encourage and support regional seas conventions and action plans to incorporate the following strategic elements in their programmes of work and bring those elements to the attention of their respective Member States through their governing bodies and other relevant forums: (a) Use of regional seas conventions and action plans as an instrument for sustainable development, such as the Mediterranean Commission on Sustainable Development of the Barcelona Convention on the Protection of the Marine Environment and the Coastal Region of the Mediterranean; (b) Enhance countries’ ‘ownership’ over their respective regional seas conventions and action plans;



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(c) Increase participation of civil society and industry with the regional seas conventions and action plans in the development and implementation of programmes and partnerships; (d) Achieve financial sustainability; (e) Utilize the regional seas conventions and action plans as a platform for the regional implementation of multilateral environmental agreements and global programmes and initiatives; (f) Strengthen horizontal cooperation as well as possible twinning arrangements between regional seas conventions and action plans; (g) Strengthen cooperation between existing regional seas programmes and initiatives within or outside the United Nations system, seeking synergies among them, as appropriate; (h) Strengthen links, cooperation and coordination with such international organizations as the International Maritime Organization, the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization, the Food and Agriculture Organization of the United Nations and the Convention on Biological Diversity, and support cooperation among multilateral environmental agreements; (i) Strengthen monitoring and assessment activities and ensure that regional seas secretariats are fully involved in the development of the process of establishment of the Global Assessment of the State of the Marine Environment and of the Global International Waters Assessment; (j) Continue the administrative support from the United Nations Environment Programme headquarters to regional seas administration; (k) Provide legal support upon request; (l) Develop outreach, information and public awareness; (m) Contribute to the Programme of Action for the Sustainable Development of Small Island Developing States;

Based on the request, the first RSSD was formulated. The vision was clearly stated as the following: The strategic directions  . . .  aims at strengthening the Regional Seas Programme at global level. They are intended to complement the implementation of the programme of work of the individual Regional Seas, as well as the decisions of the governing bodies of the Regional Seas Conventions and Action Programmes. They provide an opportunity to improve efficiency, individually and collectively, in the RSPs, increase cooperation, and incorporate new elements in future programme of work.17

17

 See http://​w ww.unep.org/​regionalseas/​about/​strategy/​pdfs/​Strategy_​180105_​English.pdf.

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The subsequent two sets of the RSSDs (2008–​2012 and 2013–​2016) were created to strengthen the previous strategic directions (Annex 4). While the progress and the level of implementation of these RSSDs are not well documented, these strategies seem to have helped the regional seas programmes to integrate the ecosystem approach, moving away from the traditional pollution-​focused programme. The ecosystem approach has always been promoted as a Strategic Directions18 of the UN Environment regional seas programme and several regions have developed their regional strategies based on this approach (see Chapter 5). At the 17th Global Meeting of the regional seas Conventions and action plans, the regional seas programme adopted the new RSSDs (2017–​2020) in line with the Agenda 2030 for Sustainable Development. The new RSSDs have four key thematic areas: (i) pollution; (ii) climate change; (iii) extraction of living and non-​living resource; and (iv) governance. The two core goals of the Regional Seas Conventions and action plans across four key thematic strategies are to:

• Promote and facilitate ratification, adoption and implementation of Regional Seas Conventions, Action Plans and Protocols, working in concert with other Regional Seas Organizations. • Strategically work in collaboration with international and regional organizations, including Multilateral Environmental Agreements (MEAs), Regional Fisheries Management Organizations (RFMOs) and other relevant stakeholders. The Regional Seas Conventions and Action Plans will therefore aim to

1. Reduce marine pollution of all kinds in line with the SDG Goal 14.1. 2. Create increased resilience of people, marine and coastal ecosystems, and their health and productivity, in line with the SDG Goal 13 and decisions made at the UNFCCC COP21. 3. Develop integrated, ecosystem-​based regional ocean policies and strategies for sustainable use of marine and coastal resources, paying close attention to blue growth. 4. Enhance effectiveness of Regional Seas Conventions and Action Plans as regional platforms for supporting integrated ocean policies and management.19



Pursuant to paragraph 10 of Resolution 2/​10 of the United Nations Environment Assembly, UN Environment will communicate the RSSDs (2017–​ 2020) to the governing bodies of the regional seas conventions and action plans. Each regional seas programme will report the progress of implementation of the RSSD to UN Environment in preparation to the annual global meetings.20

  See Annex 4. More detailed discussion is available in UNEP/​WBRS.17/​2.   UNEP/​WBRS.18/​INF8 Regional Seas Strategic Directions (2017–​2020). 20   As agreed at the 18th Global Meeting of Regional Seas Conventions and Action Plans. 18

19



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8.3.3  Action plans and conventions The process of establishing regional sea programmes under the auspices of UN Environment mostly started with the development of action plans, which outline substance and strategy of regional cooperation for the protection of marine environment. The action plans are tailored to specific regional socioeconomic, political, and ecological situations but they usually have the following similar components: environmental assessment, environmental management, environment legislation, institutional arrangements, and financial arrangement as a common methodology was used.21 In most of the regions, the action plans are underpinned by legally binding conventions. In other words, most of the regional seas programmes have both an action plan and a convention. The convention sets out a general legal framework for cooperation, clarifying what contracting parties need to do in order to implement the action plan. In this way, conventions clearly express political will and commitments of the participating countries. In addition, most regional seas conventions have protocols on specific issues such as specially protected areas, land-​based sources of pollutions and marine pollution emergencies (Annex 3). In four regions out of the eighteen regional seas programmes, no legally binding instruments have been adopted to support their action plans (Arctic,22 East Asian Seas, North-​west Pacific, and South Asian Seas). In other words, these four regions only have action plans, setting out the areas of cooperation for the respective regional seas programmes. The action plans are the heart of the regional seas programmes, clarifying what participating countries would like to achieve through the cooperation framework for the sustainable management of the shared marine ecosystems. Many of the action plans were, however, developed in 1970s to 1980s and have strong focus on pollution based on the early decisions by the UN Environment Governing Council (see section 2). Many regional seas programmes still continue to use these original action plans as their core instruments but they may not truly reflect current regional priorities. Furthermore, many regional seas programmes have developed various thematic regional action plans such as the action plans for pollution from land-​based activities, and action plans on marine litter. Several regions also developed the Strategic Action Programmes under the framework of the Large Marine Ecosystems projects funded by the Global Environment Facility (GEF). The relationship between the regional seas action plans and other action plans is not necessarily clear in some regions.

21   A common methodology was used to develop action plans as detailed in UN Environment (1982) Guideline and principles for the preparation and implementation of comprehensive action plans for the protection and development of marine coastal areas of regional seas. For a more detailed discussion, see Mrema (n 12). 22   PAME developed an action plan called ‘Arctic Marine Strategic Plan’, which is an Action Plan for the Arctic Council.

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8.3.4 Institutional arrangements (a) Decision-​making bodies Regardless of the existence of legally  ​binding instruments,23 the regional seas programmes are inter-​ governmental mechanisms led by their respective participating countries. Therefore, Conferences of Parties (COPs) for the conventions and Intergovernmental Meetings (IGMs) for those without conventions serve as the platforms for the member countries24 to discuss, review, and monitor the implementation of their convention or action plans and take decisions on their direction under the regional seas programmes. These decision-​making bodies regularly meet and decide on their regional strategies, programmes of work, and budget. In most of the regional seas programmes, national focal points designated by the participating countries represent the countries and deal with the matters relevant to the implementation of the agreements and decisions during inter-sessional periods. The focal points maintain regular communication with the secretariats.

(b) Secretariats Most of the regional seas programmes have established secretariats25 to provide secretariat services to the decision-​making bodies. The secretariats are called regional coordination units (RCUs). In some cases, regional bodies serve as the secretariats for the regional seas programmes in addition to other functions. For example, in the South Pacific Regional Environment Programme (SPREP) serves as the secretariat of the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Noumea Convention), a regional seas convention, while it also provides secretariat services for the Convention on Conservation of Nature in the South Pacific (Apia Convention). UN Environment hosts the secretariats and provides administrative support to the seven regional seas programmes based on the requests made to the executive director through the Governing Council or the United Nations Environment Assembly (see Table 8.2). Under most of the regional seas programmes, respective participating countries have established trust funds, which are replenished by the participating countries. The use of trust funds is subject to the decisions of their respective decision-​making governing bodies.

(c) Regional activity centres The regional seas programmes are developed to be action-​oriented programmes. While they conduct normative work to establish regional strategies and relevant legal instruments such as protocols,26 they do also implement projects to realize their   Action plans are considered to be non-​legally binding instruments.   For regional seas programmers with a convention, member countries are called contracting parties. For those without a convention, they are often called participating countries. 25   Not all the regional seas programmes have their own secretariats. 26   Action plans often have a section related to environment legislation. 23

24



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Table 8.2  UN environment-​administered and non-​U N environment-​administered regional seas programmes The UN environment regional seas programme (18 regional seas programmes) 7 regional seas administered by UN environment 11 non-​U N environment-​administered regional seas Abidjan Convention (Western Africa Region) Barcelona Convention (Mediterranean) Cartagena Convention (Caribbean) East Asian Seas Action Plan (East Asian Seas) Nairobi Convention (East Africa Region) Northwest Pacific Action Plan (Northwest Pacific) Teheran Convention (Caspian Sea)

Antigua Convention (North East Pacific) Bucharest Convention (Black Sea) Helsinki Convention (Baltic Sea) Jeddah Convention (Red Sea and Gulf of Aden) Kuwait Convention (ROPME Sea Area) CPPS and Lima Convention (South East Pacific) SPREP and Noumea Convention (Pacific region) OSPAR Convention (Northeast Atlantic) Protection of the Arctic Marine Environment (Arctic) South Asian Seas Action Plan (South Asian Seas) CAMLR Convention (Antarctic)

respective programmes of work. These programmes of work are developed to achieve their respective action plans and regional objectives.27 To facilitate the implementation of specific parts of regional action plans or protocols, several regional seas programmes established regional activity centres (RACs) (Table 8.3). The RACs are crucial implementation arms for the regional seas action plans at the regional and national levels. These centres carry out specific activities such as emergency responses to oil spills, and report to their regional coordination units. The secretariats of the action plans and/​or the conventions function as the regional coordination units. The RACs are established and guided by the decisions from the conference of parties or inter-​governmental meetings. In most cases, these centres are financially supported by the participating countries of the regional seas programme, especially the host countries of the RACs. Currently, five regions (MAP, CEP, NOWPAP, ROPME, and PERSGA) have RACs. It should be noted that each regional seas programme has its own institutional arrangement suitable for its region. The other nine regional seas programmes established under the auspices of UN Environment do not follow this institutional arrangement characterized by RCUs and RACs.28 The four independently  ​established regional seas programmes (Table 8.1) also have their specific institutional arrangements. These differences in institutional arrangement mark the diversity of the regional seas programmes.

27   Some regional seas programmes have strategic documents other than action plans and these strategic documents set regional objectives. 28   These programmes have their own instructional arrangement. For example, the OSPAR Commission has five thematic committees under the Commission.

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Table 8.3  Regional activities centres (RACs) Region

Mediterranean

Caribbean

Northwest Pacific

ROPME Sea Area

Red Sea and Gulf of Aden

Emergency response

The Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea (REMPEC)

The Regional Marine Pollution Emergency, Information and Training Centre—​ Caribe (RAC-​ REMPEITC Caribe)

Marine Environmental Emergency Preparedness and Response Regional Activity Centre (MERRAC)

Marine Emergency Mutual Aid Centre (MEMAC)

Emergency Mutual Aid in the Red Sea and Gulf of Aden (EMARSGA)

Protected areas

The Specially Protected Areas Regional Activity Centre (SPA/​R AC)

The Regional Activity Centre for the Protocol Concerning Specially Protected Areas and Wildlife for the Wider Caribbean Region (SPAW-​R AC)

Information The Regional management Activity Centre for Information and Communication (INFO/​R AC) Other areas

Regional Network for Protected Areas in the Red Seas and Gulf of Aden established under the Regional Protocol Data and Information Network Regional Activity Centre (DINRAC)

PERSGA Regional Information and Data Centre

Regional Environmental Monitoring Programme (REMP), based in PERSGA

The Plan Bleu Regional Activity Centre (PB/​R AC)

The Regional Activity Center for the Protocol concerning Pollution from Land-​based Sources and Activities (Cimab)

Special Monitoring and Coastal Environment Assessment Regional Activity Centre (CEARAC)

The Regional Activity Centre for Sustainable Consumption and Production (SCP/​ RAC)

Institute of Marine Affairs (IMA)

Pollution Monitoring Regional Activity Centre (POMRAC)

Priority Actions Programme Regional Activity Centre (PAP/​R AC)



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8.4  Regional Ocean Governance 8.4.1 Overview UN Environment does not have a working definition of ocean governance. This chapter, therefore, follows the definition of ocean governance set by the study:  ‘the international process in which the close cooperation by States, inter-​governmental institutions and other actors aims at achieving the desired objectives laid down in the 1982 UNCLOS at a local, national, regional, and global level’. Following the definition, regional ocean governance refers to the regional application of ocean governance for the management of the oceans, seas, and their resources. Historically, UN Environment has taken a regional approach to the management of oceans. This approach was in line with recommendation 92(b) of the United Nations Conference on the Human Environment in Stockholm in 1972, which recommended countries to ‘concert and co-​ordinate their actions regionally and where appropriate on a wider international basis’. The UN Environment Governing Council has also identified that the regional approach is one of the most effective means to protect the global marine environment.29 The regional level is an effective scale to apply the ecosystem approach to the marine and coastal ecosystems. The Convention on Biological Diversity describes that: [a]‌n ecosystem approach is based on the application of appropriate scientific methodologies focused on levels of biological organization, which encompass the essential structure, processes, functions and interactions among organisms and their environment. It recognizes that humans, with their cultural diversity, are an integral component of many ecosystems.30

The ecosystem approach is internationally recognized as the basis for sustainable management of the marine and coastal environment. The ecosystem approach is essentially a place-​based approach and applied to a given ecosystem or a geographical area. This approach considers each human activity within the context of all other activities and their interactions. Thus, different sectoral activities within the given ecosystem need to be considered. The approach encourages cross-​sectoral cooperation instead of the traditional sectoral approach.31 For marine and coastal ecosystems, a regional approach is suitable for the implementation of the ecosystem approach, given the nature of the marine environment. Managing the Mediterranean Sea based on the ecosystem approach, for example, would allow taking the Mediterranean Sea as an indivisible whole. The UN Environment regional seas programme has demonstrated that the definition of ecosystems at the regional scale is useful so that the countries concerned can cooperate in managing the shared ecosystems, rather than   Regional Seas Study Report No 1, entitled Guidelines and principles for the preparation and implementation of comprehensive action plans for the protection and development of marine and coastal areas of regional seas. 30   Secretariat of the Convention on Biological Diversity, ‘The Ecosystem Approach (CBD Guidelines)’ (Secretariat of the Convention on Biological Diversity 2004). 31   UN Environment, ‘Taking Steps Toward Marine and Coastal Ecosystem-​Based Management—​An Introductory Guide’ (2013). 29

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taking uncoordinated national actions for the same ecosystems. This approach leads to harmonized and coordinated management of the shared ecosystems. Regional ocean governance is considered to have three main mechanisms: (i) regional seas programmes; (ii) regional fisheries bodies; and (iii) large marine ecosystems (LMEs).32 While other regional mechanisms such as regional economic organizations have mandates in the management of oceans, these three mechanisms have been the main vehicles for the management of the marine environment. The regional seas programmes and regional fisheries bodies are inter-​governmental mechanisms. On the other hand, LME mechanisms are normally created on a project basis. Occasionally, governance mechanisms can be developed by LME projects.33 While LMEs have largely contributed to scientific assessments, capacity building, and demonstrations on the ground, it is recommended that creation of new regional governance mechanisms be avoided and be operated through the existing regional governance frameworks.34 By doing so, further fragmentation of ocean governance at the regional level can be avoided. Ocean governance is often criticized as being ‘fragmented’ due to the existence of many sectoral bodies focusing on sectoral benefits. To achieve more sustainable management of the oceans and seas, as envisioned by the Agenda 2030, it is recommended that more integrated cross-​sectoral approaches be taken at all scales of ocean governance.

8.4.2 Regional seas programmes and regional fisheries bodies The regional fisheries bodies also take a regional approach based on the characteristics of marine ecosystems. These bodies were established under the auspices of the Food and Agricultural Organization of the United Nations (FAO). Under the mechanism, concerned countries sharing common bodies of water coordinate their actions towards the conservation, management, and/​or development of fisheries.35 As the implementation of the ecosystem approach requires cooperation across sectors, the regional seas programmes have started fostering cooperation with the regional fisheries bodies. Inspired by the successful cooperation between the OSPAR Commission and the North-​East Atlantic Fisheries Commission (NEAFC), and the Barcelona Convention and the General Fisheries Commission for the Mediterranean (GFCM), various regions have already taken steps to develop such inter-​sectoral regional cooperation. In the East Africa region, the Nairobi Convention and the Southwest Indian Ocean Fisheries Commission (SWIOFC) agreed to prepare a memorandum of understanding (MOU) after identifying possible areas of common interests for further coordination and cooperation.36 The Wider Caribbean is taking a similar pathway to develop an

32   See UN Environment, ‘Regional Oceans Governance: Making Regional Seas Programmes, Regional Fishery Bodies and Large Marine Ecosystem Mechanisms Work Better Together’ (2016). 33 34   See eg the Benguela Current Commission.   See UN Environment (n 32). 35   http://​w ww.fao.org/​fishery/​topic/​16800/​en. 36  See http://​w ww.unep.org/​ecosystemmanagement/​water/​regionalseas40/​Meetings/​Collaborationbet weenRSandRFBinSWIO/​tabid/​1061071/​Default.aspx; http://​w ww.unep.org/​ecosystemmanagement/​water/​regionalseas40/​Meetings/​Collaborationbetween RSandRFBinSWIO/​tabid/​1061071/​Default.aspx.



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MOU between the Cartagena Convention and the West-​Central Atlantic Fisheries Commission (WECAFC). In the ROPME Sea Area, the Regional Organization for the Protection of Marine Environment (ROPME) decided to work with the Regional Commission for Fisheries (RECOFI) for the development of the Regional Ecosystem-​ Based Management (EBM) Strategy for the ROPME Sea Area.37 In the Red Sea and Gulf of Aden, a new regional Protocol Concerning Cooperation in Management of Fisheries and Aquaculture was developed under the Jeddah Convention, which facilitates effective coordination between environment and fisheries sector for implementation of ecosystem approach. In the West, Central, and South Africa region, there are various regional fisheries bodies such as the Ministerial Conference on Fisheries Cooperation among African States Bordering the Atlantic Oceans (COMHAFAT), the Fishery Committee for the Eastern Central Atlantic (CECAF), and the Regional Fisheries Committee for the Gulf of Guinea (COREP). Dialogues have been made in order to enhance the coordination between the Abidjan Convention and the regional fisheries bodies.38 These regional dialogues are catalysing more coordinated support to the countries through the regional mechanisms. While the ecosystem approach to the fisheries or the ecosystem-​based fisheries management is an important component of the application of the ecosystem approach, it is increasingly becoming clear that a cross-​sectoral approach is necessary in securing future food security, supported by healthy and resilient marine ecosystems (Table 8.4). In  2016, the Secretariat of the Convention of Biological Diversity in partnership with UN Environment and the FAO organized the first global dialogue between the regional seas programmes and regional fisheries bodies. The workshop entitled ‘Sustainable Ocean Initiative Global Dialogue with Regional Seas Organizations and Regional Fisheries Bodies on Accelerating Progress Towards the Aichi Biodiversity Targets’ recommended continuation of this type of global dialogue for the sustainable management of oceans and their resources.39 It is expected that this partnership will allow more coordinated regional support to member states for their implementation of the ocean-​related SDGs.

8.4.3 Regional seas programmes and large marine ecosystems The regional seas programmes also coordinate and cooperate with the LME mechanism. Under the framework of the Barcelona Convention, for example, projects based on the LME approach greatly assisted the contracting parties in implementing the Barcelona Convention and its protocols. The Secretariat of the Barcelona Convention

37   Under art II of the Kuwait Convention, the ROPME Sea Area (RSA) is defined as extending between the following geographic latitudes and longitudes, respectively:  16°39’N, 53°3’30’E; 16°00’N, 53°25’E; 17°00’N, 56°30’E; 20°30’N, 60°00’E; 25°04’N, 61°25’E. 38  See http://​w ww.unep.org/​ecosystemmanagement/​water/​regionalseas40/​Meetings/​AbidjanScoping Meeting/​tabid/​133579/​Default.aspx. 39  The meeting outcome, entitled Seoul Outcome is available at https://​w ww.cbd.int/​doc/​ ?meeting=SOIOM-​2016-​01.

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Table 8.4  Ongoing dialogues for the cooperation between regional seas and regional fisheries bodies Region

Regional seas

Regional fisheries bodies

East Africa

Nairobi Convention

Southwest Indian Ocean Fisheries Commission (SWIOFC)

Caribbean

Cartagena Convention

Western Central Atlantic Fishery Commission (WECAFC)

North-​East Atlantic

OSPAR Convention

North-​East Atlantic Fisheries Commission (NEAFC)

Mediterranean

Barcelona Convention

General Fisheries Commission for the Mediterranean (GFCM)

Black Sea

Bucharest Convention

General Fisheries Commission for the Mediterranean (GFCM)

ROPME Sea Area

Kuwait Convention

Regional Commission for Fisheries (RECOFI)

West, Central, and South Africa

Abidjan Convention

Red Sea and Gulf of Aden

Jeddah Convention1

Fisheries Cooperation among African States Bordering the Atlantic Oceans (COMHAFAT), Fishery Committee for the Eastern Central Atlantic (CECAF), Regional Fisheries Committee for the Gulf of Guinea (COREP) Fishery Committee of the West Central Gulf of Guinea (FCWC) South-​East Atlantic Fisheries Organization (SEAFO) Sub-​regional Commission on Fisheries (SRFC) Regional Protocol Concerning Cooperation in Management of Fisheries and Aquaculture

PERSGA also serves as a regional fisheries body and thus a protocol concerning fisheries was developed under the Jeddah Convention. 1

was the executive agency of the MedPartnership project and the project supported the implementation of the instruments such as the ICZM Protocol.40 Other regional seas programmes have also served as executing agencies for LME projects and coordinated with the mechanism. For example, the Secretariat of the Abidjan Convention is an executive agency for the Canary Current Large Marine Ecosystem (CCLME) project. The project has a component to ‘develop a sustainable legal framework based on the combined foundation of Sub-​regional Fisheries Commission (SRFC) and the Abidjan Convention’. In this way, the project facilitates cooperation between the environment and fisheries sectors.41 Regional fisheries bodies also coordinate and cooperate with LMEs but this is beyond the scope of this chapter.42 These LME projects have significant benefits and are important scheme to support participating countries of the regional seas programmes in implementing their legal instruments. However, it is recommended that the existing governance mechanisms

  http://​w ww.themedpartnership.org/​.   For further discussion on the cooperation between regional seas programmes and LMEs, see UN Environment (n 32). 42   For detailed discussion on the cooperation between Regional Fisheries Bodies and LMEs, see ibid. 40 41



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such as the regional seas programmes and the regional fisheries bodies be used to conduct project activities whenever possible.43 Establishment of new governance mechanisms on a project basis will lead to further fragmentation of the ocean governance at the regional level and should thus be avoided. By using the established governance mechanism, projects can also benefit from the long-​term institutional sustainability.

8.4.4 Regional seas and MEAs Many MEAs are relevant to the conservation and sustainable management of the marine and coastal ecosystems. Biodiversity-​related MEAs such as the Convention on Biological Diversity (CBD), the Convention on the Conservation of Migratory Species of Wild Animals (CMS) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) are important legal frameworks for the conservation of biological diversity in the oceans and seas. Chemical-​related MEAs such as the Basel, Rotterdam, and Stockholm Conventions also provide mechanisms to reduce pollutants in the marine environment. UN Environment aims to create synergies among these MEAs. The relationships between regional seas programmes and the CBD, and between regional seas programmes and the CMS Convention are reviewed below to illustrate such synergies.

(a) Regional seas and the CBD As envisioned by paragraph 2(b) of the UN Environment Governing Council Decision 27/​6 on Oceans, it is recommended to ‘utilize the regional seas conventions and action plans as platforms for the regional implementation of multilateral environmental agreements and global programmes and initiatives’. Resolution 2/​17, ‘Enhancing the work of the United Nations Environment Programme in facilitating cooperation, collaboration and synergies among biodiversity-​related conventions’, of UNEA-​2, reiterated the importance of cooperation between different MEAs for the conservation of biodiversity.44 In this context, regional seas conventions are also considered to be biodiversity-​related MEAs. In fact, the regional seas programmes have established a long-​lasting working relationship with the CBD. A number of regional seas programmes were involved in the regional workshops to identify and establish ecologically or biologically significant marine areas (EBSAs).45 The CBD Conference of Parties also called for collaboration with regional seas conventions and action plans in a number of decisions, in relation to the development and implementation of integrated marine and coastal area management, sustainable use of living resources, and establishment and management of marine protected areas, among others.46

 ibid.   Many regional seas conventions have adopted protocols related to the conservation of biological diversity (see Annex 3). 45 46   https://​w ww.cbd.int/​ebsa/​.   UNEP(DEC)/​RS.8/​INf.8. 43

44

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With regard to the Aichi Biodiversity targets, Targets 6,47 10,48 and 1149 are particularly relevant to the regional seas programmes. In order to assist their participating countries in achieving these targets, the regional seas programmes started mapping their regional targets against the Aichi Biodiversity Targets. By setting common regional objectives under the regional seas programmes aligned with the Aichi targets, the participating countries will be able to achieve the targets by working towards the regional targets.50 Member states also recognized the importance of the regional seas programmes for the implementation of the Strategic Plan for Biodiversity (2011–​2020) and the Aichi Biodiversity Targets. Paragraph 5 of the United Nations Environment Assembly Resolution 2/​10 of UN Environment of clearly invited the regional sea conventions and action plans to work towards the Aichi Biodiversity Targets. Responding to the request, UN Environment strives to support synergistic implementation of the targets through the regional seas programmes.

(b) Regional seas and CMS The regional seas programmes also provide a unique regional implementation mechanism for the implementation of other MEAs such as the CMS and the Convention on Wetlands of International Importance (Ramsar Convention). In addition, the regional seas programmes have been an important regional delivery mechanism of the GPA. Although the GPA is a non-​legally binding programme, it is an important mechanism to address marine pollution and the UNGA has repeatedly welcomed its activities.51 Under the CMS Convention, two regional agreements have been developed:  (i) the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS); and (ii) the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS). Some regional seas conventions have developed MOUs with relevant agreements under the CMS Convention and have worked to enhance cooperation for the protection of marine mammals at the regional level. For example, the Barcelona Convention signed an MOU with ACCOBAMS.

47   By 2020, all fish and invertebrate stocks and aquatic plants are managed and harvested sustainably, legally, and applying ecosystem-based approaches, so that overfishing is avoided, recovery plans and measures are in place for all depleted species, fisheries have no significant adverse impacts on threatened species, and vulnerable ecosystems and the impacts of fisheries on stocks, species, and ecosystems are within safe ecological limits. 48   By 2015, the multiple anthropogenic pressures on coral reefs and other vulnerable ecosystems impacted by climate change or ocean acidification are minimized, so as to maintain their integrity and functioning. 49   By 2020, at least 17 per cent of terrestrial and inland water areas and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative, and well-​connected systems of protected areas and other effective area-​based conservation measures, and integrated into the wider landscape and seascape. 50 51   See UNEP/​WBRS.18/​3.   See eg resolution A/​R ES/​65/​37.



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Other marine-​related MOUs developed under the CMS Convention, such as the MOU on the Conservation and Management of Dugongs and their Habitats through their Range, the MOU on the Conservation of Migratory Sharks, and the MOU on the Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-​East Asia (IOSEA Marine Turtle MOU) are also relevant to the work of the regional seas programmes. Discussion is ongoing to enhance coordination and cooperation between the regional seas programmes and these CMS Convention mechanisms. In order to enhance synergies and effectiveness of MEAs, UN Environment aims to support the regional seas programmes both collectively and individually to strengthen partnership with relevant regional and global agreements.52 By doing so, MEAs can provide better support to the participating countries in order to fulfil international, regional, and national commitments.

8.5  Regional Ocean Policies and Strategies 8.5.1 Overview UN Environment provides technical support to regions in developing integrated, cross-​sectoral ocean policies, and strategies through one or multiple regional seas programmes. UN Environment is mandated to promote implementation of the ecosystem approach53 as part of the programme of work and these activities are conducted within the framework. It should be noted that each regional seas programme, including those administered by UN Environment, has its respective programmes of work that are different from the UN Environment programme of work. These regional ocean policies and strategies facilitate coordinated national decision-​ making on the management of oceans and seas. The regional seas programmes can also serve as mechanisms to assist and coordinate the national implementation of these strategies. Thus, these instruments can be considered as tools for regional ocean governance. In the following section, four examples are given to illustrate the process to develop inter-​sectoral ocean policies and strategies: (i) African ocean governance strategy; (ii) regional ecosystem-​based management strategy for the ROPME Sea Area;54 (iii) integrated ocean policy for the South-​East Pacific; and (iv) partnership for regional ocean governance (PROG). Many of these regional policies are guided by the SDGs and aim to support participating countries in achieving their goals.

8.5.2 African ocean governance strategy UN Environment serves as the Secretariat of the African Ministerial Council on the Environment (AMCEN). AMCEN was established in 1985 and is mandated to provide

52   One of the objectives of the UN Environment programme of work (2016–​2017) is to strengthen synergies and coherence in environmental governance so as to facilitate the transition towards environmental sustainability in the context of sustainable development. 53 54   UNEP/​EA.1/​7 Biennial programme of work and budget for 2016–​2017.  See n 37.

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advocacy for environmental protection in Africa, to ensure that basic human needs are met adequately and in a sustainable manner, to ensure that social and economic development is realized at all levels, and to ensure that agricultural activities and practices meet the food security needs of the region.55 At the 15th Session of AMCEN, the African Environment Ministers agreed to develop an African ocean governance strategy through the Cairo Declaration on Managing Africa’s Natural Capital for Sustainable Development and Poverty Eradication (AMCEN 15 Cairo Declaration), which stated that its aim was to ‘develop a governance strategy, in accordance with the United Nations Convention on the Law of the Sea and regional seas conventions, on oceans and seas in Africa for the effective management of the region’s shared maritime resources and call for a regional conference to address the matter by 2016’. In addition, paragraph 8 of the Cairo Declaration supported the regional seas programmes as regional platforms for the implementation of the Africa Integrated Marine Strategy (2050) and Agenda 2063 on Ecosystem-​based Management Approaches for the exclusive economic zones (EEZs) and adjacent waters. From the decision, it is considered that the proposed governance strategy will also address areas beyond national jurisdiction. Responding to the Declaration, the four Secretariats of the regional seas conventions relevant to the two seas and two oceans in Africa, namely the Abidjan Convention, the Barcelona Convention, the Jeddah Convention, and the Nairobi Convention, had the first meeting on African ocean governance in October 2015.56 At the meeting, it was agreed to develop such an ocean governance strategy based on the ecosystem-​based approach. Furthermore, the meeting called for a scoping study of the existing governance mechanisms in Africa to identify gaps and formulate draft elements for the governance strategy. As the Sixth Special Session of AMCEN in 2016 requested to address the issue at a Regional Conference, 57 it is expected that the scoping study will guide the process to develop such ocean governance strategy for the African region.

8.5.3 Regional initiative for ecosystem-​based management in  the Red Sea and Gulf of Aden In 2012–​2013, UN Environment supported PERSGA to organize regional workshops and assessment, which established a Regional Initiative for Ecosystem-​Based Management in the Red Sea and Gulf of Aden, In 2014, PERSGA countries launched the regional Strategic Ecosystem Management project in the Red Sea and Gulf of Aden, supported by the GEF and the World Bank, which has facilitated joint interventions of environment, fisheries, and related sectors to shift from conventional to  See http://​web.unep.org/​regions/​roa/​a mcen/​about.  See http://​w ww.unep.org/​ecosystemmanagement/​water/​regionalseas40/​Meetings/​AfricanOcean Governance/​tabid/​1060488/​Default.aspx. 57   AMCEN, sixth special session Cairo Declaration 2016, para 4. 55

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ecosystem-​based management. In addition to legal and policy reforms, the project supports on-​the-​ground activities at pilot sites using MPAs as marine management areas for application of EBM principles, building on resource protection and incentive approaches through community-driven processes involving co-​management. The initiative also includes low impact alternative livelihoods options that reduce pressure on marine environment and balance resource exploitation.

8.5.4 Regional ecosystem-​based management strategy for  the ROPME Sea Area In April 1978, the eight governments of the region (Bahrain, the Islamic Republic of Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates) agreed on the Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution (Kuwait Convention) and the Action Plan for the Protection and Development of the Marine Environment and the Coastal Areas (Kuwait Action Plan). Since then, the ROPME has been participating in the UN Environment regional seas programme. At the 16th ROPME Council 58 held in 2013, the environment ministers from the ROPME region stressed the importance of an integrated approach through Decision CM 16/​7, which defines ‘Ecosystem Based Management Approach as a Road Map towards the sustainability of the marine environment, its resources and its services’. To implement the decision expressed by the ministers, the ROPME Secretariat proposed to develop a regional EBM strategy for the ROPME Sea Area. Subsequently, the first workshop ‘Towards the Development of a Regional Ecosystem Based Management Strategy (EBM) in the ROPME Sea Area’ was organized in April 201659 to conduct brainstorming sessions and to identify possible elements of the EBM strategy. As the first step to implement a cross-​sectoral approach, the ROPME Secretariat decided to work with the fisheries sector, and invited participants from both the environment and fisheries sectors. As a result of the workshop, the participants recommended aligning the ROPME EBM Strategy with the SDGs and the Aichi Biodiversity Targets. By doing so, the ROPME EBM Strategy will help ROPME member states achieve the global targets in a regionally coordinated manner. The meeting also suggested that ROPME work more closely with the RECOFI60 in developing the ROPME EBM Strategy, noting that ROPME and RECOFI cover the same geographical area with the participation of the same eight member states. This endorsement from the ROPME member states is a significant milestone for the two regional sectoral bodies to work together. 58   The ROPME Council is the highest decision-​making body for the Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution (Kuwait Convention) and the Action Plan for the Protection and Development of the Marine Environment and the Coastal Areas (Kuwait Action Plan). 59 60  See http://​ropme.org/​551_ ​EBM_ ​EN.clx.   http://​w ww.fao.org/​fishery/​r fb/​recofi/​en.

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A fully fledged EBM strategy and its implementation would involve all relevant sectors in the ROPME Sea Area, including the tourism, navigation, coastal development, and oil sectors. However, the ROPME Secretariat decided to take a step-​by-​step approach in involving multiple sectors to implement cross-​sectoral management of the ROPME Sea Area. It is expected that more sectors will be involved through the process of developing and implementing the ROPME EBM Strategy. Once it is approved and implemented, the ROPME EBM Strategy will allow coordinated actions by the eight countries for the sustainable management of the shared ROPME Sea Area. It will also be a significant milestone for the region to demonstrate an outcome of regional cooperation, despite the history of conflicts and wars in the region.

8.5.5 Integrated regional ocean policy for the South-​East Pacific The Permanent Commission for the South Pacific (CPPS) was established in 1952 by the governments of Chile, Ecuador, and Peru. Since then, the CPPS has coordinated maritime policies in the region. The CPPS also serves as the Secretariat of the Convention for the Protection of the Marine Environment and Coastal Areas of the South-​East Pacific (Lima Convention) and the Action Plan for the Protection of the Marine Environment and Coastal Areas of the South-​East Pacific,61 and is a family member of the UN Environment regional seas programme. At the VIII CPPS Meeting of Ministers of Foreign Affairs held in The Galápagos Islands, Ecuador in 2012, the ministers agreed on the ‘Commitment of Galápagos for the XXI Century’.62 This led to the new strategic directions of the CPPS, focusing more on the integrated approach to manage the marine and coastal ecosystems: [e]‌xpress their commitment to the new strategic orientation of the Organization, according to which the CPPS, in view of the challenges of the XXI Century, will support Member Countries to achieve in an integrated perspective, their sustainable development. This, as defined in the 1992 Rio Declaration on Environment and Development and the Agenda 21, taking into account, among others, the Ecosystem Approach, the Precautionary Principle and the international instruments aimed at the protection of seas and oceans, respecting national policies and mechanisms in effect in each country. This orientation applied in the areas of sovereignty and jurisdiction of Member States of the CPPS, will also guide its projection beyond that zone, including the Pacific basin.

This new direction brought about the initiation of the process to develop the regional integrated ocean policy. As the first step, the Integrated Regional Oceanic Policies Workshop was organized in October 2015 to explore options for an integrated policy for the South-​east Pacific with technical assistance from UN Environment and the Partnership for Regional Ocean Governance (see section 5.4). The participants represented diverse sectors, such as foreign affairs, environment, fisheries, and navigations.   The action plan includes Panama.  See http://​cpps.dyndns.info/​cpps-​docs-​web/​planaccion/​docs2016/​Mayo/​compromiso-​galapagos-​ siglo21.pdf. 61

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The scope of the integrated policy included both the areas within the national jurisdictions and areas beyond national jurisdictions (ABNJs). The workshop recommended that the CPPS General Assembly consider the need of establishing an integrated regional ocean policy. Furthermore, the participants recommended that the integrated ocean policy include general guidelines such as encouraging the use of science and technology research.63 Subsequently, the XII CPPS General Assembly on 25 November 2015 approved to create a working group for an integrated regional ocean policy64 with a view to identifying common interests in line with sustainable development. As the first stage in developing the regional integrated ocean policy, it was decided that the working group would assist formulating national ocean policies of the participating countries.65 Therefore, the countries will first develop their national integrated ocean policies, as necessary. Then they will resume the process of developing the regional integrated ocean policy. This process highlights the importance of regional mechanisms in facilitating the development of integrated ocean policies at the national and regional levels.

8.5.6 Partnership for regional ocean governance The Institute for Sustainable Development and International Relations, the Institute for Advanced Sustainability Studies, and UN Environment established the PROG in 2015. The partnership is based on the idea that the regional mechanisms are crucial for the conservation and sustainable use of the oceans, and it is necessary to develop further cooperation among regional mechanisms. PROG supports regional initiatives in three ways: (i) within regions (ii) between regions; and (iii) between the regional and the global levels. To date, PROG has been supporting two types of activities: supporting regional efforts on the conservation of marine biological diversity in ABNJs (in the Abidjan Convention area and the CPPS area), and implementing the ocean-​related SDGs (Nairobi Convention area) (see section 7.5.3). Through the partnership, UN Environment aims to showcase the role of regional ocean governance mechanisms for sustainable development.

8.6  Regional Seas and Areas Beyond National Jurisdictions 8.6.1 Overview Through Resolution 69/​292 of 19 June 2015, member states decided to develop an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of ABNJs. With the same resolution, they agreed that the process to develop the new instrument ‘should not undermine

63  Recommendation from the participants of the Integrated Regional Oceanic Policies Workshop (IROP) organized by the Permanent Commission for the South Pacific. 64   Resolution CPPS/​AO/​X II/​N3/​2015. 65   See para 2 of Resolution 3: Creation of GT-​PROI of 2015.

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existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies’.66 The principal focus of the UN Environment regional seas programme has been the marine and coastal areas within the national jurisdictions of their participating countries. However, five regional seas conventions include ABNJs in their geographical coverage and they are considered to be particularly relevant to the process. The other regional seas programmes are also relevant to the discussion, because the areas under the national jurisdictions and ABNJs are ecologically connected. The Second Session of the United Nations Environment Assembly encouraged UN Environment to continue to participate in the process initiated by the United Nations General Assembly in its Resolution 69/​292 on the negotiations on the development of an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.67

As requested by member states, UN Environment engages in the discussion mainly through the regional seas programme.68 It is assumed that the governance of ABNJs will continue to be an important element in the realm of ocean governance in the coming years.

8.6.2 ABNJ and regional seas programmes The regional seas programmes are one of the mechanisms for the protection of the marine biological diversity in ABNJs. Five regional seas programmes currently include ABNJs within their geographical coverage, as defined by their conventions: (i) the OSPAR Conventions; (ii) the Noumea Convention; (iii) the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) Convention; (iv) the Barcelona Convention; and (v) the Lima Convention.69 The other thirteen regional seas conventions and action plans do not include ABNJs within their geographical scope. The CCAMLR Convention established the first wholly high seas marine protected area (MPA) in the world. The South Orkney Islands Southern Shelf MPA covers 94,000 km2. Under the OSPAR Convention, contracting parties have designated seven MPAs within ABNJs:  (1) the Charlie-​Gibbs North High Seas MPA; (2)  the Charlie-​Gibbs South MPA; (3) the Milne Seamount Complex MPA; (4) the Altair Seamount High Seas MPA; (5) the Mid-​Atlantic Ridge north of the Azores High Seas MPA; (6) the Antialtair Seamount High Seas MPA; and (7) the Josephine Seamount High Seas MPA. Similarly, under the Barcelona Convention and the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, thirty-​four Specially Protected Areas of Mediterranean Importance (SPAMI) were registered. Among these sites, the Pelagos Sanctuary for marine mammals includes ABNJs.   Operative para 3 of resolution 69/​292.   Operative para 9 of resolution 2/​10 on oceans and seas. 68   UN Environment submitted its inputs to the Second Session of the Preparatory Committee. See http://​w ww.un.org/​depts/​los/​biodiversity/​prepcom_​fi les/​U NEP_​a nd_​BBNJ_​PrepCom2.pdf. 69   The Lima Convention applies to ABNJs in relation to pollution. 66 67



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In addition, some other regional seas programmes are starting to examine issues related to the conservation of marine biological diversity in ABNJs, such as the Nairobi Convention and Abidjan Convention. Decision CP7/​7 of the 7th Meeting of the Conference of Parties of the Nairobi Convention encouraged contracting parties to recognize and describe the ecologically or biologically significant marine areas within their EEZs and ABNJs, and to establish MPAs where appropriate. The following 8th Conference of Parties further requested the Secretariat to ‘contribute to the development of an African strategy on ocean governance in the context of the African Integrated Maritime Strategy 2050 and Agenda 2063, invariably such a strategy will include approaches for the management of marine resources in the EEZs and adjacent waters’ through Decision CP 8/​5. The decision was made in response to the AMCEN Cairo Declaration of 2015. This decision includes adjacent waters in addition to EEZs (see section 7.5.2). Within the framework of the ‘Sustainable fisheries management and biodiversity conservation of deep-​sea living marine resources and ecosystems in the ABNJ’ project,70 a methodology of area-​based planning in ABNJs is also being tested in the Western Indian Ocean region, as a pilot region. Under the same project, the methodology was also tested on a pilot basis in the South-​East Pacific region. Apart from the project, CPPS parties have already started to develop national and regional integrated ocean policies (see section 5.3) for marine areas, including ABNJs. It should be noted that the Lima Convention covers ABNJs with regard to pollution, but the text does not refer to the conservation of biological diversity in the high seas. Under the framework of the CPPS Convention, discussion is ongoing to consider the possible establishment of a working group to study the issues related to marine biodiversity conservation in ABNJs. In the West, Central, and Southern Africa, the contracting parties of the Abidjan Convention adopted Decision CP 11/​10 on Conservation and Sustainable use of the Marine Biodiversity of the Areas located beyond National Jurisdictions. Paragraph 4 of the decision requested the Secretariat to set up a working group to study the issues related to the conservation and sustainable use of marine biological diversity in ABNJs.71 Responding to the decision, PROG supported the organization of a scoping workshop on ABNJs with the Abidjan Convention Secretariat. The workshop elaborated draft terms of reference for the working group for consideration by the Abidjan Convention contracting parties. Through paragraph 13 of Resolution 2/​10 of the United Nations Environment Assembly, member states also encouraged ‘the contracting parties to existing regional 70  See https://​w ww.thegef.org/​project/​a bnj-​s ustainable-​f isheries-​m anagement-​a nd-​biodiversity-​ conservation-​deep-​sea-​living-​marine. 71   ‘To request the secretariat to set up a working group to study all aspects of the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction within the framework of the Abidjan Convention, pursuant to the United Nations Convention on the Law of the Sea and taking into account the process under way within the framework of the United Nations, and especially the work of the ad hoc open-​ended informal working group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.’

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seas conventions to consider the possibility of increasing the regional coverage of those instruments in accordance with international law’. Responding to the request, the regional seas programmes agreed to bring this paragraph to the attention of their respective governing bodies.72 While they noted that more pressing environmental issues exist within the national jurisdictions, the regional seas programmes recognized the importance of ABNJs, given the ecological connection between EEZs and ABNJs.73

8.6.3 Other UN Environment work on ABNJs The sequential ten-​year Montevideo Programmes for the Development and Periodic Review of Environmental Law is a principal mechanism for the work on environmental law at UN Environment. The programme has been setting broad strategies for the international law communities and for the work of UN Environment in relation to environmental law. A part of the Montevideo Programme IV is the seminar entitled ‘Laws to promote environmental sustainability of oceans and seas’, which was held in Panama City in July 2015. The seminar concluded, inter alia, that ‘[t]‌here needs to be coordination of the international law community’s efforts to address areas beyond national jurisdiction; for the time being different legal regimes apply, several sectoral organizations have competence and there is no overall cross-​sectoral coordinating mechanism for management’.74 Regarding the living marine resources in ABNJs, it was pointed out that ‘[w]hilst there is arguably a comprehensive international framework for sustainable fisheries there is limited implementation, a lack of consistent interpretation of norms and principles, and inadequate mechanisms for compliance verification’.75 In relation to pollution in ABNJs, the seminar identified that

(b) International regulation of marine pollution in areas beyond national jurisdiction is fragmented with a number of international instruments relating to different regions and/​or different sources of pollution; a more holistic approach might provide new and better tools to tackle marine pollution; and (c) Although there is a regulatory regime under Part XI of the United Nations Convention on the Law of the Sea controlling deep seabed mining in areas beyond national jurisdiction, the regime is based on legal instruments that were negotiated some time ago, and is primarily focused on exploration; there may be scope for further work.



Subsequently, the Midterm Review of the Montevideo Programme IV for the Development and Periodic Review of Environmental Law was held in September 2015. The meeting recommended that   UNEP/​WBRS.18/​9 Report of the 18th Global Meeting of the Regional Seas Conventions and action plans held from 30 September to 1 October 2016. 73   UNEP/​WBRS.18/​9. 74   ibid para 15(c) of the meeting report. See http://​w ww.unep.org/​delc/​Portals/​119/​documents/​montevideo/​-​panama-​ocean-​law-​seminar-​report.pdf. 75   ibid para 16(b). 72



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[u]‌nder the auspices of the General Assembly of the United Nations, studying and, if appropriate, developing more effective means for the protection of oceans, fisheries and biodiversity in areas beyond national jurisdictions and supporting the development of international legally binding instruments in accordance with the United Nations Convention on the Law of the Sea.76

UN Environment handles marine pollution mainly through the GPA. GPA encompasses three partnerships: the Global Partnership on Marine Litter;77 the Global Partnership on Nutrient Management;78 and the Global Wastewater Initiative.79 Marine litter is a significant issue in ABNJs and member states recognized that plastics and microplastics ‘are found in all compartments of the marine environment’.80 Member states also called for ‘national, regional and international initiatives, cooperation and commitments to conserve and sustainably manage coral reefs including cold-​water coral ecosystems’ through paragraph 1 of Resolution 2/​12 on sustainable coral reef management of the United Nations Environment Assembly. The same resolution requested the executive director of UN Environment to raise awareness through public outreach campaigns.81 Based on these requests, UN Environment launched the global campaign to address marine litter (CleanSeas campaign) in 2017 and will launch the coral reef campaign in 2018. These campaigns will be relevant to the conservation of marine biological diversity of both in national justidictions and in ABNJs.

8.7 Conclusions The UN Environment regional seas programme demonstrated that the regional ocean governance mechanism is an important framework for the sustainable management of the marine and coastal ecosystems. Under the overarching framework stipulated by UNCLOS, regional mechanisms contribute to global ocean governance. Cooperation and coordination of regional mechanisms show that the regional mechanisms are shifting towards a more integrated approach, moving away from the traditional sectoral approach. The regional seas programme has made significant progress over forty years, as is demonstrated by the participation of more than 143 countries. The adoption of regional seas governing instruments such as action plans, conventions, and protocols was also a great achievement. The regional seas programmes have implemented many projects to support the implementation of these instruments in their respective regions.

  UNEP/​Env.Law/​MTV4/​MR/​1/​5. 78   http://​unep.org/​g pa/​g pml/​g pml.asp.   http://​unep.org/​g pa/​g pnm/​g pnm.asp. 79   http://​unep.org/​g pa/​g wi/​g wi.asp. 80   Resolution 2/​11 on marine plastics and microplastics of the Second Session of the United Nations Environment Assembly. For further details, see UNEP/​EA.2/​INF/​23 ‘Technical report on marine plastic debris and microplastics: Global lessons and research to inspire action and guide policy change’. 81   See para 10 of resolution 2/​12 on sustainable coral reef management of the Second Session of the United Nations Environment Assembly. 76

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However, the regional seas programme also faces challenges. The continuous degradation of the oceans and seas indicates that the business-​as-​usual model of the regional seas programme cannot effectively address the pressing marine environmental issues. Substantive, institutional, and financial issues need to be reviewed in order to transform the programme so that it can better serve member states. In terms of substantive aspects, it is recommended to review and revise current action plans, if found necessary. Unfortunately, the level of implementation of the action plans is not well documented in most of the regions.82 Thus, it is crucial to understand the progress made so far and to evaluate whether the agreed regional actions are still relevant and necessary today. Some action plans may not be relevant to the current environmental, social, and economic situations. In fact, many action plans have not been revised since their original adoption in the 1970s or 1980s. Consequently, concepts such as the ecosystem approach are not well incorporated in the action plans. These action plans also tend to focus on monitoring and assessment rather than on actions on the ground. To improve the status of the marine environment and to make greater impact on the ground, it is suggested that the regional seas programmes should be more action-​focused. In the context of the Agenda 2030, the regional seas programmes are starting to review their regional targets and indicators in light of the SDGs. At the 18th Global Meeting of the Regional Seas Conventions and Action Plans, they agreed to prepare their respective SDG implementation outlooks, which propose how they can support their participating countries in implementing and reviewing ocean-​related SDGs. In line with the SDGs, some regions are starting to develop integrated ocean policies and strategies (see section 5). These developments may contribute to the revision of the regional seas programmes and may lead to the revisions of the action plans. The transformation of the UN Environment regional seas programme would also require some institutional reforms. For example, many regional seas programmes do not have compliance mechanisms. Owing to this arrangement, many of them do not know how much their instruments such as protocols are implemented at the national level. The reporting mechanisms can also be strengthened in many regions to encourage commitments by the participating countries. The institutional mechanisms to receive scientific information can also be examined. The regional seas programmes do not have a standard structure for scientific mechanisms and different regions have different means to obtain scientific advice. While most of the regions receive scientific inputs by national experts nominated by the participating countries, some regions also receive independent advice from partner organizations, such as regional marine science bodies. This type of arrangement may also be considered in other regions to formulate regional policies that are guided by scientific evidence. Financial sustainability is also a key for the future of the programme. Some regions struggle with their financial situations.83 The lack of financial and human resources hinders substantive activities in these regions and weakens the institutional

82

  UNEP/​WBRS.18/​INF5 Ecosystem Approach to Regional Seas.

83

  See Mrema (n 12).



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and governance framework. To provide sustainable regional ocean governance mechanisms, these secretariats need to have institutional strength, supported by sufficient financial resources. It should also be noted that most of the regional seas programmes do not have financing mechanisms to support the implementation of their action plans, conventions, and protocols. In some cases, projects funds are used to support national implementation of the regional seas instruments. However, this lack of sustainable financing mechanisms to support national implementation may have limited actions at the national level. Since 1974, UN Environment has coordinated the regional seas programme. It is one of the most significant achievements the organization has made over forty years. The programme continues to be the crucial implementation mechanism for the work of UN Environment on oceans and seas and UN Environment strives to revitalize the programme. Agenda 2030 and its SDGs provide opportunities for the regional seas programmes to assist their participating countries in delivering the international goals and targets. The existing monitoring and review mechanisms under the regional seas programmes may also serve as a means to review the progress towards the SDGs.84 UN Environment, as the mandated coordinated body, is renewing its commitment to provide support to member states through the regional seas programme so that they can continue receiving ecosystem services from the healthy oceans and seas.

84   UNEP/​WBRS.18/​2 Regional Seas implementation and monitoring of the Sustainable Development Goals (SDGs).

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ANNEX 1

Indicative List of Marine-​related Multilateral Environmental Agreements Developed under  the Auspices of UN Environment Year

Name

Global Conventions 1973

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

1979

Convention on the Conservation of Migratory Wild Animals (CMS)

1985

Vienna Ozone convention for the Protection of the Ozone Layer Montreal Protocol on Substances that Deplete the Ozone Layer

1989

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal

1992

Convention on Biological Diversity (CBD)

1998

Rotterdam Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC) Convention

2001

Stockholm Persistent Organic Pollutants (PoPs) Convention

2013

Minamata Convention on Mercury

Regional Conventions 1992

Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas (ASCOBANS)

1994

Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas (ASCOBANS) Agreement on the Conservation of African-​Eurasian Migratory Water Birds (AEWA)

1996



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ANNEX 2

Indicative List of Ocean-​related SDGs Goal 1. End poverty in all its forms everywhere 1.5 By 2030, build the resilience of the poor and those in vulnerable situations and reduce their exposure and vulnerability to climate-​related extreme events and other economic, social and environmental shocks and disasters Goal 2.  End hunger, achieve food security and improved nutrition and promote sustainable agriculture 2.4 By 2030, ensure sustainable food production systems and implement resilient agricultural practices that increase productivity and production, that help maintain ecosystems, that strengthen capacity for adaptation to climate change, extreme weather, drought, flooding and other disasters and that progressively improve land and soil quality Goal 5. Achieve gender equality and empower all women and girls 5.a Undertake reforms to give women equal rights to economic resources, as well as access to ownership and control over land and other forms of property, financial services, inheritance and natural resources, in accordance with national laws Goal 6. Ensure availability and sustainable management of water resources and sanitation for all 6.3 By 2030, improve water quality by reducing pollution, eliminating dumping and minimizing release of hazardous chemicals and materials, halving the proportion of untreated wastewater and substantially increasing recycling and sager reuse globally 6.5 By 2030, implement integrated water resources management at all levels, including through transboundary cooperation as appropriate 6.6 By 2030, protect and restore water-​related ecosystems, including mountains, forests, wetlands, rivers, Aquifers and lakes Goal 7. Ensure access to affordable, reliable, sustainable and modern energy for all 7.2 By 2030, increase substantially the share of renewable energy in the global energy mix 7.a By 2030, enhance international cooperation to facilitate access to clean energy research and technology, including renewable energy, energy efficiency and advanced and clear fossil-​fuel technology, and promote investment in energy infrastructure and clean energy efficiency Goal 8: Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all 8.3 Promote development-​oriented policies that support productive activities, decent job creation, entrepreneurship, creativity and innovation, and encourage the formalization and growth of micro-​, small-​, and medium-​sized enterprises, including through access to financial services 8.4 Improve progressively, through 2030, global resource efficiency in consumption and production and endeavour to decouple economic growth from environmental degradation, in accordance with the 10-​year framework of programmes on sustainable consumption and production, with developed countries taking the lead 8.9 By 2030, devise and implement policies to promote sustainable tourism that creates jobs and promotes local culture and products Goal 11. Make cities and human settlements inclusive, safe, resilient and sustainable 11.6 By 2030, reduce the adverse per capita environmental impacts of cities, including paying special attention to air quality and municipal and other waste management

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Goal 12. Ensure sustainable consumption and production patters 12.2 By 2030 achieve the sustainable management and efficient use of natural resources 12.4 By 2020, achieve the environmentally sound management of chemicals and all wastes throughout their life cycle, in accordance with agreed international frameworks, and significantly reduce their release to air, water and soil in order to minimize their adverse impacts on human health and the environment Goal 13. Take urgent action to combat climate change and its impacts 13.1 Strengthen resilience and adaptive capacity to climate-​related hazards and natural disasters in all countries 13.2 Integrate climate change measured into national policies, strategies and planning Goal 14. Conserve and sustainably use the oceans, seas and marine resources for sustainable development 14.1 By 2025, prevent and significantly reduce marine pollution of all kinds, in particular from land-​based activities, including marine debris and nutrient pollution 14.2 By 2020, sustainably manage and protect marine and coastal ecosystems to avoid significant adverse impacts, including by strengthening their resilience, and take action for their restoration in order to achieve healthy and productive oceans 14.3 Minimize and address the impacts of ocean acidification, including through enhanced scientific cooperation at all levels 14.4 By 2020, effectively regulate harvesting and end overfishing, illegal, unreported and unregulated fishing and destructive fishing practices and implement science-​based management plans, in order to restore fish stocks in the shortest time feasible, at least to levels that can produce maximum sustainable yield as determined by their biological characteristics 14.5 By 2020, conserve at least 10 per cent of coastal and marine areas, consistent with national and international law and based on the best available scientific information 14.6 By 2020, prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, eliminate subsidies that contribute to illegal, unreported and unregulated fishing and refrain from introducing new such subsidies, recognizing that appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of the World Trade Organization fisheries subsidies negotiation (Footnote 2:  Taking into account ongoing World Trade Organization negotiations, the Doha Development Agenda and the Hong Kong ministerial mandate) 14.7 By 2030, increase the economic benefits to Small Island Developing States and least developed countries from the sustainable use of marine resources, including through sustainable management of fisheries, aquaculture and tourism 14.a Increase scientific knowledge, develop research capacity and transfer marine technology, taking into account the Intergovernmental Oceanographic Commission Criteria and Guidelines on the Transfer of Marine Technology, in order to improve ocean health and to enhance the contribution of marine biodiversity to the development of developing countries, in particular small island developing States and least developed countries 14.b Provide access for small-​scale artisanal fishers to marine resources and markets 14.c Enhance the conservation and sustainable use of oceans and their resources by implementing international law as reflected in UNCLOS, which provides the legal framework for the conservation and sustainable use of oceans and their resources, as recalled in paragraph 158 of The Future We Want



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Goal 17. Strengthen the means of implementation and revitalize the global partnership for sustainable development 17.16 Enhance the global partnership for sustainable development, complemented by multi-​ stakeholder partnerships that mobilize and share knowledge, expertise, technology and financial resources, to support the achievement of the sustainable development goals in all countries, in particular developing countries 17.18 By 2020, enhance capacity-​building support to developing countries, including for least developed countries and small island developing States, to increase significantly the availability of high-​quality, timely and reliable data disaggregated by income, gender, age, race, ethnicity, migratory status, disability, geographic location and other characteristics relevant in national context.

Commonly used short name

Abidjan Convention

North-​East Pacific Regional Seas programme (NEP)

Barcelona Convention (UN Environment/​M AP)

Region

West and Central African Region

North-​East Pacific

Mediterranean

Action Plan for the Protection of the Marine Environment and the Sustainable Development of the Coastal Areas of the Mediterranean (MAP Phase II)

Plan of Action for the Protection and Sustainable Development of the Marine and Coastal Areas of the North-​East Pacific

Action Plan for the protection and Development of the Marine Environment and Coastal Areas of the West and Central African Region

Action Plan

Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention)

Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific* (Antigua Convention)

Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the Western, Central and Southern African Region (Abidjan Convention)

Convention

Overview of the Regional Seas Programmes

ANNEX 3

• Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea • Protocol for the Protection of the Mediterranean Sea against Pollution from Land-​Based Sources and Activities

N/​A

• Protocol Concerning Cooperation in Combating Pollution in Cases of Emergency in the Western and Central African Region • Protocol to the Abidjan Convention Concerning Cooperation in the Protection and Development of Marine and Coastal Environment from Land-​ Based Sources and Activities in the Western, Central and Southern African Region

Protocols

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Black Sea

Black Sea Commission (BSC)

Strategic Action Plan for the Environmental Protection and Rehabilitation of the Black Sea

The Convention on the Protection of the Black Sea Against Pollution (Bucharest Convention)

(continued)

• Protocol on cooperation in combating pollution of the Black Sea marine environment by oil and other harmful substances in emergency situations • Protocol on protection of the Black Sea marine environment against pollution from land based sources • Protocol on the protection of the Black Sea marine environment against pollution by dumping • The Black Sea Biodiversity and Landscape Conservation Protocol to the Convention on the Protection of the Black Sea against Pollution

• Protocol for the Prevention of Pollution in the Mediterranean Sea by Dumping from Ships and Aircraft • Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean • Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal • Protocol on Integrated Coastal Zone Management in the Mediterranean • Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil

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CCAMLR

Coordination Body of Sea Action Plan for the Protection of East Asia (COBSEA) and Sustainable Development of the Marine and Coastal Areas of the East Asian Region (East Asian Seas Action Plan)

Helsinki Commission (HELCOM)

The Regional Organization for the Conservation of the Environment of the Red Sea and Gulf of Aden (PERSGA)

Antarctic

East Asian Seas

Baltic Sea

Red Sea and Gulf of Aden

The Action Plan for the Conservation of the Marine Environment and Coastal Areas in the Red Sea and Gulf of Aden

Baltic Sea Action Plan

-​

Caribbean Action Plan

Cartagena Convention (CAR)

Wider Caribbean

Action Plan

Commonly used short name

Region

N/​A

N/​A

N/​A

• Protocol Concerning Co-​operation in Combating Oil Spills in the Wider Caribbean Region • Protocol Concerning Pollution from Land-​Based Sources and Activities • Protocol Concerning Specially Protected Areas and Wildlife (SPAW) in the Wider Caribbean Region

Protocols

• Protocol Concerning the Regional Regional Convention for the Cooperation in Combating Pollution by Conservation of the Red Sea and Oil and other Harmful Substances in Gulf of Aden Environment (Jeddah Cases of Emergency Convention) • Protocol Concerning Technical Cooperation to Borrow and Transfer Experts, Technicians, Equipment and Materials in Cases of Emergency

Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention)

N/​A

The Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR Convention)

The Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region (Cartagena Convention)

Convention

188 Kanako Hasegawa and Elizabeth Mrema

Regional Organization for the Protection of the Marine Environment (ROPME)

Permanent Commission of the South Pacific (CPPS)

ROPME Sea Area

South East Pacific

Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution (Kuwait Convention)

Plan de Acción para la Protección Convenio para la Protección del del Medio Marino y Áreas costeras Medio Marino y la Zona Costera del Pacifico Sudeste del Pacífico Sudeste (Lima Convention)

The Action Plan for the Protection and Development of the Marine Environment and the Coastal Areas of Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates

UN Environment Regional Seas Programme (continued)

• Protocolo Complementario del Acuerdo sobre Cooperación Regional para el Combate contra la Contaminación del Pacífico Sudeste por Hidrocarburos y otras Sustancias Nociva • Protocolo para Protección del Pacífico Sudeste contra la Contaminación Proveniente de Fuentes Terrestres • Protocolo para la Conservación y Administración de las Areas Marinas y Costeras Protegidas del Pacífico Sudeste • Protocolo para la Protección del Pacífico Sudeste contra la Contaminación Radiactiva

• Protocol concerning Regional Cooperation in Combating Pollution by Oil and Other Harmful Substances in Cases of Emergency • Protocol for the Protection of the Marine Environment against Pollution from Land-​Based Sources • Protocol concerning Marine Pollution resulting from Exploration and Exploitation of the Continental Shelf • Protocol concerning the conservation of biological diversity and the establishment of protected areas*

• Protocol Concerning the Protection of the Marine Environment from Land-​ Based Activities in the Red Sea and Gulf of Aden • Protocol Concerning the Conservation of Biological Diversity and the Establishment of Network of Protected Areas in the Red Sea and Gulf of Aden • Protocol Concerning Cooperation in Management of Fisheries and Aquaculture in the Red Sea and Gulf of Aden

189

OSPAR Commission (OSPAR)

North-​East Atlantic

Strategy of the OSPAR Commission for the protection of the marine environment of the North-​East Atlantic (2010–​2020)

The Convention for the Protection of the Marine Environment of the North-​East Atlantic (OSPAR Convention)

The Convention on the Protection of the Natural Resources and Environment in the South Pacific Region (Noumea Convention)

Secretariat of the Pacific Regional Environment Programme (SPREP)

Pacific

The Action Plan for managing the Natural Resources and Environment of the South Pacific

The Action Plan for the Protection, N/​A Management and Development of the Marine and Coastal Environment of the Northwest Pacific Region (NOWPAP)

NOWPAP

Amended Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean (Nairobi Convention)

Convention

Northwest Pacific Action Plan

Action Plan The Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region

Commonly used short name

West Indian Ocean Nairobi Convention

Region

N/​A

• Protocol Concerning Co-​operation in Combating Pollution Emergencies in the South Pacific Region • Protocol for the Prevention of Pollution of the South Pacific Region by Dumping • Protocol on hazardous and noxious substances pollution, preparedness, response, and cooperation in the pacific region* • Protocol on Oil Pollution preparedness, response and cooperation in the pacific region*

N/​A

• Protocol Concerning Co-​operation in Combating Marine Pollution in Cases of Emergency in the Eastern African Region • Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-​Based Sources and Activities • Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region

Protocols

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South Asia Co-​ operative Environment Programme (SACEP)

Tehran Convention

South Asian Seas

Caspian Sea

* Not yet entered into force.

Protection of the Arctic Marine Environment (PAME)

Arctic

Caspian Strategic Action Plan

The Action Plan for the South Asian Seas Programme (SASAP)

Arctic Council’s Arctic Marine Strategic Plan 2015–​2025

The Framework Convention for the Protection of the Marine Environment of the Caspian Sea (Tehran Convention)

N/​A

N/​A

• Protocol Concerning Regional Preparedness, Response and Co-​ operation in Combating Oil Pollution Incidents • Protocol for the Protection of the Caspian Sea against Pollution from Land-​based Sources and Activities • Protocol for the Conservation of Biological Diversity

N/​A

N/​A

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ANNEX 4

Previous Regional Seas Strategic Directions RSSD (2004–​2007)

RSSD (2008–​2012)

RSSD (2013–​2016)

1

Increase Regional Seas’ contribution to Sustainable Development, through the enhancement of local, national, regional and global partnerships with relevant social, economic and environmental stakeholders, and through the strengthened implementation of the mandates of the Regional Seas, as a major contribution to the implementation of the WSSD Plan of Implementation and the goals and targets associated with the Millennium Declaration.

Enhance the sustainability and effectiveness of Regional Seas Programmes through increasing country ownership, incorporating Regional Seas conventions and protocols into national legislation, promoting compliance and enforcement mechanisms, involving civil society and the private sector, building capacities, ensuring viable national and international financial arrangements, as well as developing assessment/​ evaluation procedures where appropriate.

Effectively apply an ecosystem approach in the management of the marine and coastal environment.

2

Enhance the sustainability and effectiveness of Regional Seas Programmes through increasing country ownership, incorporating Regional Seas conventions and protocols into national legislation, promoting compliance and enforcement mechanisms, involving civil society and the private sector, building capacities, ensuring viable national and international financial arrangements, as well as developing assessment/​ evaluation procedures where appropriate.

Contribute to the implementation of the Beijing Declaration of the Global Programme of Action for the Protection of the Marine Environment from Land-​based Activities, especially the provision related to the development and implementation of protocols addressing land-​ based pollution sources and activities.

Contribute to the implementation of the Manila Declaration of the Global Programme of Action for the Protection of the Marine Environment from Land Based Activities (GPA), in particular the partnerships on wastewater Management, nutrients, and marine litter.

3

Enhance Regional Seas’ visibility and political impact in global, regional and national policy setting, through strengthening the Regional Seas Partnership, increasing political and public awareness on the economic, social, and environmental importance of coastal and marine resources, promoting concerted information and communication policies, and ensuring participation and promotion of Regional Seas in relevant national, regional and global fora.

Strengthen regional cooperation on preparedness and response to pollution from maritime accidents with the International Maritime Organization (IMO) and promote the implementation, as pertinent, of the IMO conventions.

Strengthen capacities at the regional level and national level on marine and coastal governance.



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RSSD (2004–​2007)

RSSD (2008–​2012)

RSSD (2013–​2016)

4

Support knowledge-​based policy-​making, enhanced public participation, education, awareness, and improved reporting on the state of the coastal & marine environment, its resources, and possible threats to them, through amongst others, contributing to appropriate national and regional monitoring and assessment activities.

Contribute to the effective implementation of the 2012 biodiversity targets, the WSSD Plan of Implementation biodiversity targets for promoting the establishment of networks of marine and coastal protected areas and planning of proper coastal land and watershed use by 2012 including the designation of important wetlands under the Ramsar Convention.

Support the provision of tools to decouple economic growth from environmental pressures in the marine and coastal environment by promoting resource efficiency and productivity, including assessing the value of the services provided by these key ecosystems.

5

Increase the use of Regional Seas as a platform for developing common regional objectives, promoting synergies and co-​ordinated regional implementation of relevant MEAs, global and regional initiatives, and responsibilities of United Nations Agencies and other international actors, as a contribution to the sustainable management of the coastal and marine environment.

Emphasize the need to implement the ecosystem approach in integrated marine and coastal management (IMCAM) as an overarching management framework for addressing threats to the sustainability of regional seas.

Strengthen coordination and build necessary capacities at the regional and national levels to improve global knowledge and trends on the status of the marine environment, contributing to the World Oceans Assessment (Regular Process).

6

Develop and promote a common vision and integrated management, based on ecosystem approaches, of priorities and concerns related to the coastal and marine environment and its resources in Regional Seas Conventions and action plans, introducing amongst others proactive, creative and innovative partnerships and networks and effective communication strategies.

Assess and address the impact of climate change on the marine and coastal environment, in particular, the potential social, economic and environmental impacts and consequences on fisheries, tourism, human health, marine biodiversity, coastal erosion, and small islands ecosystems. Promote cooperation for formulating regional climate change adaptation strategies.

Strengthen collaboration mechanisms with relevant Multilateral Environmental Agreements (MEAs), UN Agencies and International Financial Institutions (IFIs)

(continued)

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7

RSSD (2004–​2007)

RSSD (2008–​2012)

-​

Intensify regional activities in support of the WSSD Plan of Implementation and the Jakarta Mandate of the Convention on Biological Diversity, notably by identifying critical issues of marine biodiversity, protecting its major components, and promoting its sustainable use; more specifically, focusing on: a. Addressing the protection of i) marine biodiversity beyond areas of national jurisdiction; and ii) deep-​ sea biodiversity at the regional scale; b. Cooperation with FAO and regional fisheries management organizations (RFMO) to address environmental impacts of fisheries and promote an ecosystem management approach;

8

-​

9

-​

RSSD (2013–​2016)

c. Participation in the Coral Reef Initiative and the implementation of the SIDS Mauritius Strategy, as appropriate.

-​

Recognize the need for economic valuation of marine and coastal ecosystem services for decision-​making and policy formulation. Facilitating the mainstreaming of its activities within broader development and economic planning processes including the poverty reduction strategies in developing countries.

-​

-​

9 The UN World Tourism Organization and Global Ocean Governance The UNWTO Legal Office*

9.1  An Introduction to UNWTO: General Overview 9.1.1 Introduction The United Nations World Tourism Organization (UNWTO) is the outcome of the transformation of the International Union of Official Travel Organizations (IUOTO) in 1975, when the Statutes of the World Tourism Organization (WTO), adopted by the IUOTO at the Extraordinary General Assembly held in 1970, entered into force. In 2003 the UNWTO became a specialized agency of the United Nations with the approval and adoption of its General Assembly’s resolution 453 (XV) and the subsequent ratification by the United Nations General Assembly (UNGA) in resolution 58/​232. In order to avoid confusion with the World Trade Organization, also known as the WTO, it changed its acronym to UNWTO. The Convention on the Privileges and Immunities of the Specialized Agencies was adopted by the UNGA in 2005 and its Annex XVIII, relating to UNWTO, entered into force in 2008. UNWTO is headquartered in Madrid, with a current membership of 158 member states, six associate members, two permanent observers (Palestine and the Holy See), and around 500 affiliate members representing the private sector, educational institutions, tourism associations, and local tourism authorities. The official languages of the UNWTO are Arabic, English, French, Russian, and Spanish.

9.1.2 Aims According to its Statutes, the fundamental aim of the UNWTO is the promotion and development of tourism, with a view to contributing to economic development, international understanding, peace, prosperity, and universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. In pursuing this aim, the UNWTO shall pay particular attention to the interests of the developing countries in the field of tourism. In doing so, the UNWTO serves as a global forum for tourism policy issues and by encouraging the implementation of the Global Code of Ethics for

*   This chapter has been prepared by Mr Miguel Angel Susino, legal associate at the UNWTO Legal Office, under the coordination of Ms Alicia Gómez, legal counsel of the UNWTO, and with the collaboration of Ms Carmen Varo, legal associate at the UNWTO Legal Office. All information contained herein is dated October 2017.

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Tourism—​recognized by the UNGA in its resolution 56/​212—​helps to ensure that member states, tourist destinations, and the business community maximize the positive economic, social, and cultural effects of tourism and fully reap its benefits, while minimizing its negative social and environmental impacts. The UNWTO Executive Council adopted in May 20161 the following objectives as the priorities of the UNWTO for the period 2016–​2017: 1. Promoting safe and seamless travel: The tourism sector is increasingly affected by safety and security concerns and risks while a growing number of destinations face the impact of natural and man-​made crises which threatened the sector and its benefits. Security concerns may on the other side impact the recent advances registered in travel facilitation around the world. Priority should be given to activities that promote the inclusion of tourism into the national, regional and international safety and security agenda, crisis preparedness and management including crisis communications while ensuring increased ease of travel in terms of both visa facilitation and connectivity. 2. Enhancing the role of technology in tourism:  Technology developments are changing consumer behaviours, business models and destination management. Priority should be given to actions that develop and promote the sharing of knowledge about the impact of technology on the above. 3. Linking growth and sustainability and promoting tourism as a tool for development: The role of tourism in advancing the SDGs, the expansion of the Tourism Observatories and the 10 YFP activities should be geared towards promoting sustainable tourism policies and practices while advocating that ‘growth and sustainability are not at odds’. In view of the declaration of 2017 as the International Year of Tourism for Development, priority should also be given to actions which can contribute to enhance the knowledge on the links of tourism with development and advocacy of the role of tourism in promoting development.

Furthermore, the UNWTO is currently coordinating the drafting and adoption of its first two international treaties:  the Framework Convention on Tourism Ethics (approved by the UNGA in 2017) and the Convention on the Protection of Tourists and Tourism Service Providers.

9.1.3 Structure and governance The UNWTO consists of three main organs: the UNGA, the Executive Council, and the Secretariat.

1   The priorities and management vision for 2016–​2017 were adopted by the Executive Council at its 103rd session in Málaga, Spain, in May 2016 [CE/​DEC/​103/​3(c)]; in line with the Programme of Work approved by the UNGA at its 21st session in Medellín, Colombia, in September 2015 [A/​21/​8(I)(a)].



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(a) General Assembly The UNGA is the principal organ of the UNWTO. It meets every two years to approve the budget, programme of work, and membership, as well as to debate topics of vital importance to the tourism sector. The UNGA is composed of full members and associate members, among which only the former hold the right to vote. Affiliate members and representatives of other international organizations participate as observers. In line with the practice of other international organizations, the UNGA established six subsidiary organs, the Regional Commissions,2 enabling member states from each geographical area to maintain contact with one another and with the Secretariat between sessions of the UNGA (normally meeting once a year), to which they submit their proposals and convey their concerns. Each Commission elects one chairman and its vice chairmen from among its members for a term of two years commencing from one session to the next session of the Assembly.

(b) Executive Council The Executive Council is the governing board of the UNWTO, responsible for ensuring that the UNWTO carries out its programme of work and adheres to its budget. It meets at least twice a year and is composed of members elected by the General Assembly in a ratio of one for every five full members. It takes all necessary measures, in consultation with the Secretary-​General, for the implementation of its own decisions and recommendations of the Assembly, and reports thereon to the Assembly. As the UNGA, the Executive Council established subsidiary committees for UNWTO members to advise on management and programme content. These committees include: the Programme and Budget Committee; the Committee on Statistics and the Tourism Satellite Account; the Committee on Tourism and Competitiveness; the Committee on Tourism and Sustainability; the Committee on Poverty Reduction; and the Committee for the Review of Applications for Affiliate Membership.

(c) Secretariat The Secretariat is headed by the Secretary-​General, who is appointed for a four-​year term, renewable once. From 1 January 2010 to 31 December 2017 this position was held by Mr Taleb Rifai. In 2017 the UNGA appointed Mr Zurab Pololikashvili to the post of Secretary-​General for the period 2018–​2021. At present there are about 100 full-​t ime staff at the UNWTO. These officials are responsible for implementing the UNWTO programme of work and serving the needs of members. The Secretariat also includes a regional support office for Asia-​Pacific in Osaka, Japan, established in 1995 and financed by the Japanese Government, which, in 2012, moved to its current location in Nara, Japan. The Office coordinates the UNWTO’s priorities in 2   The Regional Commissions represent Africa, the Americas, East Asia, and the Pacific, Europe, the Middle East, and South Asia.

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the region, supports the Regional Programme for Asia and the Pacific, and promotes sustainable policies and practices in order to maximize tourism’s socio​economic contribution, while minimizing its possible negative impacts. Furthermore, in 2015, the UNWTO Secretariat decided to assign a liaison officer in Geneva, Switzerland, with the aim of further enhancing its UN-​related coordination and cooperation efforts and strengthening the UNWTO’s advocacy and resource mobilization capacities, in close collaboration with the Secretariat’s New York Liaison Office.

9.1.4 Membership Membership of the UNWTO is open to full members, associate members, and affiliate members. All sovereign states may be able to apply for ‘full membership’ of the UNWTO. ‘Associate membership’ is open to all territories not responsible for their external relations and whose candidature has prior approval of the member state that assumes responsibility for their external relations. ‘Affiliate membership’ is open to the private sector, educational institutions, tourism associations, and local tourism authorities whose activities are related to the aims of the UNWTO. There are currently around 500 affiliate members representing all aspects of the tourism industry, ranging from industry associations to airlines, travel agencies to consultants, and trade unions to universities. The original founders had a unique vision for the UNWTO—​a leadership body for the tourism sector which, apart from its full members who are state representatives, includes affiliate members who may be from the private sector, academia, and civil society. The affiliate members are expected to promote public–​private partnerships that help to support the UNWTO’s overall aims, including promoting responsible, sustainable, and universally accessible tourism and contributing to economic and social development and international understanding, with particular attention paid to the interests of the developing countries. The involvement of these members is an indication of the UNWTO support for the involvement of civil society in the network of global institutions, as encouraged by the United Nations.

9.2  UNWTO and Sea-​related Tourism 9.2.1 Tourism and sustainable development goals The UNWTO is placing its efforts and tireless work in contributing with its technical assistance and capacity building to the achievement of seventeen sustainable development goals (SDGs), that aim, inter alia, to end poverty, protect the planet, and ensure prosperity for all. The UNWTO is working with governments, public and private partners, development banks, international and regional finance institutions, the UN agencies, and international organizations to help achieve the SDGs, placing an emphasis on SDG Nos 8, 12, and 14, in which tourism is featured:



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(a) Goal 8: Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all Tourism is one of the driving forces of global economic growth, and currently accounts for one in eleven jobs worldwide. By giving access to decent work opportunities in the tourism sector, society—​particularly youth and women—​can benefit from enhanced skills and professional development. The sector’s contribution to job creation is recognized in target 8.9: ‘By 2030, devise and implement policies to promote sustainable tourism that creates jobs and promotes local culture and products’.

(b) Goal 12: Ensure sustainable Consumption and Production patterns A tourism sector that adopts sustainable consumption and production (SCP) practices can play a significant role in accelerating the global shift towards sustainability. To do so, as set in target 12(b) of SDG No 12, it is imperative to ‘[D]‌evelop and implement tools to monitor sustainable development impacts for sustainable tourism which creates jobs, promotes local culture and products’. The Sustainable Tourism Programme (STP) of the 10-​Year Framework of Programmes on Sustainable Consumption and Production Patterns (10 YFP) aims at developing such SCP practices, including resource efficient initiatives that result in enhanced economic, social and environmental outcomes.

(c) Goal 14: Conserve and sustainably use the oceans, seas and marine resources for sustainable development Coastal and maritime tourism, tourism’s biggest segments, particularly for small island developing states (SIDS), rely on healthy marine ecosystems. Tourism development must be a part of integrated coastal zone management in order to help conserve and preserve fragile ecosystems and serve as a vehicle to promote the blue economy, in line with target 14.7: ‘by 2030 increase the economic benefits of SIDS and LCDs from the sustainable use of marine resources, including through sustainable management of fisheries, aquaculture and tourism’. During the General Assembly held in Chengdu (China) in 2017, the UNWTO member states endorsed the Declaration on Tourism and the Sustainable Development Goals, which, by underlining the potential of the tourism sector in economic, social, and political terms, recommended governments to develop an integrated and holistic approach to tourism policy in order to leverage the sector’s positive impact and multiplying effect on people, planet, and prosperity; and proposed to undertake national assessments on tourism’s contribution and commitment to the SDGs.

9.2.2 Ocean governance and sea-​related tourism In general, coastal areas provide the main tourism resource, with the greatest concentration of tourism investment and facilities. One of the main reasons is that visitors are

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strongly attracted by coastal environments (eg beaches, fine landscapes, coral reefs, birds, fish, marine mammals, and other wildlife) and by associated cultural interests (eg coastal towns, villages, historic sites, ports, fishing fleets and markets, and other aspects of maritime life). Notwithstanding the above, the UNWTO is not currently undertaking any specific projects on the development of ‘ocean governance’ and no reference thereto has been included to the Programme of Work 2015–​2017. However, sustainable governance and management of marine-​related tourism has been a key topic in many activities and projects carried out by the UNWTO with its member states and other international organizations. From 2011 to 2013, the UNWTO undertook desk and field research on the mechanisms for sustainable tourism governance and management in coastal areas of Africa.3 The research was carried out as part of the GEF funded Collaborative Actions for Sustainable Tourism (COAST) project.4 The project, implemented in collaboration between the United Nations Environment Programme (UNEP), the United Nations Industrial Development Organization (UNIDO), and the UNWTO, had the aim of supporting and enhancing the conservation of globally significant coastal and marine ecosystems and associated biodiversity in sub-​Saharan Africa, through the reduction of negative environmental impacts, which may be caused as a result of coastal tourism. The following nine countries were involved in the project: Cameroon, The Gambia, Ghana, Nigeria, and Senegal (in West Africa), and Kenya, Mozambique, the Seychelles, and Tanzania (in East Africa). The study undertaken as part of the COAST project took its approach and direction partly from the UNWTO and UNEP publication, ‘Making Tourism More Sustainable: A Guide for Policy Makers’,5 which contains guidelines on governance structures, sustainability aims, and management instruments relevant to all types of destination. The aforementioned research included the following conclusions:

(i) Effective governance of sustainable coastal tourism requires a coherent policy framework to guide and drive action and appropriate bodies to see that the policies are implemented. To strengthen policy frameworks for sustainable coastal tourism, it should be ensured that development policies accurately identify the role of sustainable tourism and that sustainability aims are mainstreamed in updated tourism policies. Similarly, coastal tourism opportunities and challenges should be clarified in national tourism policies and strategies. Specific emphasis needs to be placed on destination-​level sustainable tourism planning and action, and wider policies and legislation needs to be pursued to support transparent land use planning and tourism development processes.

3   World Tourism Organization (2013), Sustainable Tourism Governance and Management in Coastal Areas ofAfrica, UNWTO, Madrid. 4   The COAST Project: http://​coast.iwlearn.org/​en/​about. 5   UNEP and WTO (2005), Making Tourism More Sustainable: a Guide for Policy Makers.



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(ii) A  primary requirement for governance structures for sustainable coastal tourism is the effective engagement of different stakeholder interests at all levels, while clarifying roles and responsibilities and ensuring sufficient capacity to deliver. Strong liaison and coordination should be maintained between government ministries, departments and agencies on tourism and environment issues, and the private sector should be encouraged to engage with sustainability, for example through public–​private coordination bodies. The development and operation of multi-​stakeholder destination management bodies can be seen as a key to effective sustainable tourism governance and management at destination level. (iii) All countries have procedures in place for the assessment and control of development on the coast, but this could be significantly strengthened to make the process more effective, while also encouraging positive sustainable tourism development outcomes. Effective application of EIAs for coastal tourism developments can be strengthened by clarifying and being consistent about EIA requirements and procedures for tourism projects while also strengthening community consultation and engagement in EIAs. (iv) Practical guidelines should be drawn up by tourism ministries on the kinds of development considered most suitable to particular types of location, including guidance on design, impact on biodiversity, energy, water and waste management. Developers should be provided with a single point of contact that can help guide the procedure and provide advice on requirements. In some countries development promotion agencies can fulfil this function. There is potential to use financial incentives, such as conditional tax relief, to influence both the development and operation of tourism businesses. To improve the monitoring of the operation of tourism enterprises, the reach and potency of inspection processes should be strengthened and enterprises should be stimulated and assisted to improve their environmental and sustainability management. (v) Several coastal management issues, including waste management, coastal erosion and biodiversity conservation, may have a strong bearing on the future of coastal tourism in destinations. These issues can be addressed by generating resources from tourism to support conservation and management and by raising awareness and facilitating community engagement in conservation and management. The delivery of benefits to local communities from tourism should be seen as an important sustainability goal in its own right. This can be encouraged through strengthening supply and demand conditions for growing local employment, building and maintaining local supply chains, managing informal local trading and fostering community-​ based initiatives that meet conditions for sustainability and success. (vi) The overall responsibility for the proposed actions to improve governance and management for sustainable coastal tourism in Africa should rest with government, who should provide the policy and legislative framework for protection and sustainable development, and ensure that effective management

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processes are in place. Of course, tourism enterprises and their associations should also commit to acting responsibly towards the environment and communities, backing this up with appropriate action. In addition, NGOs and civil society bodies have potentially a very important role to play in the area of facilitation and capacity building. A key opportunity is the involvement of local NGOs in destinations to bring together the different interests and provide assistance and expertise. Academic and research bodies, training institutions and local consultants can also provide highly valuable knowledge and services. (vii) Last but not least, international agencies should continue to help African nations in the planning and management of tourism on their coasts. They should recognize tourism as a key issue linking the economy and the environment, relevant to international programmes in both these fields. International assistance can help both through providing financial and technical support, and through enabling the sharing of experience and knowledge between countries.

9.2.3 Sustainable development of tourism ‘Sustainable tourism’ can be defined as ‘tourism that takes full account of its current and future economic, social and environmental impacts, addressing the needs of visitors, the industry, the environment and host communities’. Sustainable tourism development guidelines and management practices are applicable to all forms of tourism in all types of destinations, including mass tourism and the various niche tourism segments, including ocean-​related tourism. Sustainability principles refer to the environmental, economic, and socio-​cultural aspects of tourism development, and a suitable balance must be established between these three dimensions to guarantee its long-​ term sustainability. The UNWTO’s Programme on Sustainable Development of Tourism, headed by Mr Márcio Favilla, is currently undertaking several projects and activities on the following fields of work, some of which involve maritime-​related tourism: • UNWTO International Network of Sustainable Tourism Observatories (INSTO) • ecotourism and protected areas • tourism and SIDS • tourism and wetlands • tourism and climate change.

(a) UNWTO International Network of Sustainable Tourism Observatories (INSTO) The 2012 United Nations Conference on Sustainable Development (Rio+20) highlighted the importance of obtaining more reliable, relevant, and timely data in areas related to the three dimensions of sustainable development and acknowledged the potential of tourism to make a significant contribution in this regard. The outcome



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document, The Future We Want, was endorsed by UNGA, under resolution A/​R ES/​ 66/​288 of 27 July 2012.6 In 2014, the UNGA’s resolution 69/​ 233, ‘Promotion of sustainable tourism, including ecotourism, for poverty eradication and environment protection’, invited governments to support better informed sustainable policy-​making around the world and emphasized the contribution of sustainable tourism to poverty eradication, community development, and the protection of biodiversity. One year later, the sector’s role as important driver for sustainable development was further strengthened through UNGA’s resolutions 69/​313, ‘Addis Ababa Action Agenda’, and resolution 70/​ 1, ‘Transforming Our World: the 2030 Agenda for Sustainable Development’, which highlighted the importance of supporting better informed sustainable policy around the world, of applying creativity and innovation to solve sustainable development challenges, and to monitor sustainable development impacts for various economic activities, including sustainable tourism. The UNWTO has been promoting the use of sustainable tourism indicators since the early 1990s, as essential instruments for policy-​making planning and management processes at destinations. However, it was not until 2014 that the UNWTO launched the concept of the UNWTO International Network of Sustainable Tourism Observatories (INSTO), previously referred to as the Global Observatories on Sustainable Tourism (GOST), in order to provide policy-​makers, tourism managers, and other relevant stakeholders with key tools to strengthen institutional capacities to support the formulation and implementation of sustainable tourism policies, strategies, plans, and management processes related to tourism’s impacts on environmental, social, and economic aspects in destinations. At the same time, the UNWTO launched the Guidebook on Indicators of Sustainable Development for Tourism Destinations,7 which is the most comprehensive resource on this topic, and the result of an extensive study on indicator initiatives worldwide, involving sixty-​two experts from more than twenty countries. The publication describes over forty major sustainability issues, ranging from the management of natural resources (waste, water, energy etc), to development control, satisfaction of tourists and host communities, preservation of cultural heritage, seasonality, economic leakages, and climate change, to mention only a few. For each issue, indicators and measurement techniques are suggested with practical information sources and examples. As evidence-​ based decision-​ making is of utmost importance for sustainable tourism development, the vision behind the INSTO initiative highlights the key role that observatories play as an essential instrument to continuously enhance the sustainability of the tourism sector. Observatories have the potential to stimulate and catalyse innovative developments in destinations and play a key role in contributing to monitoring and addressing issue areas, such as job creation, sustainable consumption

  See also UNDESA’s Division for Sustainable Development’s website: https://​sustainabledevelopment.un.org/​rio20.html. 7  WTO (2004), Indicators of Sustainable Development for Tourism Destinations: A Guidebook, UNWTO, Madrid. 6

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and production, public health and security, human rights, education quality, and inequalities.

(b) Ecotourism and protected areas The UNWTO has been involved in the field of ecotourism since the early 1990s and developed a set of guidelines focusing on the strong link between protected areas and tourism, with the aim of ensuring that tourism contributes to the purposes of protected areas and does not undermine them. In 2002, under the framework of the UN-​declared International Year of Ecotourism, the UNWTO undertook a wide range of activities, including the organization of regional conferences and the World Ecotourism Summit, and published guidelines8 and methodologies for ecotourism development and market studies9, as well as supporting regional and national activities. At the request of the UNGA, the UNWTO prepared a report on the activities undertaken by states and major international organizations in the framework of the International Year of Ecotourism.10 Also, the UNWTO prepared a series of market reports to increase the knowledge of seven important countries considered to be ‘ecotourism generating markets’. (i) The UNGA Resolution ‘Promotion of ecotourism for poverty eradication and environment protection’ In 2012 the Second Committee (Economic and Financial) of the UN General Assembly adopted the resolution 65/​173, ‘Promotion of ecotourism for poverty eradication and environment protection’, which draws on the recommendations contained in a report prepared by the UNWTO on the basis of responses from forty-​eight member states. Recognizing that ecotourism, within the framework of sustainable tourism, is a cross-​cutting activity able to promote job creation and education, the resolution highlights its potential to improve livelihoods in local communities and achieve the millennium development goals (MDGs), as well as contribute to the sustainable development and protection of biodiversity by encouraging communities and tourists to preserve natural and cultural heritage. The text also underlines the importance of establishing national policies and investments for promoting ecotourism, and encourages governments to use it as a tool for poverty alleviation and environmental protection. It calls on international financial institutions and the UN system to provide

8   UNWTO, ‘Compendium of Best Practices and Recommendations for Ecotourism in Asia and the Pacific’ (2002); UNWTO, ‘Sustainable Development of Ecotourism: A Compilation of Good Practices in SMEs’ (2003). 9   UNWTO, ‘The British Ecotourism Market’ (2001); UNWTO, ‘The German Ecotourism Market’ (2002); UNWTO, ‘The Canadian Ecotourism Market’ (2002); UNWTO, ‘The French Ecotourism Market’ (2002);UNWTO, ‘The Italian Ecotourism Market’ (2002); UNWTO, ‘The Spanish Ecotourism Market’ (2002); UNWTO, ‘The U.S. Ecotourism Market’ (2002). 10   UNGA, ‘Assessment of the results achieved in realizing aims and objectives of the International Year of Ecotourism’, UN Doc A/​58/​96 (2002).



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adequate support for programmes relating to ecotourism and on strengthened partnerships for providing adequate capacity building and training for people involved in the sector. In 2014 a milestone resolution recognizing the contribution of sustainable tourism to poverty eradication, community development, and the protection of biodiversity was adopted by consensus by the UNGA. The resolution 69/​233, ‘Promotion of sustainable tourism, including ecotourism, for poverty eradication and environment protection’, significantly broader in scope than previous ones on the subject, builds on the 2012 UN resolution on ecotourism and draws on a report prepared by the UNWTO. In line with UNWTO recommendations, it underlined the importance of appropriate national policies, guidelines, and regulations for promoting sustainable tourism, including ecotourism, and encourages UN member states and regional and international financial institutions to support sustainable tourism projects, enabling the creation of small and medium-​sized enterprises, promoting cooperatives, and facilitating access to inclusive financial services, including microcredit initiatives for the poor, local, and indigenous communities.

(c) Tourism and small island developing states (SIDS) Islands are a top destination for millions of tourists each year. Their special geographical situation and their natural and cultural heritage richness make them unique for visitors, but at the same time, confront them with a number of challenges and vulnerabilities. In particular, SIDS vary greatly in their economic and social performance and their level of international visitor arrivals but many demonstrate a high level of dependence on tourism in terms of exports and contribution to GDP. They present three key characteristics: small size, with implications for pressure on resources and limited economic diversity; remoteness and isolation, leading to challenges for trading but also to a unique biodiversity and cultural richness; and a maritime environment, leading to strong tourism assets but vulnerability to climate change. There are four key distinctive challenges for islands: the crucial role of tourism in the sustainable development of islands, following the approach of the Rio+20 Conference, which paid specific attention to tourism and its contribution to sustainable development; climate change, which is a great threat to many islands and requires a response from the tourism sector; air connectivity, requiring a strong link between tourism and air transport policies; and market positioning, including tourism products, diversification, and establishment of niche markets that would contribute to competitiveness and decrease vulnerability. Information on the importance of tourism in SIDS and on the wide range of issues affecting its contribution to their sustainable development was consolidated by the UNWTO in the publication ‘Challenges and Opportunities for Tourism in Small Island Developing States’.11 Launched on the occasion of the Rio+20 Conference, this

  UNWTO, ‘Challenges and Opportunities for Tourism in Small Island Developing States’ (2012).

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publication presents an overview of the status of tourism in SIDS, while providing evidence of the key importance tourism has for the sustainable development of many islands and for the achievement of the MDGs. It also provides policy orientations, guidelines, and other tools to the various tourism stakeholders in SIDS on how to address the challenges SIDS face and how to develop and manage tourism in a sustainable manner for the benefit of local communities and for maximizing visitors’ experience. (i) Meetings and conferences The UNWTO actively participated in the United Nations Global Conference on the Sustainable Development of SIDS (Barbados, 25 April to 6 May 1994) and successfully encouraged delegates to focus on tourism in the Barbados Programme of Action. In 1998 the International Conference on Sustainable Tourism in Small Island Developing States (SIDS) and other Islands was convened jointly by the UNWTO with UNEP in Lanzarote, Spain. Based on its resolutions, regional meetings were organized in collaboration with UNEP such as Sustainable Tourism and Competitiveness in the Islands of the Mediterranean, Island of Capri, Italy, 17–​20 May 2000 and the International Conference on Sustainable Tourism in the Islands of the Asia-​Pacific Region, held in Sonya, Island of Hainan, China, 6–​8 December 2000. Various regional workshops on sustainability indicators of tourism development were based on demonstration study sites at coastal and island destinations selected by host countries, providing valuable experiences for sustainable coastal and island tourism development. In 2005 the UNWTO organized a tourism side event in conjunction with the International Meeting to Review the Implementation of the Programme of Action for the Sustainable Development of Small Island Developing States, held in Port Louis, Mauritius, from 10 to 14 January 2005 and provided inputs to the Mauritius Strategy, which elaborates on a wide variety of actions under twenty broad headings, most of them with implications for the tourism sector, ranging from climate change and natural and environmental disasters to resource management (coastal, marine, land, energy, tourism, and biodiversity), transport and communication, graduation from least developed country status, sustainable capacity development, and sustainable production and consumption. The UNWTO also launched a special report under the title ‘Making Tourism Work for Small Island Developing States’,12 examining the economic dimension of tourism in small island states, as well as its environmental and socio-​cultural implications. This report provides evidence of the key importance tourism has for the sustainable development of many islands and for the achievement of the UN MDGs. It also addresses the key issues that need to be considered by small island nations and provides policy orientations, guidelines, and other tools to the national tourism authorities, the tourism industry, and other tourism stakeholders in SIDS on how to develop and manage tourism in a sustainable manner for the benefit of their population. 12

  WTO (2004), Making Tourism Work for Small Island Developing States.



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(ii) The United Nations Conference on Small Islands Developing States As the UN specialized agency for tourism, the UNWTO played a significant role at the United Nations Conference on Small Islands Developing States, held in Apia, Samoa, from 1 to 4 September 2014.13 In view of this conference, the UNWTO coorganized two Conferences on Sustainable Development of Tourism in Islands in September 2013 and February 2014—​respectively in Réunion Island and Nassau—​ to provide guidance to national tourism authorities and the international community. On the occasion of these conferences, two declarations have been adopted—​t he Réunion Island Declaration on Sustainable Tourism in Islands and the Nassau Declaration on Tourism as a Key Sector for Development in Island States. In Samoa, the UNWTO delegation, which included Dr Michael Frenzel, chairman of the World Travel and Tourism Council, participated in key events, meetings, and activities at the margins of the UN Conference on SIDS. The UNWTO Secretary-​ General, Mr Taleb Rifai, moderated the high-​level side event of the United Nations System Chief Executives Board for Coordination ‘The UN system partnering for the people of SIDS’, held on 1 September. Sustainable economic development, climate change, disaster risk management, and social development were the main thematic clusters discussed by the executive heads of the United Nations agencies, funds, and programmes.

(d) Tourism and wetlands Wetlands are home to some of the richest biodiversity on the planet and the ecosystem services they provide play an essential role in sustainable development impacting directly the lives of millions of people worldwide, most especially the poor, who depend on the essential ecosystem services wetlands provide. In recognition of the interdependence between sustainable tourism and the conservation and sustainable management of wetlands, in February 2010, the UNWTO signed a memorandum of cooperation with the Secretariat of the Convention on Wetlands (also known as Ramsar). The enhanced cooperation between both organizations facilitates the development of project proposals and joint initiatives aimed at reinforcing the role of wetlands and their biodiversity ecosystems for sustainable tourism development. At the 11th Conference of Parties of the Convention on Wetlands (2012) in Bucharest, its Secretary General, Anada Tiéga, the Secretary-​General of the UNWTO, Taleb Rifai, and the Romanian Secretary of State for Regional Development and Tourism launched the publication ‘Destination Wetlands: Supporting Sustainable Tourism’.14 This publication contains

13  For further information on the UNWTO’s participation and role at the United Nations Conference on Small Islands Developing States see http://​sdt.unwto.org/​content/​tourism-​a nd-​small-​ islands-​developing-​states-​sids. 14   UNWTO and the Ramsar Convention on Wetlands, Destination Wetlands: Supporting Sustainable Tourism (2012).

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references to existing guidelines on sustainable tourism as well as many other useful materials on developing and managing sustainable tourism. It is relevant to wetland site managers, tourism, and wetland policy-​makers and planners, and the private sector (including those investing in, operating, or developing tourism in wetlands). Despite the diversification of the global tourism market and the growing importance of special interest forms of tourism, coastal and beach tourism is still the dominant segment in terms of number of tourists. Coastal and island destinations experience an increasing pressure on their natural and cultural resources, owing to the ever-​increasing demand and tourist activities that are highly concentrated in time and space (seasonality, infrastructure, and tourism operations in a narrow coastal zone). Therefore, the UNWTO has been promoting tourism development as part of integrated coastal zone management practices, through international and regional collaboration, technical cooperation, research, and capacity building activities.

10 The Work of WIPO and Its Possible Relevance for Global Ocean Governance Claudio Chiarolla*

This contribution to the IMLI Treatise on Global Ocean Governance addresses the following key questions. Is there a place for intellectual property (IP) considerations in regard to global ocean governance? And if so, which role should the World Intellectual Property Organization (WIPO) play, as the competent UN agency responsible for the development of a balanced and effective international IP system, in strengthening the contribution of IP to the global governance of oceans, in line with Sustainable Development Goals No 14 (Life below water)?

10.1  What is WIPO? In its awareness-​raising materials, the WIPO describes itself as the global forum for IP services, policy, information, and cooperation. The WIPO’s mission is ‘to lead the development of a balanced and effective international IP system that enables innovation and creativity for the benefit of all’.1 Established in 1967, the WIPO is one of the oldest specialized agencies of the UN, with 189 member states that formally determine the direction, budget, and activities of the WIPO through its decision-​making bodies. Its headquarters are located in Geneva, Switzerland, with one coordination office in New York in the United States of America, and five external offices in Brazil, China, Japan, Moscow, and Singapore.2 The WIPO’s activities can be clustered under two main categories:3 first, normative activities concerning the progressive development of the international IP system through policy dialogue and multilateral negotiations;4 and, secondly, the provision of services to member states and stakeholders. The latter category includes the following:

*   Disclaimer: The author undertook, completed, and submitted this study for publication in December 2016, while he was employed as Legal Officer in the Traditional Knowledge Division at the WIPO. The views expressed in this chapter are the author’s own and do not necessarily reflect the views of WIPO or any of its member states. 1   WIPO website, ‘What is WIPO?’ http://​w ww.wipo.int/​about-​w ipo/​en/​. 2   In addition, the establishment of two new external offices in Algeria and Nigeria was recently agreed to by the 2016 General Assemblies. 3   Carolyn Deere Birkbeck, The World Intellectual Property Organization (WIPO): A Reference Guide (Edward Elgar Publishing 2016) 11, 28–​31. 4  WIPO website, ‘Decision-​making and Negotiating Bodies’ http://​w ww.wipo.int/​policy/​en/​index. html#bodies.

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(i) fee-​based services for the protection of IP in multiple countries5 and for the resolution of disputes6 (ii) support of national agencies and IP offices for the establishment and maintenance of the global IP infrastructure7 (iii) the provision of IP-​related information (eg through global databases)8 (iv) the provision of capacity building9 and technical assistance10 for the implementation of IP-​related treaties—​including the World Trade Organization (WTO) Agreement on Trade-​related Aspects of Intellectual Property Rights (TRIPs)11—​ at the national and regional levels (v) activities concerning the facilitation, enablement, and hosting of multi-​stakeholder platforms and public–​private partnerships.12 Importantly, the WIPO provides secretariat services for its twenty-​six WIPO-​ administered treaties, including the WIPO Convention.13 As regards the financial situation of the WIPO, the organization ended the 2014–​ 2015 biennium with an overall surplus of CHF 70.3 million, while its net assets continued to grow over the above period and stood at CHF 279.1 million at the end of 2015.14 Against this backdrop, the WIPO stands out as the most successful self-​funding agency within the UN, with about 95 per cent of its budget deriving from income generated by fee-​paid IP registration services.15 See Figure 10.1 below. In addition to serving traditional UN stakeholders and beneficiaries, the WIPO nurtures a unique service orientation focus and a special relationship with its private customers, comprising private sector clients as well as other IP-​intensive research and development sectors, to which it provides services for, inter alia, the international registration of trademarks, industrial designs and, more importantly, to facilitate

  WIPO website, ‘IP Services’ http://​w ww.wipo.int/​services/​en/​.   The WIPO Arbitration and Mediation Center was established in 1994 to offer Alternative Dispute Resolution (ADR) options for the resolution of international commercial disputes between private parties. The arbitration, mediation, and expert determination procedures offered by the Center are widely recognized as particularly appropriate for technology and other disputes involving intellectual property. See WIPO website http://​w ww.wipo.int/​a mc/​en/​center/​background.html. 7   WIPO website, ‘Global IP Infrastructure’ http://​w ww.wipo.int/​global_​ip/​en/​. 8   WIPO is the world’s most comprehensive source of data on the IP system, as well as of empirical studies, reports, and factual information on IP. See WIPO website, ‘Reference’ http://​w ww.wipo.int/​reference/​en/​. 9   WIPO website, ‘Capacity Building’ http://​w ww.wipo.int/​cooperation/​en/​capacity_​building/​. 10   WIPO website, ‘Technical Assistance’ http://​www.wipo.int/​global_​ip/​en/​activities/​technicalassistance/​. 11   See the agreement between the World Intellectual Property Organization and the World Trade Organization of 22 December 1995 http://​w ww.wipo.int/​treaties/​en/​text.jsp?file_​id=305457 and WIPO website, ‘Advice on Flexibilities under the TRIPs Agreement’ http://​w ww.wipo.int/​ip-​development/​en/​ legislative_​assistance/​advice_​trips.html. 12  WIPO website, ‘Multi-​ stakeholder Platforms’ http://​w ww.wipo.int/​cooperation/​en/​multi_​stakeholder_​platforms/​ 13   WIPO website, ‘WIPO-​administered Treaties’ http://​w ww.wipo.int/​treaties/​en/​. 14   Report of the Director General to the 2016 WIPO Assemblies 2 http://​w ww.wipo.int/​publications/​ en/​details.jsp?id=4078. 15   WIPO Program and Budget 2016/​17 9: Share of Fee Income/​Total Income from 2004/​05 to 2016/​17 http://​w ww.wipo.int/​export/​sites/​w ww/​about-​w ipo/​en/​budget/​pdf/​budget_​2016_​2017.pdf. 5 6



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the filing of international patent applications in multiple countries via the Patent Cooperation Treaty (PCT).16 See Figure 10.2 below. 100% 98% 96% 94% 92% 90% 88% 86% 84% 82%

2004/05 Actual

2006/07 Actual

2008/09 Actual

2010/11 Actual

2012/13 Actual

2014/15 Est.

2016/17 Est.

All other income

11%

10%

10%

9%

8%

6%

5%

Fee income

89%

90%

90%

91%

92%

94%

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Figure 10.1  Share of fee income/​total income from 2004/​05 to 2016/​17. 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%

2004/05 Actual

2006/07 Actual

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26%

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74%

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Figure 10.2  Share of PCT fee income/​total income from 2004/​05 to 2016/​17.

In this regard, the scholarly literature on WIPO governance has highlighted that: [t]‌he result is a widely acknowledged tension between the quest to preserve the member-​driven character of the Organization, where Member States are the core constituency and focus of accountability, and the pressures to better serve WIPO’s 16

  ibid 10, Share of PCT Fee Income/​Total Income from 2004/​05 to 2016/​17.

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core private sector clients . . . and by extension the sub-​set of Member States that are the countries of origin for the majority of WIPO’s fee-​bases income.17

The WIPO Secretariat is therefore particularly careful to ensure that its core activities and external relations do not interfere with the exclusive role and prerogatives of its member states in the context of any global governance process, including in other external fora. Issues pertaining to the global governance of oceans would appear prima facie not to fit squarely within the purview of the WIPO’s work activities. However, a deeper assessment of selected substantive issues—​such as the governance of marine genetic resources (MGRs)18 of areas beyond national jurisdiction (ABNJs)—​as well as activities in support of scientific research, capacity building, and technology transfer may illustrate that the work of the WIPO in these areas could be beneficial for global ocean governance. Similarly, if it was further strengthened, such work would also enhance the WIPO’s contribution to the UN system as a whole, particularly by supporting member states’ implementation of the sustainable development goals (SDGs) under the 2030 Agenda for Sustainable Development. The end game boils down to the fact that by protecting healthy oceans we protect our own health since 70 per cent of the oxygen that we breathe from the atmosphere is actually produced by marine ecosystems (and by the organisms that live therein such as, in particular, marine plankton).19

10.1.1 Legal foundations and mandate The WIPO’s mandate, governing bodies, and procedures are set out in the 1967 WIPO Convention.20 Its objectives, as described in the Convention, are ‘[t]‌o promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization’ and ‘to ensure administrative cooperation among the Unions [administered by the WIPO21]’.22   Deere Birkbeck (n 3) 196.   ‘Genetic resources’ are defined in art 2 of the UN Convention on Biological Diversity (CBD) as ‘any material of plant, animal, microbial or other origin containing functional units of heredity of actual or potential value’. See also Claudio Chiarolla, ‘Genetic Resources’ in Elisa Morgera and Kati Kulovesi (eds), Research Handbook on International Law and Natural Resources (Edward Elgar Publishing 2016). 19   Matthew C Long, Curtis Deutsch, and Taka Ito, ‘Finding Forced Trends in Oceanic Oxygen’ (2016) 30 Global Biogeochem Cycles 381; Moritz Bollmann and others, ‘World Ocean Review, Living with the Oceans’ (2010) 44–​47 http://​worldoceanreview.com/​w p-​content/​downloads/​wor1/​WOR1_​english.pdf; John Toon, ‘Oceanic Oxygen: Feedback Effect on Marine Life May Affect Atmospheric Oxygen’ Georgia Institute of Technology (28 May 1996); Rebecca Lindsey and Scott Michon, ‘What are Phytoplankton?’ NASA (13 July 2010). 20   Convention Establishing the World Intellectual Property Organization, signed at Stockholm on 14 July 1967 and as amended on 8 September 1979 http://​w ww.wipo.int/​treaties/​en/​text.jsp?file_​id=283854. 21   There are the Paris Union (concerning the protection of Industrial Property), the Berne Union (concerning the Protection of Literary and Artistic Works), the Lisbon Union (concerning the International System of Appellations of Origin), and the Hague Union (concerning the International Registration of Industrial Designs), as well as the unions of the parties to ‘[a]‌ny other international agreement designed to promote the protection of [IP] whose administration is assumed by the Organization  . . .’:  WIPO Convention art 2. 22   WIPO Convention art 3. 17 18



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The WIPO, as a member state-​led, inter-​governmental organization, only joined the UN system in 1974, by becoming a specialized agency of the UN. In particular, the 1974 agreement between the UN and the WIPO recognizes the latter ‘[a]‌s a specialized agency and as being responsible for taking appropriate action in accordance with its basic instrument, treaties and agreements administered by it, inter alia, for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence and responsibilities of the United Nations and its organs . . .’.23 In addition to the WIPO Convention and the agreement with the UN, the WIPO Development Agenda and its forty-​five recommendations are also considered an important cornerstone in interpreting the WIPO’s mandate.24 The Agenda was established by the WIPO’s member states in 2007. The following year, the General Assembly also created a Committee on Development and Intellectual Property (CDIP) with a mandate to ‘develop a work-​program for implementing the 45 adopted recommendations; monitor, assess, discuss and report on their implementation; coordinate with relevant WIPO bodies for that purpose; and discuss relevant IP and development related issues’.25 On the one hand, it is worth noting that with the ‘adoption of the Development Agenda recommendations, the Organization, for the first time, formally acknowledged the importance of moving away from an agenda essentially limited to promotion and protection of [IP] rights, to embracing the need to assist developing countries in different aspects of this crucial area’.26 On the other hand, the acute polarization between various member states’ groups over the vision and way in which development activities should be mainstreamed into the work of the WIPO poses ‘[t]‌he challenge of integrating and balancing the interests of those countries which provide most of its financial income and those which place emphasis on development’.27 In light of the above, the WIPO’s mission was more recently described as follows: ‘The promotion of innovation and creativity for the economic, social and cultural development of all countries, through a balanced and effective international intellectual property system’.28 In particular, the WIPO’s Medium-​Term Strategic Plan for 2016–​2021 sets out that ‘[t]‌he Organization, within its mandate, contributes positively to global efforts to address major policy issues, such as climate change, health and food security [and] seeks to play a supportive and engaged role in the implementation of the SDGs’.29 In doing so, ‘the Organization will continue to provide factual, 23   Agreement between the United Nations and the World Intellectual Property Organization, art 1 http://​w ww.wipo.int/​treaties/​en/​text.jsp?file_​id=305623 24   WIPO website, Development Agenda for WIPO http://​w ww.wipo.int/​ip-​development/​en/​agenda/​ index.html 25   WIPO website, Committee on Development and Intellectual Property (CDIP) http://​w ww.wipo.int/​ policy/​en/​cdip/​ 26   Joint Inspection Unit, Review of management and administration in the World Intellectual Property Organization (Geneva, 2014)  JIU/​R EP/​2014/​2 10 https://​w ww.unjiu.org/​en/​reports-​notes/​JIU%20 Products/​JIU_​R EP_ ​2014_ ​2 _​%20English.pdf. 27  ibid 4. 28   WIPO, Medium-​Term Strategic Plan for WIPO for 2016–​2021 (document WO/​PBC/​25/​18) 4. 29   ibid 20–​21.

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technical assistance to other UN processes upon invitation or request, respecting the exclusive role of Member States to formulate policy positions where they do not already exist. . ..’30

10.1.2 Ocean-​related matters and WIPO: an uneasy fit? In the context of the institutional WIPO governance structure and legal framework, the concept of ocean governance, as such, is not addressed. The objectives of, and the key constituencies which are involved in the implementation of 1982 United Nations Convention on the Law of the Sea (UNCLOS), are different from those involved in the WIPO and concerned by the implementation of its IP-​related treaties. The WIPO’s mandate clearly focuses on the international IP system and on how it should be further developed and used to encourage innovators and creators—​arguably to make the world a better place to live in for present and future generations. Therefore, the question arises whether there is a place for IP considerations with regard to global ocean governance. Also, are there any links or—​at least—​some overlap areas between these different spheres of governance, namely those concerning the international IP system and the world’s oceans and their resources?

10.2  Global Ocean Governance and the Work of WIPO: Possible Inter-​relationships The ensuing sub-​sections will examine some key areas of overlap and possible inter-​ relationships between global ocean governance and the work of the WIPO from both normative and practical standpoints.

10.2.1 Normative work (a) Setting the scene: IGC deliberations on international instrument(s) for the protection of intellectual property and genetic resources, traditional knowledge and traditional cultural expressions The WIPO Inter-​governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (known as the IGC) is, in accordance with its mandate,31 undertaking text-​based negotiations with the objective of reaching agreement on a text (or texts) of an international legal instrument (or instruments),  ibid 22.   The recently renewed IGC Mandate for the Biennium 2016/​2017, as agreed by the Assemblies of member states of WIPO at their Fifty-​Fifth Session, which took place from 5 to 14 October 2015, states that: ‘The Committee will, during the next budgetary biennium 2016/​2017, continue to expedite its work, with a focus on narrowing existing gaps, with open and full engagement, including text-​based negotiations, with the objective of reaching an agreement on an international legal instrument(s), without prejudging the nature of outcome(s), relating to intellectual property which will ensure the balanced and effective protection of GRs, TK and traditional cultural expressions (TCEs)’. See WIPO, ‘Mandate of the IGC for the 2016/​2017 Biennium’ http://​w ww.wipo.int/​export/​sites/​w ww/​t k/​en/​igc/​pdf/​igc_​mandate_​1617.pdf. 30 31



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which will ensure the effective protection of traditional knowledge (TK), traditional cultural expressions (TCEs), and genetic resources (GRs). In the past few years, considerable consolidation of ideas surrounding the protection of traditional knowledge and on IP and genetic resources have been achieved in the IGC in the form of consolidated texts that have the potential to become new international legal instruments.32 However, notwithstanding such moderate progress, including through text-​based negotiations, no consensus has yet been reached between member states on the nature of the instrument. In relation to IP and genetic resources, since 2000, member states in the IGC have been debating the possibility of introducing an internationally harmonized patent disclosure requirement related to GRs and TK. Many countries have argued that the patent regime should help to prevent misappropriation and promote fair benefit sharing between holders of GRs and TK (mostly biodiversity-​rich countries and indigenous and local communities) and those with the modern technologies to access and use them.33 While consensus on the draft instrument(s) under discussion between member states has been elusive at the international level, growing concerns as to the misappropriation and unauthorized access and use of GRs and TK have led to the introduction of additional measures to strengthen or broaden the conventional disclosure obligations in national patent systems.34 In particular, several countries have required patent applicants to disclose, among other things: • the origin and/​or the source of GRs and/​or TK • evidence of prior informed consent (PIC) for their use, in connection to the claimed invention, from the provider country (and/​or the relevant indigenous and local communities, in accordance with national legislation) and/​or • evidence of having established a contractual arrangement (ie mutually agreed terms (MAT)) for the fair and equitable sharing of the benefit derived from such use—​if it is so required by the national legislation of the provider country. These additional disclosure obligations are generally referred to as patent disclosure requirements related to GRs and TK—​or, in short, PDRs.35 32   Daniel Robinson and Claudio Chiarolla, ‘The Role of Databases, Contracts and Codes of Conduct’ in Daniel Robinson, Pedro Roffe, and Ahmed Abdel-​Latif (eds), Protecting Traditional Knowledge: The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (Routledge 2016). 33   Claudio Chiarolla and Burçu Kiliç, ‘Key Questions on Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge’ (WIPO 2017). 34   The patent system is based on a theory that there is a bargain between the inventor and society, in which the latter grants the exclusivity to restrain others from using or making the invention for a limited period of time (generally the standard patent term is 20 years as from the filing of the application) in exchange of its full disclosure. By doing so, the patent system encourages disclosure of information that otherwise would remain secret. Historically, the interactions between patent law and biodiversity-​related legislation have been uncertain and, in some quarters, controversial. Where the subject matter of a patent application concerns or makes use of GRs or TK, doubts have been raised regarding the possible misappropriation of such GRs and TK through the patent system. See Chiarolla and Kiliç (n 33) section 2.1. 35   See eg WIPO Disclosure Requirements Table (April 2016) http://​w ww.wipo.int/​export/​sites/​w ww/​ tk/​en/​documents/​pdf/​genetic_​resources_​disclosure.pdf.

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At the time or writing, the most recent IGC meetings to consider the draft text on protection of IP and genetic resources, which includes various normative proposals to address PDR issues, were the 29th and 30th sessions of the IGC, which took place respectively from 15 to 19 February 2016 and from 30 May to 3 June 2016.36 The outcome document, namely, the ‘Second Revision of the Consolidated Document Relating to Intellectual Property and Genetic Resources (as at the close of IGC 30 on 3 June 2016)’,37 was transmitted to the 34th session of the IGC, which took stock of the progress made.38 The IGC then made a recommendation to the 2017 WIPO General Assembly, in accordance with the following mandate: In 2017, the Committee is requested to ‘[s]‌ubmit to the General Assembly the results of its work on an international legal instrument(s) relating to intellectual property which will ensure the balanced and effective protection of GRs, TK and TCEs. The General Assembly in 2017 will take stock of progress made, and decide on whether to convene a diplomatic conference or continue negotiations. It will also consider the need for additional meetings . . .’.39

The WIPO General Assembly, which took place from 2 to 11 October 2017, agreed on the renewal of the mandate of the IGC for the 2018/​2019 biennium.40 The 35th session of the IGC will take place from 19 to 23 March 2018, and it will undertake negotiations on GRs with a focus on addressing unresolved issues and considering options for a draft legal instrument.41 Within the purview of the IGC’s deliberations, the key policy issue of relevance to global ocean governance revolves around the following question: if a new WIPO international legal instrument were agreed on IP and GRs, should a patent disclosure requirement (under such instrument) apply to MGRs taken from ABNJs? Or, should instead its application be limited only to genetic resources whose origin or source is situated in areas within the limits of national jurisdiction? In particular, the IGC’s Consolidated Document on IP and GRs provides for a specific reference to ‘marine genetic resources in areas beyond national jurisdiction . . .’ as one of the proposed—​but not yet agreed—​exceptions and limitations under draft Article 4, ALT 4.1(e).42 The proponents of the above exception are of the view that if 36   WIPO, ‘Revised IGC Schedule for 2016’ http://​w ww.wipo.int/​export/​sites/​w ww/​t k/​en/​igc/​pdf/​igc_​ schedule_​2016.pdf. 37  WIPO, ‘Second Revision of the Consolidated Document Relating to Intellectual Property and Genetic Resources’ (as at the close of IGC 30 on 3 June 2016), WIPO/​GRTKF/​IC/​30/​FACILITATORS DOCUMENT http://​w ww.wipo.int/​meetings/​en/​doc_​details.jsp?doc_​id=340736. 38   See WIPO, ‘IGC 30 Report’, WIPO/​GRTKF/​IC/​30/​10, Decision on Agenda Item 7, which states that: ‘The Committee developed, on the basis of document WIPO/​GRTKF/​IC/​30/​4, a “Second Revision of the Consolidated Document Relating to Intellectual Property and Genetic Resources”. The Committee decided that this text, as at the close of the session on June 3, 2016, be transmitted to the Thirty-​Fourth session of the Committee, in accordance with the Committee’s mandate for 2016-​2017 and the work program for 2017, as contained in document WO/​GA/​47/​19’. 39   See WIPO, ‘Mandate of the IGC for the 2016/​2017 Biennium’ (n 31). 40   WIPO, ‘IGC Mandate 2018/​ 2019’ http://​w ww.wipo.int/​export/​sites/​w ww/​t k/​en/​igc/​pdf/​igc_​ mandate_​2018-​2019.pdf 41   WIPO, ‘Provisional Schedule for the IGC in 2018’ http://​w ww.wipo.int/​export/​sites/​w ww/​t k/​en/​igc/​ pdf/​igc_​2018_​prov_​schedule.pdf. 42   See WIPO, Second Revision of the Consolidated Document (n 37). Draft art 4.1 of the Consolidated Document states as follows:



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a WIPO IGC instrument was to be adopted, then its patent disclosure obligations should not apply to MGRs. An alternative option, which is also currently reflected in the text, is to introduce the possibility of adopting public interest-​related exceptions and limitations in general terms, without the need to list them in specific details in the instrument.43 Hence, with regard to definition of the material scope of any new patent disclosure obligations, the proponents of the latter option do not wish to achieve a complete harmonization at the international level. Instead, they may prefer to keep the flexibility to make determinations on relevant exceptions and limitations when implementing legislation at the national level. A third option would be not to allow any exceptions and limitations under the WIPO IGC instrument. This would entail that member states should make any newly agreed disclosure requirement applicable to the subject matter of the instrument (eg to GRs, including MGRs in particular), without exceptions. As further explained in the next two sections, member states’ preferences for these different options in the IGC—​at least to some extent—​a lso reflects their positions in the context of the ongoing deliberations on MGRs of ABNJ under UNCLOS.

(b) Setting the scene: marine biological diversity of areas beyond  national jurisdiction: a new international legally binding instrument under UNCLOS For more than twelve years, issues related to  the conservation and sustainable use of marine biological diversity of ABNJs (biodiversity beyond national jurisdiction, BBNJ) have been discussed at the UN, specifically, in the Ad Hoc

[EXCEPTIONS AND LIMITATIONS . . . ALT 4.1 A  [IP] [patent] disclosure requirement related to genetic resources [their derivatives] and [traditional knowledge associated with genetic resources] shall/​should not apply to the following: (a) [All [human genetic resources] [genetic resources taken from humans] [including human pathogens];] (b) [Derivatives]; (c) [Commodities];[/​genetic resources when they are used as commodities]; (d) [Traditional knowledge in the public domain]; (e) [Genetic resources from areas beyond national jurisdictions [and economic zones]]; and (f) [All genetic resources [acquired] [accessed] before [entry into force of the Convention on Biological Diversity] [before December 29th 1993]] [entry into force of the Nagoya Protocol on October 12, 2014]. 4.2 [Member States shall/​should not impose the disclosure requirement in this instrument on [IP] [patent] applications filed [or having a priority date] before entry into force of this instrument[, subject to national laws that existed prior to this instrument].] 43   ibid Draft art 4 of the Consolidated Document states as follows: [EXCEPTIONS AND LIMITATIONS 4 [In complying with the obligation set forth in Article 3, members may, in special cases, adopt justifiable exceptions and limitations necessary to protect the public interest, provided such justifiable exceptions and limitations do not unduly prejudice the implementation of this instrument.] . . . See also Indicative List of Outstanding/​Pending Issues to be Tackled/​Solved http://​w ww.wipo.int/​ edocs/​mdocs/​t k/​en/​w ipo_​grtkf_​ic_​30/​w ipo_​grtkf_​ic_​30_​5.pdf and Chiarolla and Kiliç (n 33) s 11.

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Open-​ended Informal Working Group to study issues relating to BBNJ, which was established in 2004 by resolution 59/​24 of the UN General Assembly (UNGA). The Working Group met nine times between 2006 and 2015. At its ninth meeting, on 23 January 2015, UN member states eventually reached agreement on recommendations for a decision to be adopted by the UNGA to start negotiations on a new internal legally binding instrument (ILBI) on BBNJ under UNCLOS.44 On 19 June 2015, the UNGA took the historic step of opening such negotiations on the conservation and sustainable use of BBNJs, as recommended by the Working Group. It also established a preparatory committee (PrepCom), which would ‘[m]‌a ke substantive recommendations to the General Assembly on the elements of a draft text [of the instrument]’, prior to holding an inter-​governmental conference for its adoption.45 The PrepCom’s mandate also provides that negotiations shall address the topics identified in the package agreed in 2011, namely the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-​based management tools, including marine protected areas, environmental impact assessments and capacity-​ building and the transfer of marine technology.

The regulation of access to and benefit sharing (ABS) in MGRs from ABNJs is a key issue that is being addressed in these negotiations. As highlighted in a workshop organized in preparation for the PrepCom, different views have been expressed on the legal regime applicable to BBNJ generally and, more specifically, to MGRs. With regard to the latter, some ‘[c]‌onsider that the principle of the common heritage of mankind is the basis for a future specific legal regime, similar to the one governing the Area46 (ie Part XI, UNCLOS, together with its 1994 Implementing Agreement). Yet others believe that MGRs already fall under the legal regime governing the high seas47 (ie Part VII, UNCLOS). . .  and therefore are opposed to negotiating a new benefit-​ sharing regime for the use of such MGRs’.48 As part of this discussion, IP issues concerning the patenting of MGRs and the role of existing institutions and instruments relating to them, including the WIPO (in particular, the IGC) have attracted considerable attention. As explained in the previous 44   Outcome of the Ad Hoc Open-​ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction and Co-​chairs’ summary of discussions (A/​69/​780) http://​w ww.un.org/​ga/​search/​v iew_​doc.asp?symbol=A/​ 69/​780. 45   Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (A/​R ES/​69/​292) https://​documents-​dds-​ny.un.org/​doc/​U NDOC/​GEN/​N15/​ 187/​55/​PDF/​N1518755.pdf?OpenElement. 46   The seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. 47   All parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a state, or in the archipelagic waters of an archipelagic state. 48   Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction: Preparing for the PrepCom, Report of the BBNJ Workshop of the Centre for International Law, National University of Singapore, February 2016.



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Box 10.1  Historical Background on MGRs in the UNCLOS Context [W]‌hen the negotiations of the regime for the Area at the Third Law of the Sea Conference started, it was generally considered that the deep seabed was rich only in mineral resources. It was concluded that due to the absence of light at the deep seabed, photosynthesis was not possible and living organisms could not exist there . . . This may possibly explain why the definition of ‘resources’ of the Area, provided in Article 133(a) of UNCLOS, is limited to ‘mineral resources’. However, discoveries that took place from the late 1970s have evidenced the existence of microbes and animals that live on the deep seabed and whose life is based on a different process, chemosynthesis. The microfauna and bacteria of the deep seabed are called ‘extremophiles’ or ‘hyperthermophiles’, as they live in conditions of darkness, extremely high temperatures and pressure, which has made them resistant to heat and pressure. Therefore, there is increasing interest from the scientific community and business companies in searching for species that produce beneficial substances and genes that could potentially be used for pharmaceutical or industrial processes. [The] access to [marine genetic] resources and their exclusive appropriation by means of intellectual property rights have global economic and social implications. Bioprospecting in relation to hydrothermal vents is already taking place and several deep seabed organisms have already been patented and used for commercial applications. [These GRs] are now considered by many to be even more valuable than the mineral resources in the Area. Source: Judge Tomas Heidar (International Tribunal for the Law of the Sea), Comprehensive Overview of BBNJ Process and Positions (2016). Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction: Preparing for the PrepCom, Report of the BBNJ Workshop of the Centre for International Law, National University of Singapore, February 2016, p. 10.

section, the IGC’s draft articles on IP and GRs include a reference to MGRs as one of the possible exceptions to the application of the proposed internationally harmonized framework for a patent disclosure requirement related to GRs (Box 10.1). At the same time, member states and experts at the PrepCom (and, prior to it, in the ABNJ Working Group)49 are also discussing the possibility of introducing transparency or disclosure obligations related to the use of MGRs under the ILBI. Proposals under discussion include, for example, a mandatory disclosure requirement of the origin of MGRs in patent applications (such as an obligation to disclose the GPS coordinates of sample collection locations) and the possibility to use an 49   Claudio Chiarolla, ‘Intellectual Property Rights Issues’ IUCN Information Paper No 6, prepared for the UN Intersessional Workshop on Marine Genetic Resources May 2013, New York http://​w ww.un.org/​d epts/​los/​biodiversityworkinggroup/​documents/ ​I UCN%20Information%20 Papers%20for%20BBNJ%20Intersessional%20Workshop%20on%20MGR.pdf. Geo-​referencing of sample collection locations appears to be already standard good scientific practice. However, it is also true that the metadata containing such important information is often fragmented, making it difficult to establish whether a given MGR was collected within national jurisdiction or in the ABNJs. More routine disclosure of the geographical coordinates of collection locations could help overcome this. See also Arianna Broggiato, ‘Exchange of Information on Research Programs Regarding Marine Biodiversity in Areas beyond National Jurisdiction’ IUCN Information Paper No 8, prepared for the UN Intersessional Workshop on Marine Genetic Resources May 2013, New York and, ‘Fifth Meeting of the Working Group on Marine Biodiversity beyond Areas of National Jurisdiction: 7–​11 May 2012’ 25(81) Earth Negotiations Bulletin, in particular http://​w ww.iisd.ca/​oceans/​marinebiodiv5/​.

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internationally recognized certificate inspired by Article 17 of the Nagoya Protocol in order to monitor and check compliance with any newly agreed multilateral benefit-​ sharing obligation.50

(c) Assessment of key substantive issues Besides the member states’ divergence of views on substantive proposals and practical solutions on patent disclosure issues (see above section 10.2.1(a)), a corollary of these discussions is the possibility to develop and use various forum-​shopping strategies as to where IP-​related issues concerning MGRs of ABNJs can or should be addressed in the first place. UNCLOS member states recognize that it provides the framework for all activities in the oceans and seas, including in relation to MGRs beyond areas of national jurisdiction. However, as anticipated in section 10.2.1(b), divergent views continue to be held on the respective application of its Parts VII (High Seas) and XI (the Area) to MGRs and the activities related thereto. A majority of developing countries hold the view that the common heritage of mankind, as set out in Part XI of UNCLOS, not only applies to mineral resources, but also to the biological resources of the area. Developed countries, generally, based on a literal interpretation of UNCLOS, are of the opinion that Part XI only encompasses mineral resources, while MGRs fall under the regime of the high seas—​the freedom of the high seas would therefore govern their collection and exploitation. By and large, these positions reflect the respective capacity of each group of states to access, explore, and exploit those resources.51 Against this backdrop, the issue of benefit sharing from the use of MGRs from ABNJ and the related issue of their possible ‘appropriation’ through the patent system52 features very prominently as one of the most important political issues that are considered by the BBNJ PrepCom. Hence, the growing interest to understand, on the one hand, whether MGRs in ABNJ would or should be covered by a WIPO IGC instrument on IP and GRs and, on the other, the hope that some potentially controversial issues regarding the IP-​related aspects of the BBNJ discussions could be addressed in the WIPO where there is technical expertise to do so.

  The 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. See ‘Summary of the Second Session of the Preparatory Committee on Marine Biodiversity Beyond Areas of National Jurisdiction: 26 August–​9 September 2016’ (2016) 25(118) Earth Negotiations Bulletin 5. 51   A Broggiato, S Arnaud-​Haond, C Chiarolla, and T Greiber, ‘Fair and Equitable Sharing of Benefits from the Utilization of Marine Genetic Resources in Areas beyond National Jurisdiction: Bridging the Gaps between Science and Policy’ (2014) 49 Marine Policy 176; and M Vierros, C Salpin, C Chiarolla, and S Arico, ‘Emerging and Unresolved Issues:  The Example of Marine Genetic Resources in Areas Beyond National Jurisdiction’ in S Arico (ed), Sustainable Oceans in the Twenty-​first Century (UNESCO-​ Cambridge University Press 2015). 52   See Sophie Arnaud-​Haond, Jesús M Arrieta, and Carlos M Duarte, ‘Marine Biodiversity and Gene Patents’ (2011) 331 Science 1521, and M Vierros, C A Suttle, H Harden-​Davies, and G Burton, ‘Who Owns the Ocean? Policy Issues Surrounding Marine Genetic Resources’ (2016) 25 Limnology and Oceanography Bulletin 29. 50



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Some member states have argued that the PrepCom is not a forum for discussing IP issues and have recommended that such discussions should be undertaken separately within competent fora such as the WIPO or the WTO. This view generally goes hand in hand with an acknowledgement of the importance of not deterring ocean-​related scientific research and innovation with new burdensome regulation and with the idea that there is no need to include express references to intellectual property rights in the ILBI. However, others believe that the PrepCom is the appropriate forum, since the WIPO IGC negotiations may not address ABNJ issues and could leave MGRs from these areas outside the purview of a new WIPO instrument(s), if any. A further view is that the work undertaken in the WIPO in relation to patent disclosure could be relied upon when considering new regulations of MGRs in the common heritage context.53

(d) Dispute resolution under a new ILBI and the possible contribution of the WIPO Arbitration and Mediation Center As regards the settlement of disputes that may arise under a new ILBI on BBNJ, various options might be considered by the member states. One obvious point of departure would be to consider a solution similar to the one already adopted for the 1995 UN Fish Stocks Agreement, that is, to provide that: The provisions relating to the settlement of disputes set out in Part XV of [UNCLOS] apply mutatis mutandis to any dispute between States Parties to this Agreement concerning the interpretation or application of this Agreement, whether or not they are also Parties to the Convention.54

However, depending on the particular features of any new governance framework that might be adopted in relation to the use and exploitation of marine generic resources, specific compliance issues may arise not only between the parties to a new ILBI, but also in relation to specific obligations of individual users (and/​or providers) of such resources.55 In the latter scenario, in particular, the WIPO Arbitration and Mediation Center may provide, upon request, advice and assistance, as appropriate, with regard to the elaboration of dispute resolution procedures and tailor-​made case administration services that could help parties resolve disputes arising in specific areas of research and development (R&D) and technology transfer, such as in the field of marine biotechnology, thereby reducing the risk of court litigation.56   Earth Negotiations Bulletin (n 49) 5.   Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks art 30(1). 55   Sophie Arnaud-​Haond has illustrated that ‘there are four paths leading to marine biotechnologies that fit within the definition of genetic resources. They [can be found] in situ, that is very seldom used for biotechnologies; ex situ, such as the culture of a marine organism; in vitro, individual syntheses; or in silico, extraction of knowledge. In any case, use of the functional unit of heredity is used one way or the other’. See n 46, at 38. On the different aspects of compliance by parties as well as by specific users of GRs/​ TK under the Nagoya Protocol see eg C Chiarolla, ‘The Role of Private International Law under the Nagoya Protocol’ in E Morgera, M Buck, and E Tsioumani (eds), The Nagoya Protocol in Perspective: Implications for International Law and Implementation Challenges (Brill/​MartinusNijhoff 2013). 56  An increasing number of cases are being filed with the Center under the WIPO Arbitration, Expedited Arbitration, Mediation and Expert Determination Rules. The subject matter of these 53

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While the WIPO Arbitration and Mediation Center has extensive experience in facilitating the resolution of conventional types of international IP and commercial disputes through WIPO procedures,57 it also assists in the development of operational and legal frameworks for tailored dispute resolution procedures, providing adapted solutions to IP-​related conflicts arising in particular technology sectors with specific stakeholder interests and needs. Examples include providing, by invitation of the governing body of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) of the Food and Agriculture Organization, technical advice in the development of operational guidelines for the commencement and management of amicable dispute resolution and mediation proceedings under the ITPGRFA Third Party Beneficiary Procedures.58 The Center has also contributed to the discussion on the potential of Alternative Dispute Resolution (ADR) for enhancing compliance with ABS requirements under the CBD and the Nagoya Protocol.59

10.2.2 Capacity building and other practical activities and tools The scholarly literature has analysed key aspects of the law of patents, trade secrets, copyrights, and databases by explaining why they are relevant to the utilization of MGRs and their intangible informational contents.60 It has also drawn key lessons learned from existing global regimes on genetic resources in the food and agriculture and health sectors, with a particular focus on IP management, benefit sharing, and the feasibility of using standard material transfer agreements (SMTAs) for the exchange of MGRs sourced from ABNJs under UNCLOS.61 The full potential and appropriate management of IP assets that arise from marine scientific research, and the use and exploitation of MRGs and marine bioprospecting,

proceedings includes both contractual disputes (eg patent and software licences, trademark coexistence agreements, distribution agreements for pharmaceutical products, and research and development agreements) and non-​contractual disputes (eg patent infringement). The Center assists parties in the selection of mediators, arbitrators, and experts from the Center’s database. The Center also offers specialized dispute resolution services and is available to discuss with interested entities the development of tailor-​made procedures. See WIPO ADR Services for Specific Sectors http://​w ww.wipo.int/​a mc/​en/​center/​specific-​ sectors/​. 57   More information on WIPO dispute resolution procedures including, in particular, mediation, arbitration, and expedited arbitration, and expert determination can be found at http://​w ww.wipo.int/​a mc/​ en/​center/​faq/​index.html. 58   More information on the WIPO Alternative Dispute Resolution (ADR) rules for the ITPGRFA Standard Material Transfer Agreement can be found at http://​w ww.wipo.int/​a mc/​en/​center/​specific-​ sectors/​biodiversity/​itpgrfa/​. 59   See WIPO, ‘The Potential of Alternative Dispute Resolution for Enhancing Compliance with the Nagoya Protocol and with Mutually Agreed Terms Related Access and Benefit-​sharing in the Context of Genetic Resources and Traditional Knowledge’ Part 3, Submission of Information by the WIPO for consideration of the Open-​ended Ad Hoc Intergovernmental Committee for the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD (2010) https://​w ww.cbd.int/​abs/​doc/​protocol/​icnp-​1/​w ipo-​en.pdf. 60   Claudio Chiarolla, ‘Intellectual Property Rights and Benefit-​sharing from Marine Genetic Resources in Areas beyond National Jurisdiction: Current Discussions and Regulatory Options’ (2010) 4(3) Queen Mary Journal of Intellectual Property 171. 61  ibid.



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needs to be considered carefully in the context of promoting research and innovation in areas directly relevant to sustainable ocean governance and ocean resources. The WIPO provides assistance to member states, upon request, with the design and implementation of strategies, policies, laws, and practical measures related to IP and GRs, including MGRs, in accordance with a country’s socioeconomic, cultural, environmental, and developmental priorities and goals. Furthermore, innovation and the transfer of technologies to address ocean-​related challenges (such as in the field of water technologies, ocean energy, and remediation of water pollution) can be further promoted through multi-​stakeholder platforms such as WIPO GREEN, ‘an interactive marketplace that promotes innovation and diffusion of green technologies by connecting technology and service providers with those seeking innovative solutions’.62 Finally, as regards the identification of relevant technology trends and the provision of patent-​related information, the WIPO has published patent landscape reports63 on ocean-​related issues such as microalgae-​related technologies,64 animal genetic resources65 (of some relevance to fish breeding and the use of aquatic GRs for food and agriculture),66 and desalination technologies and use of alternative energies for desalination.67 A new patent landscape report project is about to be launched regarding MGRs in the ASEAN countries. MGRs are a topic of great interest to ASEAN (Association of the South East Asian Nations) countries in the framework of the blue economy, providing a great potential for economic growth. This landscape report will present high-​quality data and analysis to inform discussions on the blue economy and international policy debates among ASEAN member states and other interested countries and stakeholders.

10.3  WIPO’s Work Relevant to the 2030 Agenda for Sustainable Development and the Sustainable Development Goals The 2030 Agenda for Sustainable Development, with its seventeen SDGs and 169 targets, was adopted by the UNGA on 25 September 2015 and came into force on 1 January 2016.68 62   See WIPO GREEN: The Marketplace for Sustainable Technology https://​w ww3.wipo.int/​w ipogreen/​ en/​. 63   Patent landscape reports (PLRs) provide a snapshot of the patent situation of a specific technology, either within a given country or region, or globally. They can inform policy discussions, strategic research planning or technology transfer. They may also be used to analyse the validity of patents based on data about their legal status. See WIPO website: http://​w ww.wipo.int/​patentscope/​en/​programs/​patent_​ landscapes/​. 64   WIPO, ‘Patent Landscape Report on Microalgae-​related Technologies’ (2016) http://​w ww.wipo.int/​ edocs/​pubdocs/​en/​w ipo_​pub_​947_​5.pdf. 65   WIPO, ‘Patent Landscape Report on Animal Genetic Resources’ (2014) http://​w ww.wipo.int/​edocs/​ pubdocs/​en/​w ipo_​pub_​947_​3.pdf. 66   See eg FAO website, ‘The State of the World’s Aquatic Genetic Resources for Food and Agriculture’ http://​w ww.fao.org/​fishery/​AquaticGeneticResources/​en. 67   WIPO, ‘Patent Landscape Report on Desalination Technologies and Use of Alternative Energies for Desalination’ (2011) http://​w ww.wipo.int/​edocs/​pubdocs/​en/​patents/​948/​w ipo_​pub_​948_​2.pdf. 68   A/​R ES/​70/​1.

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Innovation, creativity, and technology are central to the achievement of the SDGs. The WIPO participates, as a UN observer organization, in all major UN processes.69 In relation to the 2030 Agenda for Sustainable Development in particular, the role of the WIPO Secretariat has been described as follows: (i) to monitor the negotiations and discussions in these processes as they relate to the WIPO’s mandate (ii) to ensure WIPO senior management is aware of these developments and the extent to which they may impact upon the WIPO’s work (iii) to participate in UN inter-​agency initiatives aimed at supporting member states in these processes, with a specific focus on where the WIPO’s mandate may be of relevance (iv) to respond to requests from member states, or the UN Secretariat, by providing factual information on the role of the intellectual property system in relation to these broader policy areas and (v) to raise awareness of the various WIPO programmes, projects, and initiatives which may support member states in achieving sustainable development.70 The WIPO’s ongoing work in relation to the SDGs has focused, in particular, on supporting member states’ efforts to meet SDG No 9 (on industry, innovation, and infrastructure) and No 17 (on partnership for the goals).71 While there is an ongoing debate—​particularly, in the WIPO (CDIP)72—​as to whether the work of the WIPO should also extend to other goals and target (which are, in one way or another, related to IP), some member states have already tabled concrete proposals on how to advance the SDGs Agenda at the WIPO.73 Other member states, however, argue that some SDGs are not a matter that the WIPO should engage with since such work would not be in line with the WIPO’s mandate and expertise.74 Under the 2030 Agenda for Sustainable Development, ocean issues are addressed in the context of, inter alia, climate change and its impact on fish stocks, rising sea level,

69   Its past contributions include, inter alia, observer participation at the Open Working Group (OWG) that submitted a report to the 68th session of the General Assembly, containing a proposal for SDGs, and at the intergovernmental negotiations on the post-​2015 Development Agenda, as well as at other related processes (eg the Third International Conference on Financing for Development and its preparatory process, the Informal Interagency Group on the Technology Transfer Facilitation Mechanism). The Secretariat has also contributed to inter-​agency work on these issues within the UN chief executives board (CEB), as well as in the work of the UN task team on the post-​2015 Development Agenda (UNTT), and the UN technical support team (TST) to the OWG. See WIPO, CDIP/​16/​8, Annex 4 http://​w ww. wipo.int/​edocs/​mdocs/​mdocs/​en/​cdip_​16/​cdip_​16_​8.pdf. 70 71  ibid 4.  ibid 5. 72   Catherine Saez, ‘WIPO Committee debates SDGs, review of development agenda recommendations’ IP Watch (1 November 2016)  http://​w ww.ip-​watch.org/​2016/​11/​01/​w ipo-​committee-​debates-​ sdgs-​review-​development-​agenda-​recommendations/​ and Catherine Saez, ‘WIPO members divided on IP Agency’s role in implementation of UN sustainable development goals’, IP Watch (2 November 2016)  http://​w ww.ip-​watch.org/​2016/​11/​02/​w ipo-​members-​divided-​ip-​agencys-​role-​implementation-​ un-​sustainable-​development-​goals/​. 73   WIPO, CDIP/​18/​4, ‘Compilation of Member State Inputs on SDGs Relevant to WIPO’s Work’ http://​ www.wipo.int/​edocs/​mdocs/​mdocs/​en/​cdip_​18/​cdip_​18_​4.pdf. 74  See n 71.



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and small island developing states (SIDS); sustainable energy and access to power derived from the oceans; innovation, access to, and transfer of marine technologies; and biodiversity and ABS from MGRs. Furthermore, as a dedicated ocean-​related goal, SDG No 14 (life below water) specifically concerns the conservation and the sustainable use of the oceans, seas, and marine resources for sustainable development. In particular, SDG No 14, target 14.7(c) is to ‘[E]‌nhance the conservation and sustainable use of oceans and their resources by implementing international law as reflected in UNCLOS, which provides the legal framework for the conservation and sustainable use of oceans and their resources . . .’. As discussed above, section 10.2.1(a), shortly after the adoption of the SDGs, UN member states have also agreed to open negotiations for a new ILBI on the conservation and sustainable use of marine biodiversity in ABNJs. As part of the broader BBNJ negotiation package, IP-​related issues may be considered not only in relation to marine technology transfer and MGR research and exploitation, but also in other areas of work concerning the conservation and sustainable use of BBNJ. Member states may seek technical information from the WIPO Secretariat as to the IP-​related aspects of their deliberations. By providing legally sound, accurate, and up-to-date IP-​related information to member states, the WIPO can constructively contribute to the implementation of SDG No 14. Finally, ocean issues may raise implications for the work of the WIPO on food security, climate change, genetic resources, traditional knowledge, capacity building, and enabling environments for innovation and the transfer of technology. The WIPO is also a member of the Inter-​agency Consultative Group on SIDS75 and contributes to the SIDS Action Platform.76

10.4  Conclusions: The Future Role of WIPO in the Context of the Evolving Sustainable Ocean Governance Most global ocean governance issues are not directly concerned by the WIPO’s day-​to-​ day business, and vice versa. However, given the important and expanding role played by IP in relation to research and development on MGRs, marine scientific research, and the transfer of marine technologies, relevant IP rules and institutions contribute to structure the way in which innovation and technologies derived from marine scientific research and/​or applied to ocean resources may be accessed and used in various countries and transferred between them and the private and public sectors. Similarly, they are one of the factors that contribute to structure the way in which the benefits that arise from marine science, technology, and related innovations are shared between developers, providers, and users of such technologies. In the future, the WIPO’s role may encompass enhanced cooperation and capacity-​ building activities that are geared towards enhancing the IP system’s role in encouraging the discovery of new knowledge on MGRs and biodiversity in ABNJ. The WIPO may also contribute unique technical expertise and information that could

 See https://​sustainabledevelopment.un.org/​topics/​sids/​iacg.  See http://​w ww.sids2014.org/​partnerships/​?str=wipo.

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further the understanding of relevant IP-​related tools, regulatory options, and technology trends, particularly when member states will further consider the need for new mechanisms for applying fair and equitable ABS principles regarding MGRs of ABNJs. Furthermore, as regards the consideration of appropriate mechanisms for the resolution of disputes that may arise under a new ILBI, the WIPO Arbitration and Mediation Center may offer assistance to member states in the development of specialized dispute resolution services and tailor-​made procedures in relevant R&D and technology areas, including marine biotechnology and the use and exploitation of MGRs in various life science sectors. In addition to its on-​demand technical assistance and capacity-​building activities, and the provision of IP-​related information, as a member state-​driven WIPO, the WIPO’s involvement in global ocean governance will inexorably depend also on the extent to which its member states will achieve consensus on strengthening its possible involvement in supporting the implementation of the ocean-​related IP aspects of the SDG Agenda.

11 The Contribution of UNODC to Ocean Governance Serena Forlati*

11.1  Institutional Development and Profile of UNODC 11.1.1 The establishment of UNODC The United Nations Office on Drugs and Crime (UNODC) is an office of the United Nations (UN) Secretariat, sharing the international legal personality of the UN. It was formally established in 20041 and builds upon the experience of pre-​existing articulations of the Secretariat, notably: • the United Nations International Drug Control Programme (UNDCP), which had been instituted by the UN General Assembly (UNGA)  with the task to service the Commission on Narcotic Drugs and the International Narcotics Board.2 The role of the UNDCP was to enhance the effectiveness and efficiency of the UN structure for drug abuse control, in keeping with the functions and mandates of the UN in this field, by facilitating the implementation of the relevant treaties;3 pursuing policy implementation and research; and operational activities. • the Division for Crime Prevention, servicing the Commission on Crime Prevention and Criminal Justice (CCPCJ).4 CCPCJ was established as a functional commission of the ECOSOC in the framework of the UN crime prevention and criminal justice programme.5 The CCPJ is meant to be ‘the principal *   I am grateful to Dr Elisabetta Bonomo (formerly University of Ferrara) for her valuable research assistance; to Judge Gioacchino Polimeni (former Director of UNICRI) and to Dr Giovanni Broussard, Dr Nicole Quijano Evans, Dr Fabrizio Sarrica, and Mr Giuseppe Sernia (UNODC) for helpful discussions. The research is updated to December 2016. 1   Secretary-​General’s bulletin ‘Organization of the United Nations Office on Drugs and Crime’ (15 March 2004), UN Doc ST/​SGB/​2004/​6. 2   UNGA Res 45/​179 (21 December 1990) UN Doc A/​R ES/​45/​179, para 3. 3   The Single Convention on Narcotic Drugs of 1961, as amended by the Protocol Amending the Single Convention on Narcotic Drugs (adopted 8 August 1975, entered into force 13 December 1964) 976 UNTS 105 (1961 Convention); the Convention on Psychotropic Substances, Vienna (adopted 21 February 1971, entered into force 16 August 1976)  1019 UNTS 175 (1971 Convention); and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (adopted 20 December 1988, entered into force 11 November 1990) 582 UNTS 95 (1988 Convention). 4   ECOSOC, ‘Establishment of the Commission on Crime Prevention and Criminal Justice’ Res 1992/​ 1 (6 February 1992); see also ECOSOC, ‘Implementation of General Assembly resolution 46/​152 concerning operational activities and coordination in the field of crime prevention and criminal justice’ Res 1992/​22 (30 July 1992). 5   UNGA Res 46/​152 (18 December 1991) UN Doc A/​R ES/​46/​152, para 11(b).

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United Nations policymaking body on crime prevention and criminal justice issues’,6 also entrusted with the coordination of relevant activities,7 whereas the Secretariat, under the guidance of the CCPCJ, would be ‘responsible for facilitating the planning, coordination and implementation of practical activities in the field of crime prevention and criminal justice, in close collaboration with Governments and interregional and regional institutes, specialized agencies, funding agencies, intergovernmental and non-​governmental organizations, the activities of which should be promoted in this field’.8 In 1997 a realignment of these two branches of the Secretariat was decided:  the Division for Crime Prevention was strengthened and reconstituted as the Centre for International Crime Prevention that formed, together with the UNDCP, the Office for Drug Control and Crime Prevention.9 The two branches were merged in 2004, when the Secretary General formally established the UNODC, in order to ‘implement the Organization’s drug programme and crime programme in an integrated manner, addressing the interrelated issues of drug control, crime prevention and international terrorism in the context of sustainable development and human security’.10 The 2004 SG Bulletin also set out the organization and functions of the office, amongst which are notably: • Servicing the Commission on Narcotic Drugs, the Commission on Crime Prevention and Criminal Justice, the United Nations congresses on crime prevention and criminal justice, and the International Narcotics Control Board in the execution of their functions.11 • Fulfilling the Secretary-​ General’s responsibilities under the drug control, crime prevention and terrorism conventions and instruments, as well as relevant inter-​governmental resolutions, and performing the functions of secretariat of the Conference of the Parties to the United Nations Convention against Transnational Organized Crime (UNTOC)12 and the Conference of the Parties to the United Nations Convention against Corruption (UNCAC);13 this includes providing advice and assistance to member states on the implementation of relevant legal standards, promoting adherence to relevant treaties, and monitoring their effective implementation, as well as coordination of the activities of the United Nations Inter-​regional Crime and Justice Research Institute and ensuring cooperation with regional and affiliated criminal justice institutes (in this respect, the UNODC acts as ‘guardian’ of the relevant conventions and instruments).14

  UNGA Res 61/​252 (22 December 2006) UN Doc A/​R ES/​252, para 1. 8   ECOSOC Res 1922/​22, para III(4).   ECOSOC Res 1992/​22, para I(1). 9   Report of the Secretary General, ‘Reviewing the United Nations: A Programme for Reform’, UNGA Res 51/​950 (4 July 1997) UN Doc A/​51/​950, 48, paras 144 ff. 10   Secretary-​General’s bulletin ‘Organization of the United Nations Office on Drugs and Crime’ (15 April 2004) UN Doc ST/​SGB/​2004/​6 (SG Bulletin). 11   See SG Bulletin, s 6. 12   Adopted 15 November 2000, entered into force 29 September 2003, 2225 UNTS 209. 13   Adopted 31 October 2003, entered into force 14 December 2005, 2349 UNTS 41. 14   SG Bulletin (n 11), s 6(2). 6 7



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• Research, analysis, and strategic planning.15 • Acting as repository of expertise in the field of crime prevention and repression.16 • Developing, managing, implementing, and coordinating technical cooperation activities (in the form of technical assistance, which is provided through a network of field offices).17 In pursuing this mandate, the UNODC’s main areas of activity currently relate to drugs, health, and trafficking; transnational organized crime; justice; corruption; terrorism; policy support and public affairs; research, trend analysis, and forensics; and independent evaluation.18

11.1.2 Governance and budget The UNODC operates in the context of the broader UN Crime Prevention and Criminal Justice Programme. Whereas a number of different UN entities are actively involved in developing such programmes,19 the UNODC’s mandate is shaped by the General Assembly and ECOSOC, through the Commission on Narcotic Drugs (CND) and the CCPCJ. At the same time, the UNODC also receives inputs from the Conferences of the Parties to the UNTOC and the UNCAC; the Conferences of the Parties thus complement its governance structure and develop the mandate decided by the CCPCJ and the CND, at times also identifying new areas of activity.20 The plurality of the UNODC’s constituencies does not seem to give rise to conflicts, probably also due to the almost universal participation in the UNTOC (187 parties) and the UNCAC (181 parties).21 Incidentally, also several other treaties of which the UNODC is a guardian have gained similarly high rates of acceptance: there are to date 185 parties to the 1961 Convention; 183 parties to the 1971 Convention; and 189 parties to the 1988 Convention. Also, conventions as regards terrorism (an area in which the UNODC is significantly involved especially, but not exclusively, as regards terrorism prevention22) 16 17   ibid ss 7(2), 5(2)(d).   ibid ss 2(2)(a) and 2(3)(a).  ibid s 5.   See UNODC, Annual Report 2015 (United Nations 2016). 19   See UNGA Res 46/​152 (18 December 1991)  UN Doc A/​R ES/​46/​152, para 8.  Notably the United Nations Congresses on Crime Prevention and Criminal Justice (previously Congresses on the Prevention of Crime and the Treatment of Offenders) act as a consultative body of the UN Crime Prevention and Criminal Justice Programme, and provide a forum for, inter alia, the submission of suggestions, for the consideration of the CCPCJ, regarding possible subjects for the programme of work (see ‘Statement of principles and programme of action of the United Nations crime prevention and criminal justice programme’, Annex to UNGA Res 46/​152, para 29(e); cf also UNGA Res 56/​119 (23 January 2002) UN Doc A/​Res/​56/​119, preamble. Cf R S Clark, The United Nations Crime Prevention and Criminal Justice Program (University of Pennsylvania Press 1994) 24 ff. 20   For instance, the mandate to address the problem of organ trafficking was identified by UNTOC Conference of the Parties, rather than by the CCPCJ (interview with Dr Fabrizio Sarrica, 7 December 2016). 21   See https://treaties.un.org (last accessed 23 December 2016). Ratification rates are lower, albeit significant, in the case of UNTOC’s Supplementing Protocols: 170 parties ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319; 142 parties ratified the Protocol against the Smuggling of Migrants by Land, Sea and Air (adopted 15 November 2000, entered into force 28 January 2004)  2241 UNTS 507; and 114 parties ratified the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition (adopted 31 May 2001, entered into force 3 July 2005) 2326 UNTS 208. 22  See www.unodc.org/​unodc/​en/​terrorism/​index.html (last accessed 22 December 2016). 15 18

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are widely ratified: there are notably 187 parties to the International Convention for the Suppression of the Financing of Terrorism.23 At the same time, choices and priorities of specific members/​parties significantly influence the modalities of implementation of the UNODC’s mandate. One reason for this is linked to the structure of the UNODC’s budget. Whereas some costs (notably those linked to servicing the Commission on Narcotic Drugs, the CCPCJ, and the Conferences of the Parties) are covered by the UN regular budget, contributions from the UN regular budget amounted to only about 8 per cent of the UNODC’s budget in 2015.24 These figures are in line with the situation of the previous years: in fact, over 90 per cent of the UNODC’s budget consists of earmarked voluntary contributions or Special Purpose Funds.25 Thus, the availability of funds by states and other entities (notably the EU) is critical to the ability of the UNODC to perform field work or technical assistance, which are carried out in the framework of specifically sponsored projects. Recent years have witnessed a gradual decline of unearmarked (general purpose) contributions; this trend is perceived as potentially detrimental to the functioning of the office26 also because it may lead to imbalances in the actual implementation of the UNODC’s mandate.27 Hence, a specific fundraising strategy has been developed to ‘enable strategic policy and operational priorities to be implemented in a coherent, predictable and sustainable manner’.28 However, the UNODC’s activities related to ocean governance are mostly in the form of technical assistance to states;29 this implies that they are offered only to states seeking such assistance or accepting it—​an element which certainly contributes to their effectiveness, although it may potentially also lead to imbalances.

11.2  UNODC and the 2030 Agenda for Sustainable Development The UNODC’s mandate draws on a broad approach to criminal justice, leading to the adoption of important standard-​setting documents such as the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules);30 also, 23   Adopted 9 December 1999, entered into force 10 April 2002, 2178 UNTS 197. Moreover, there are 169 parties to the International Convention for the Suppression of Terrorist Bombings, New York, 15 December 1997 and 107 parties to the International Convention for Suppression of Acts of Nuclear Terrorism, New York, 13 April 2005 https://treaties.un.org/ (last accessed 23 December 2016). For a comprehensive list of UNODC’s legislative mandates see CND, ‘Proposed strategic framework 2016–​2017 for the United Nations Office on Drugs and Crime: Note by the Secretariat’ (28 January 2014) UN Doc E/​ CN.7/​2014/​CRP.4, 22 ff. 24  UNODC, Annual Report 2015 (n 18) 120. Less than 1% of the UN regular budget is thus allocated to UNODC. 25  See UNODC, ‘Fundraising Strategy 2012–​2015’ 1–​2 https://​w ww.unodc.org/​documents/​donors/​ Fundraising.Strategyv._​final_​print_​version.5_​Sep.2012.pdf (last accessed 20 December 2016). 26 27  ibid 122.   Cf UNODC, ‘Fundraising Strategy 2012–​2015’, 1. 28   ibid 4. This notwithstanding the situation in 2015 was not deemed fully satisfactory: UNDC, Annual Report 2015 (n 1) 122. 29   See further below, section 11.4. 30   UNGA Res 70/​176, Annex (17 December 2015) UN Doc A/​70/​176. For a comprehensive overview of norms and standards adopted by the UN on the basis of proposals by the CCPCJ see The Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice (3rd edn, United Nations 2016).



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owing to the inputs of the conferences of the parties to the UNTOC and the UNCAC, it currently lays much emphasis on international cooperation in effective prevention and repression of criminal activities such as corruption and transnational organized crime. The link between the promotion of the rule of law at global level and development has long been acknowledged: thus, for instance, ECOSOC Resolution 1922/​22 emphasized ‘the direct relevance of crime prevention and criminal justice to sustained development, stability, security, democratic change and improved quality of life’.31 The Doha Declaration on crime prevention and criminal justice recently reiterated ‘the importance of promoting peaceful, corruption-​free and inclusive societies for sustainable development, with a focus on a people-​centred approach that provides access to justice for all and builds effective, accountable and inclusive institutions at all levels’.32 More specifically, the foundational mandates of the UNODC are in harmony with the 2030 Agenda for Sustainable Development and its policy directions are grounded therein.33 At the same time, the 2030 Agenda has formally incorporated issues related to security, the rule of law, and social justice:34 as a general stocktaking, the UNODC’s activities are part and parcel of the efforts to build ‘peaceful, just and inclusive societies that provide equal access to justice and that are based on respect for human rights (including the right to development), on effective rule of law and good governance at all levels and on transparent, effective and accountable institutions’.35 The UNODC’s mandate is thus clearly linked to Sustainable Development Goal (SDG) No 16 (‘Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’), notably to the targets of reducing violence and related death rates (16.1); end abuse, exploitation, trafficking, and all forms of violence against and torture of children (16.2); promote the rule of law at the national and international levels and ensure equal access to justice for all (16.3); by 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets, and combat all forms of organized crime (16.4); reduce corruption and bribery in all their forms (16.5); develop effective, accountable, and transparent institutions at all levels (16.6), strengthen relevant national institutions, including through international cooperation, for building capacity at all levels, in particular in developing countries, to prevent violence and combat terrorism and crime (16.a). At the same time, the cross-​cutting nature of the UNODC’s 31   ECOSOC Res 1922/​22 ‘Implementation of General Assembly Resolution 46/​152 concerning operation and coordination in the field of crime prevention and criminal justice’ (30 July 1992). See also the 2012 UN Declaration of the High-​level Meeting of the General Assembly on the Rule of Law at the National and International Levels, UNGA Res 67/​1 (24 September 2012), UN Doc A/​R ES/​67/​1. 32   Thirteenth United Nations Congress on Crime Prevention and Criminal Justice, ‘Doha Declaration on integrating crime prevention and criminal justice into the wider United Nations agenda to address social and economic challenges and to promote the rule of law at the national and international levels, and public participation’ (12–​19 April 2015) UN Doc A /​CONF.222/​L .6, para 4. 33   Commission on Narcotic Drugs, CCPCJ, ‘Proposed strategic framework for the period 2018-​2019’ (8 December 2015) UN Doc E /​CN.7/​2015/​CRP.8–​E /​CN.15/​2015/​CRP.8, para. 13.8. 34   These issues were present in the Millennium Declaration (UNGA Res 55/​2 (8 September 2000) UN Doc A/​R ES/​55/​2, para 24) but were not operationalized in the millennium development goals. See UNODC, note on ‘Security, the Rule of Law and the post 2015 development agenda’ www.unodc.org/​unodc/​en/​ about-​unodc/​sustainable-​development-​goals/​sdgs-​index.html (last accessed 24 December 2016). 35   UNGA Res 70/​1 (25 September 2015) UN Doc A /​R ES/​70/​1, para 35; see also the Preamble of the Declaration.

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activities in the fight against crime is an exemplification of the ‘integrated and indivisible’ nature of the three dimensions—​economic, social, and environmental—​of sustainable development,36 insofar as its activities have a bearing on several other 2030 Development Goals, including SDG No 14 (‘Conserve and sustainably use the oceans, seas and marine resources for sustainable development’).37 This is also in line with the holistic approach to the problems of ocean space, which is purported by the United Nations Convention on the Law of the Sea (UNCLOS),38 and lies at the basis of the UN approach to the management of the oceans. For instance, the UNGA has highlighted that ‘the problems of ocean space are closely interrelated and need to be considered as a whole through an integrated, interdisciplinary, and inter-​sectoral approach, and reaffirming the need to improve cooperation and coordination at the national, regional, and global levels, in accordance with the Convention, to support and supplement the efforts of each state in promoting the implementation and observance of the Convention, and the integrated management and sustainable development of the oceans and seas’.39 As shall be seen in the next section, the UNODC is fully involved—​a longside other actors—​in the effort to address such problems and it is growingly concerned with the effective prevention and repression of serious crime at sea or in ports, which is a key component of maritime security.40

11.3  UNODC and Ocean Governance 11.3.1 Ocean governance and effective prevention and repression of crime at sea In its resolutions on ‘Oceans and the law of the sea’, the General Assembly has noted with concern ‘the continuing problem of transnational organized crime committed at sea, including illicit traffic in narcotic drugs and psychotropic substances, the smuggling of migrants, trafficking in persons and illicit trafficking in firearms, and threats to maritime safety and security, including piracy, armed robbery at sea, smuggling and terrorist acts against shipping, offshore installations and other maritime interests, and . . . the deplorable loss of life and adverse impact on international trade, energy security and the global economy resulting from such activities’,41 further recognizing ‘the considerable need to provide sustained capacity-​building assistance, including on

36   UNGA Res 70/​1 (25 September 2015) UN Doc A /​R ES/​70/​1, Preamble, para 55. See UNODC, Annual Report 2015 (n 19) 101. 37  See further www.unodc.org/​unodc/​en/​about-​unodc/​sustainable-​development-​goals/​sdgs-​index. html (last accessed 24 December 2016). 38   Adopted 10 December 1982, entered into force 16 November 1994, 1833 UNTS 3.  The UNCLOS Preamble expressly acknowledges that ‘the problems of ocean space are closely interrelated and need to be considered as a whole’. 39   UNGA Res 66/​231 (23 December 2011) UN Doc A/​R ES/​66/​231, Preamble. 40   The notion of ‘maritime security’ should be distinguished from ‘maritime safety’; while the latter refers to the prevention and suppression of risks affecting maritime navigation in general, ‘the notion of maritime security is associated with risks to navigation resulting from wilful misconduct, thereby including prevention and suppression of all intentional unlawful acts affecting maritime navigation’. See UNODC, Transport-​related (Civil Aviation and Maritime) Terrorism Offences (United Nations 2014) 66. 41   UNGA Res 70/​235, Preamble.



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financial and technical aspects, by relevant international organizations and donors to developing States, with a view to further strengthening their capacity to take effective measures against the multiple facets of international criminal activities at sea, in line with the relevant international instruments, including the United Nations Convention against Transnational Organized Crime and the Protocols thereto’.42 The UNTOC indeed provides the main (albeit not the only) legal basis for the UNODC’s involvement in ocean governance. Notably Chapter II of the UNTOC Smuggling Protocol is entirely devoted to the smuggling of migrants at sea. Moreover, all other predicate offences covered by the UNTOC and its Supplementing Protocols may be committed in whole or in part at sea, or may anyway entail exercise of jurisdiction over sea zones. The offences covered by the UNTOC (insofar as they are transnational in nature and involve an organized criminal group) are: (a) Predicate offences specifically established under the UNTOC and its Supplementing Protocols, that is participation in an organized criminal group (under Article 5 of the UNTOC); laundering of the proceeds of crime (Article 6); corruption (Article 8); obstruction of justice (Article 23); human trafficking, for the Parties to the Trafficking Protocol (Article  5 thereof); migrant smuggling, for the Parties to the Smuggling Protocol (Article 6 thereof); illicit manufacturing, trafficking and falsifying, removing or altering the markings of firearms, for the parties to the Firearms Protocol (Article 6 thereof). b) Any other ‘serious crime’; Article 2 of the UNTOC defines ‘serious crime’ as ‘conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty’. Specifically, the identification of ‘serious crime’ is therefore left to national authorities; the notion may cover a wide range of criminal conducts, depending on choices made by domestic legislatures.43 Therefore, the notion of ‘serious crime’ applies also to acts whose criminalization is decided as a means to implement specific international obligations other than those stemming from the UNTOC. The flexibility of this concept implies that the UNTOC often overlaps with, and indirectly fosters implementation of other treaty regimes. This is the case of the obligations under treaties of which the UNODC is a guardian (notably the 1988 Convention, which covers also drug traffic at sea,44 and the UNCAC, insofar as corruption facilitates crime at sea45) but also of

  ibid para 24. Cf Res 66/​231, para 20.   See V Militello, ‘Participation in an Organised Criminal Group as an International Offence’ in H Albrecht and C Fijnaut (eds), The Containment of Transnational Organised Crime:  Comments on the UN Convention of December 2000 (Iuscrim 2002) 97 at 102; A Schloenhardt, ‘Transnational Organized Crime’ in R J Currie and N Boister (eds), Routledge Handbook on Transnational Organized Crime (Routledge 2015) 409 at 415–​16; G Polimeni, ‘The Notion of Organised Crime in the United Nations Convention against Transnational Organized Crime’ in S Carnevale, S Forlati, and O Giolo (eds), Redefining Organized Crime: A Challenge for the European Union? (Hart Publishing 2017) 57–​74. 44   See notably art 17 of the 1988 Convention, discussed below. 45   Specifically corruption in ports is a widespread phenomenon and is often linked to maritime crime (see further below, section 11.3.1). On the link between corruption and other crimes see J Sandage, ‘Keynote Speech:  Global Corruption and the Universal Approach of the United Nations Convention against Corruption’ (2015–​2016) 53 Osgoode Hall Law Journal 7, 12. 42 43

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various other instruments adopted under the auspices of the UN, specialized agencies, or regional organizations. For instance, acts of piracy or armed robbery against ships may constitute an offence under the UNTOC and contextually under the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention).46 Similar overlaps may occur as regards acts of terrorism, which are also regulated by SUA and other specific instruments47 but could, under specific circumstances, fall under the scope of the UNTOC;48 human trafficking, whose criminalization is imposed by instruments other than the Trafficking Protocol;49 traffic in endangered species (notably timber, but also wild fauna) protected under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES);50 also, fisheries crime and marine pollution can fall under the scope of the UNTOC when the relevant behaviours are treated as ‘serious crimes’ at national level.51 As mentioned above, however, the main role of the UNODC in this field is to provide normative and technical assistance to states so as to favour appropriate exercise of their jurisdiction over vessels and maritime zones. It may therefore be important to clarify the relationship between the different legal bases of the UNODC’s activities and the international law of the sea—​notably UNCLOS, which was concluded in order to ‘establish . . . a legal order for the seas and oceans’.52

11.3.2 UNTOC, other legal bases for UNODC’s action, and UNCLOS: a coherent framework The UNGA recently restated that the United Nations Convention on the Law of the Sea ‘sets out the legal framework within which all activities in the oceans and seas must be carried out’.53 Indeed, UNCLOS is considered to be ‘the legal framework 46   Adopted 10 March 1988, entered into force 1 March 1992, 1678 UNTS 221. Cf SG Report ‘Oceans and the Law of the Sea’ (10 March 2008) UN Doc A /​63/​63 (SG Report 2008) para 58; UNODC, Issue Paper—​ Combating Transnational Organized Crime Committed at Sea (United Nations 2013) 7. 47   See UNODC, Transport-​related (Civil Aviation and Maritime) Terrorist Offences (n 40) 65 ff. 48   In adopting UNTOC, UNGA Res 55/​25 (15 November 2000), UN Doc A/​R ES/​55/​25, recognized the existence of ‘growing links between transnational organized crime and terrorist crimes’; see further A Annoni, ‘The Relationship between Transnational Organized Crime and Terrorism: An International Law Perspective’ in Carnevale, Forlati, and Giolo (eds), Redefining Organized Crime (n 43) 121–​43. 49   See A Gallagher, The International Law of Human Trafficking (2010) 54 ff. In addition, trafficking may be considered as a ‘serious crime’ under domestic law also by states which are parties to UNTOC but not to the Trafficking Protocol. 50   Adopted 3 March 1972, entered into force 1 July 1975, 993 UNTS 244; amendments were adopted on 22 June 1979 (entered into force on 13 April 1987)  and on 30 April 1983 (entered into force 29 November 2013). 51  See UNODC, Transnational Organized Crime in the Fishing Industry (United Nations 2011); UNODC, Issue Paper (n 46) 4 ff; E de Coning and G Stølsvik, ‘Combating Organised Crime at Sea: What Role for the United Nations Office on Drugs and Crime?’ (2013) 28 Int’l J Maritime and Coastal L 189, 203; M A Palma-​Robles, ‘Tightening the Net: The Legal Link between Unreported and Unregulated Fishing and Transnational Crime under International Law’ (2015) 29 Ocean Yearbook 145; UNEP-​Interpol, The Rise of Environmental Crime—​A Growing Threat to Natural Resources, Peace, Development and Security (UNEP 2016) 57. 52   See UNCLOS Preamble. 53  UNGA Res 70/​235 (23 December 2015)  UN Doc A/​R ES770/​235, Preamble, quoting Agenda 21 (Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–​14 June



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within which all activities in the oceans and seas must be carried out and establishes a careful balance between the sovereign rights, jurisdiction and freedoms enjoyed by States in the various maritime zones on the one hand, and their duties and obligations on the other. . . . The Convention provides for the accommodation of the various uses of the oceans and also for the resolution of conflicts regarding the attribution of rights and jurisdiction of States. Its provisions apply in respect of all activities, whether military or civil’.54 This is the case also as regards prevention and repression of crime at sea: the UN Secretary-​General observed, in his 2008 Report on ‘Oceans and the law of the sea’, that ‘[t]‌he international legal regime for maritime security consists of a number of international instruments, all operating within the framework of the Charter and UNCLOS’.55 The approach to ocean governance adopted by the instruments of which UNODC is a guardian is based on this assumption; while UNCLOS is not expressly mentioned therein, the relevant provisions are formulated so as to be in line with customary law of the sea, which is by and large reflected by UNCLOS. This requirement is set out, notably, by Article 7 of the Smuggling Protocol, whereby ‘States Parties shall cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea, in accordance with the international law of the sea’.56 Moreover, Article 8 sets forth the legal framework for taking measures against vessels when there is a reasonable suspicion that they are involved in the smuggling of migrants. Specifically, paragraphs 1 and 2 stipulate: 1. A State Party that has reasonable grounds to suspect that a vessel that is flying its flag or claiming its registry, that is without nationality or that, though flying a foreign flag or refusing to show a flag, is in reality of the nationality of the State Party concerned is engaged in the smuggling of migrants by sea may request the assistance of other States Parties in suppressing the use of the vessel for that purpose. The States Parties so requested shall render such assistance to the extent possible within their means. 2. A  State Party that has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law and flying the flag or displaying the marks of registry of another State Party is engaged in the smuggling of migrants by sea may so notify the flag State, request confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures with regard to that vessel. The flag State may authorize the requesting State, inter alia: (a) To board the vessel; (b)   To search the vessel; and

1992, vol I, Resolutions Adopted by the Conference, resolution 1, annex II). See also, recently, UNGA Res 66/​231 (23 December 2011) UN Doc A/​R ES/​66/​231. 54   SG Report 2008, paras 46–​47; para 48 further adds: ‘Flag States play a particularly important role in maritime security, as they are required to effectively exercise jurisdiction and control in administrative, technical and social matters over ships flying their flag. Flag States are responsible for ensuring that their vessels act in conformity with applicable rules of international law, wherever such vessels may be located’. 55 56   ibid para 43.  Emphasis added.

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Article 8 of the Smuggling Protocol closely follows the model of Article 17 of the 1988 Convention, which in turn ‘expands upon the obligation under article 108 of the Convention on the Law of the Sea to cooperate, through the establishment of a framework within which third party States suspecting trafficking activity may seek the authorization of the flag State to undertake interdiction efforts of its vessels located in maritime zones beyond the territorial sea’.57 Paragraphs 3 and 4 of Article 17 state: 3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures in regard to that vessel. 4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorize the requesting State to, inter alia: (a) Board the vessel; (b) Search the vessel; (c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.58

Both instruments are in line with the need to respect the exclusive jurisdiction of the flag state as set out in UNCLOS: they do stipulate an obligation to cooperate in combating migrant smuggling and drug traffic by sea, but subject any measure against ships suspected of trafficking to flag state authorization.59 Moreover, they safeguard ‘the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea’.60 More intrusive measures could be authorized by the Security Council, as with Resolutions 2240(2015)61 and 2312 (2016),62 which exceptionally authorize interception of vessels suspected of smuggling of migrants off the coasts of Libya in the context of Operation Sophia. 57  UNODC, Practical guide for competent national authorities under article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (United Nations 2004) 4. 58   Both instruments stipulate that action as regards suspect vessels ‘shall be carried out only by warships or military aircraft, or by other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect’, in line with art 107 UNCLOS (see art 9(4) Smuggling Protocol, art 17(10) 1988 Convention). 59   See Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Working Group on the Smuggling of Migrants, Note by the Secretariat, ‘Smuggling of migrants by sea’ (27 August 2015) UN Doc CTOC /​COP/​WG.7/​2015/​2, 7. Cf also D Guilfoyle, Shipping Interdiction and the Law of the Sea (2009) 83, 184. 60   Smuggling Protocol, art 9; 1988 Convention, art 17(11). This implies that the authorization of the flag state can be granted only for measures taken in zones beyond the territorial sea of other states. See D McLean, Transnational Organized Crime—​A Commentary to the UN Convention and Its Protocols (Oxford University Press 2007). 61   9 October 2015, UN Doc S/​R ES/​2240 (2015), paras 7 and 8. 62   6 October 2016, UN Doc S/​R ES/​2312 (2016), which prolonged the authorization in connection with EUNAVFOR MedOperation Sophia for a further 12 months (para 7).



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While other relevant instruments do not stipulate specific rules in this regard, they should be interpreted consistently with UNCLOS (or the corresponding customary obligations) in light of the principle of systemic interpretation set forth by Article 31(3)(c) of the Vienna Convention on the Law of Treaties.63 Notably as regards the UNTOC, its legislative guide expressly acknowledges: ‘Those involved in the negotiation of the Convention and its Protocols were well aware of the need for flexibility, as well as consistency and a degree of harmonization, at the international level’;64 moreover, the Convention ‘respects and protects the sovereignty of States parties’.65 It is also worth noting that, according to Article 4(1) of the UNTOC, ‘States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-​intervention in the domestic affairs of other States’. According to the ICJ, ‘The purpose of Article 4 of the Convention is to ensure that the States parties to the Convention perform their obligations in accordance with the principles of sovereign equality, territorial integrity of States and non-​intervention in the domestic affairs of other States’.66 Whereas the requirement to respect sovereign rights at sea is not expressly mentioned, it may perhaps be argued that the reference to ‘territorial integrity’ encompasses also protection sovereign rights on maritime zones. In any case, the emphasis laid by Article 4 on the need to respect state sovereignty, taken together with the indications of the legislative guide and with a contextual reading of the UNTOC in light of Articles 8 and 9 of the Smuggling Protocol, imply that states parties to the UNTOC should perform their obligations by respecting sovereign rights at sea also in areas other than the smuggling of migrants. The same interpretative approach should apply as regards other relevant instruments. At the same time, systemic interpretation cannot in itself shed light on doubts as regards the actual content of the pertinent rules of international law of the sea. For instance, practice is not entirely straightforward as regards vessel interdiction within the exclusive economic zone of other states;67 this may lead to difficulties also as regards instruments whose implementation falls directly under the UNODC mandate. Any inter-​state dispute in this regard would have to be addressed on the basis of

63   Adopted 1969, entered into force 1980. According to this provision, a treaty should be interpreted by taking into account ‘[a]‌ny relevant rules of international law applicable in the relations between the parties’. 64  UNODC, Legislative Guide for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (United Nations 2004) xvi. 65   ibid 16, para 32. 66   Immunities and Criminal Proceedings (Equatorial Guinea v France) Order (7 December 2016) para 49 www.icj-​cij.org (last accessed 8 December 2016). According to the ICJ, ‘the provision does not appear to create new rules concerning the immunities of holders of high ranking office in the State or incorporate rules of customary international law concerning those immunity’. Nor could art 4 be deemed to create or codify, mutatis mutandis, sovereign rights at sea; however the ICJ stance, which was adopted in connection with a prima facie assessment of jurisdiction under art 35 UNTOC, does not have any bearing on the possibility of relying on UNCLOS (or the corresponding customary rules) in the framework of a systemic interpretation of UNTOC. 67   See Guilfoyle, Shipping Interdiction (n 59) 84.

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agreements applicable as between the states in dispute, including notably UNCLOS,68 the 1988 Convention,69 and the UNTOC70 for parties to those instruments. On the other hand, a direct involvement of the UNODC (or, rather, of the UN) in such kinds of dispute seems unlikely—especially as the UNODC’s role in relation to the UNTOC, the Supplementing Protocols, the 1988 Convention, or other pertinent instrument does not involve any kind of direct enforcement action at sea. Should a dispute of this kind arise, the possibility of requesting an advisory opinion to the International Court of Justice under Article 96 of the UN Charter may be envisaged.

11.4  UNODC’s Contribution to Ocean Governance The activities of the UNODC have been increasingly engaged in ocean governance—​which is understood here as the international process in which the cooperation by states, inter-​governmental institutions, and other actors aims at achieving the objectives laid down in UNCLOS at a local, national, regional, and global level. More specifically, capacity building through training, sharing of data and analysis, normative assistance, and other forms of technical assistance that the UNODC provides to governments on a voluntary basis, help framing national policies and regulatory frameworks that may ensure or enhance coherence with the existing international legal framework (including international human rights law) in respect of the exercise of prescriptive, enforcement, and adjudicatory jurisdiction. The UNODC also sustains domestic capacity building in the actual enforcement of the pertinent domestic and international rules, in appropriately addressing new threats to maritime security and, more generally, new forms of crime affecting the oceans in different ways. Moreover, activities of the UNODC are developed in close connection not only with states but also other governance systems affecting the oceans such as the International Maritime Organization (IMO), the International Organization for Migration (IOM) and UNICEF,71 the World Customs Organization 68   Part XV, arts 279 ff. The principles of peaceful settlement of international dispute and of free choice of the means of settlement, which are codified by arts 279–​80 UNCLOS, would of course apply also on the basis of customary international law. 69   Article 32, paragraphs 1 and 2 therof, stipulates: ‘1. If there should arise between two or more Parties a dispute relating to the interpretation or application of this Convention, the Parties shall consult together with a view to the settlement of the dispute by negotiation, enquiry, mediation, conciliation, arbitration, recourse to regional bodies, judicial process or other peaceful means of their own choice. 2. Any such dispute which cannot be settled in the manner prescribed in paragraph 1 of this article shall be referred, at the request of any one of the States Parties to the dispute, to the International Court of Justice for decision’. 70   Paragraphs 1 and 2 of art 35 set forth: ‘1. States Parties shall endeavour to settle disputes concerning the interpretation or application of this Convention through negotiation. 2. Any dispute between two or more States Parties concerning the interpretation or application of this Convention that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court’. This clause was first relied upon in Equatorial Guinea v France (n 66), where the ICJ found (at least prima facie) that the case does not fall under the scope of UNTOC ratione materiae. 71   See eg the Global Action to Prevent and Address Trafficking in Persons and the Smuggling of Migrants www.unodc.org/​unodc/​en/​human-​trafficking/​glo-​act/​index.html (last accessed 27 December 2016).



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(WCO),72 the Food and Agriculture Organization (FAO), and Interpol.73 Also, cooperation with non-​governmental organizations (NGOs) and the civil society is usually good—​for instance, with NGOs as regards the assistance to the victims of human trafficking, or with the shipping industry as regards the Container Control Programme (CCP).74 A number of different UNODC programmes have an impact on the process of ocean management, although they do not focus exclusively on maritime crime. This trend is prominent, notably, as regards drug control, human trafficking, and migrant smuggling—​where sea routes in the Mediterranean and other areas of the world are under constant focus,75 although they are not the main routes in terms of numbers of people trafficked or smuggled76 —​but also features in other fields, such as terrorism prevention or wildlife and forest crime. Two current UNODC programmes are more directly concerned with global ocean governance: namely, the CCP and the Global Maritime Crime Programme (GMCP).77

11.4.1  The Container Control Programme The CCOP, founded in 2004, is run by the UNODC in cooperation with the WCO. It operates mostly in seaports,78 as inspection at sea is not usually possible in the case of vessels carrying containers. The programme has a prominently hands-on approach and develops coordination between different agencies operating at domestic level, through the setting-up of joint port control units;79 it mainly focuses on enhancing national capability to profile, target, and examine containers being used for the transport of illicit goods. In a context where there is a high volume of—​mostly legal—​ traffic (over 7 million containers worldwide in 2016), the CCP provides support and training for the purpose of quicker and more effective targeting, based on cargo manifest data, as well as promoting exchange of information on high risk cargos. This helps to minimize actual controls, managing resources efficiently and avoiding excessive hindrances to legal commercial traffic:80 currently about 2 per cent of containers are inspected worldwide.81 The CCP helps to target many different forms of illicit traffic, notably narcotics; strategic and dual use goods; forest products and wildlife; goods infringing intellectual

  Specifically as regards the Container Control Programme: see below, para 3(a).  UNODC, Annual Report 2015 (n 19) 51, 90; cf further www.unodc.org/​unodc/​en/​terrorism/​partnerships/​operational.html (last accessed 1 January 2017). 74  UNODC, Container Control Programme—​Annual Report 2015 (United Nations 2016) 15. 75  UNODC, Annual Report 2015 (n 19) 49 ff. 76  UNODC, Issue Paper—​Smuggling of Migrants by Sea (United Nations 2011) 11. These numbers are rising significantly as regards Europe: for instance, according to UNODC, ‘In Italy, between January and June 2016, the number of unaccompanied minors reaching the country by sea more than doubled compared to the same period in 2015, reaching about 10,000’: see UNODC, Global Report on Trafficking in Persons 2016 (United Nations 2016) 61. 77   A comprehensive overview of UNODC activities is provided by its annual reports www.unodc.org. 78   It should be noted that the CCP operates also in dry ports—​t hat is, inland intermodal terminals connected to seaports by road or rail—​a nd airports; modalities of intervention are identical. 79 80  UNODC, Container Control Programme (n 74) 9.  ibid 7, 32. 81   Interview with Dr Quijano-​Evans (7 December 2016). 72 73

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property rights; arms; stolen objects; and cultural heritage. It also helps limiting tax avoidance.82 It is currently seeking to extend its reach by developing inter-​continental cooperation.83 The programme finds its legal basis in the UNTOC and the UNCAC (as corruption in ports is often endemic). The completely voluntary basis on which beneficiaries of this programme are identified enhances the recipients’ commitment, and thus the programme’s effectiveness.

11.4.2  The Global Maritime Crime Programme The GMCP is the main UNODC programme involved in ocean governance.84 It builds on the outcomes of the Counter Piracy Programme (CPP) that the UNODC set up on the basis of Security Council Resolution 1851 (2008)85 in an effort to coordinate activities among states and international organizations to suppress piracy off the coast of Somalia. The CPP brought together more than sixty countries and international organizations working towards the prevention of piracy off the Somali coast ‘through increasing regional capacities to deter, arrest, prosecute and detain pirates’. This was done by (1) pursuing fair and efficient trials and imprisonment of piracy suspects in regional countries; paving the ground for (2)  humane and secure imprisonment in Somalia; and (3) fair and efficient trials in Somalia itself, through a cooperation with the United Nations Development Programme  (UNDP).86 These efforts, combined with other factors, did bring about a decline of piracy in the Horn of Africa, although the risk of resurgence is present.87 With its Resolution 20/​5 the CCPCJ mandated the UNODC to convene an expert meeting to facilitate the investigation and prosecution of international crime at sea, including by ‘identifying gaps or possible areas for harmonization, and measures to strengthen national capacity, in particular in developing countries, to more effectively combat transnational organized crime’.88 In 2013 the decision was taken to develop the GMCP by expanding the reach of CPP in terms both of geographical scope and crimes covered;89 although effective counter-​piracy action in the Horn of Africa remains a high priority and one of the keystones of the new programme,90 GMCP has the much broader aim to ‘improve the capabilities and capacity of the criminal just­ ice systems of states to carry out effective prevention and prosecution of maritime  UNODC, Container Control Programme (n 74) 7, 9.   Interview with Dr Quijano-​Evans (n 81). 84   See de Coning and Stølsvik, ‘Combating Organised Crime at Sea’ (n 51) 189. 85   16 December 2008, UN Doc S/​R ES/​1851 (2008). 86   For a detailed analysis of CCP outcomes see UNODC, In-​depth Evaluation of the Counter Piracy Programme—​Combating Maritime Piracy in the Horn of Africa and the Indian Ocean—​Increasing Regional Capacities to Deter, Detain and Prosecute Pirates (United Nations 2013). 87   Cf M Okano, ‘Is International Law Effective in the Fight against Piracy? Lessons from Somalia’ (2010) 53 Japanese YB Int’l L 178; D Guilfoyle, ‘Piracy Off Somalia and Counter-​piracy Efforts’ in D Guilfoyle (ed), Modern Piracy—​Legal Challenges and Responses (Edward Elgar Publishing 2013) 35; UNODC, In-​ depth Evaluation of the Counter Piracy Programme (n 86) vii. 88  UNODC, Issue Paper—​Maritime Crime (n 46) 1. 89  UNODC, Global Maritime Crime Programme—​Annual Report 2015 (United Nations 2015). 90   See UNODC, Independent In-​depth Evaluation of the Global Maritime Crime Programme (New York 2015) ix, noting that effective counter-​piracy action in the Horn of Africa remains a high priority especially for the donor community. 82 83



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crimes within a sound rule of law framework’91—​a lso in an attempt to tackle appropriately multifaceted organized criminal groups which are simultaneously engaged in different forms of illicit activities.92 Thus, in 2015, the GMCP offered technical assistance to eighteen countries and addressed six main areas of concern: the smuggling of migrants and people trafficking; wildlife and forestry crime; piracy and armed robbery; Somali charcoal smuggling; fisheries crime; and narcotics trafficking on the high seas.93 As the chart below shows, the programme has further expanded its geographical reach in 2016 (Figure 11.1).94

Figure 11.1  Countries involved in the GMCP.

As the CCP, the  GMCP is  also currently promoting an inter-​regional approach to crime prevention and repression at sea, specifically through the institution of the Indian Ocean Forum on Maritime Crime.95 It offers a variety of different services (ranging from an assessment of threats, capacity, and needs to legislative assistance, mentoring at operational and tactical level, support in establishing operational protocols, capability to investigate and prosecute maritime crime, and in managing prisoners detained for such crimes96), whose exact identification is tailored according to the wishes and needs of the country/​region concerned. Moreover, the broad legal basis of the GMCP and the programme’s flexibility enhance its prospects to contribute positively to the governance of the oceans, insofar as it should enable it to ‘act as a UNODC first responder to requests from States for support in relation to both emerging maritime crime issues which are not yet adequately addressed by UNODC or another organization, but also for more general counter maritime crime capacity building which transcends narrower sectoral and thematic programming concerns’.97  ibid.   ibid 1, notably as regards West Africa. The connection between illicit trafficking and the financing of terrorism has also been noted (interview with Mr Giuseppe Sernia, 30 November 2016). 93   Y Fedotov, ‘Foreword’ GMCP Report 2015 (n 89) iii. 94   Courtesy of UNODC, December 2016. 95  UNODC, GMCP Report 2015 (n 89) 3 ff; ‘Independent In-​depth Evaluation’ (n 90) xiv. 96 97  UNODC, GMCP Report 2015 (n 89) 54.   ‘Independent In-​depth Evaluation’ (n 90) 12. 91

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11.5 Conclusions The UNODC’s specific mandate, relating to the area of crime prevention and criminal justice, touches upon central components of the promotion of the rule of law at global level; it does not have a specific focus on ocean governance. However, the analysis above shows that a significant and growing share of the UNODC’s activities, aimed at assisting states in their fight against different forms of serious crime, directly or indirectly fosters appropriate ocean governance. On one hand, these activities help achieving coherence and coordination between international and national regulatory frameworks for the exercise of prescriptive, enforcement, and adjudicatory jurisdiction over prevention and repression of crime at sea; and, on the other hand, they provide states with knowledge, expertise, and operational capacity to target the most serious forms of crime at sea in practice effectively, in the form of technical assistance. The UNODC programmes are often developed in cooperation with other international institutions active at both global and regional level.98 They are grounded on a variety of different legal bases, with the most relevant ones being the UNTOC and its Supplementing Protocols; those different instruments have to be interpreted in line with UNCLOS and/​or customary rules of the law of the sea, in the perspective of an holistic and mutually inter-​related approach to global ocean governance. Moreover, the UNODC’s policies and activities are contributing to the implementation of the UN 2030 Agenda for Sustainable Development, which is based on the premise that the rule of law and sustainable development are inter-​related and mutually reinforcing. They specifically encompass prevention and repression of crime at sea and in the interconnection between land and sea (notably in ports). Indeed, even programmes with a more direct vocation to ocean governance, such as the CCP or GMCP, operate in the perspective of integrated coastal and ocean management; moreover, their cross-​cutting approach allows coverage of a wide range of sea-​related threats and crimes, thus strengthening the capacity of states and of the international community as a whole to implement the rule of law at sea.

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  de Coning, Stølsvik (n 51) 200.

12 The Contribution of UNHCR to Ocean Governance Seline Trevisanut

12.1  The UNHCR: An Introduction 12.1.1 Its creation and difficult beginnings The United Nations High Commissioner for Refugees (UNHCR) is an agency of the United Nations created in 1950 as the successor of another UN agency, the International Refugee Organization (IRO). The latter was created in 1946 in order to manage the refugees and displaced persons generated by the Second World War in Europe.1 The IRO provided assistance to the repatriation of thousands of Europeans who had fled, by supplying, for example, food, clothing, and transportation during the trip. In case of inability to return to their home country, the IRO took care of temporary accommodation of refugees in host countries. Considering the temporary nature of the IRO, the ECOSOC invited the United Nations  General Assembly (UNGA)  to consider the need to find new ways of continuing the work of the IRO.2 On 3 December 1949, the UNGA adopted the resolution 319 (IV) that established the creation of the UNHCR. The UNHCR was responsible for refugees and displaced persons defined in Annex I of the Constitution of the International Refugee Organization and, thereafter, such persons as the UNGA may from time to time determine, including any persons brought under the jurisdiction of the High Commissioner’s Office under the terms of international conventions or agreements approved by the UNGA.3 The UNHCR mandate is wider than the one of the IRO and includes the tasks of promoting the development and ratification of multilateral and bilateral agreements for the protection of refugees, and of assisting governments and private organizations dealing with the repatriation or settlement of refugees in host countries.4 The agency’s Statute was adopted by the UNGA on 14 December 1950 and establishes in paragraph 1: The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem of refugees assisting Government and, subject to the approval of the Government concerned,

2   UNGA res 8(I) 12 February 1946.   ECOSOC res 248(IX) 6 August 1949. 4   UNGA res 319(IV) 3 December 1949, para 3.   ibid. para 4.

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private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities.5

The creation of the UNHCR preceded the adoption of the Geneva Convention Relating to the Status of Refugees6 in 1951, although the UNHCR has since been the body which monitors and enhances compliance with the 1951 Convention. Paragraph 2 of its Statute clearly affirms the non-​political character of the UNHCR’s mission and provides that ‘[t]‌he work of the High Commissioner shall be of an entirely non political character; it shall be humanitarian and social and shall relate, as a rule, to groups and categories of refugees’ (emphasis added). The political dimension of its role, however, clearly emerged from the behaviour of some states during the negotiations for its establishment and in respect of its international role, particularly during the Cold War. For instance, the United States, who played a central role in running the IRO, did not at first support the creation of a universal agency which would protect refugees also in the Soviet bloc. In reaction, the US administration carried out a stand-​a lone policy on European refugees and created the Inter-​governmental Committee for European Migration (ICEM).7 The UNHCR’s beginnings were also marked by the exclusion from its mandate of two categories of refugees, which presented a fundamental strategic interest: the Palestinian refugees after 1948 who were entrusted to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA);8and the Korean refugees who were entrusted to the United Nations Korean Reconstruction Agency (UNKRA).9 Moreover, the UNHCR suffered from very limited finances, which did not enable it to carry out support operations. In 1952 the UNGA authorized the creation of a United Nations Refugee Emergency Fund (UNREF)10 and a fundraising operation with a maximum of US$3 million. This sum, although modest, allowed the UNHCR to take fundamental action during the 1953 uprising in East Germany.11 With this first success, the High Commissioner obtained US funding the following year, and won the Nobel Peace Prize in 1955. In 1956 Augustus Lindt was appointed High Commissioner and, unlike his predecessors, enjoyed good relations with the US administration. Nonetheless, the United States did not at all share the High Commissioner’s policy in the management of the Hungarian crisis of 1956.12 The Hungarian uprising, the first refugee crisis broadcast live on television, had a great impact on public opinion and consolidated international support to the UNHCR. The US and many Western countries strongly criticized the agency for its family reunification policy, which involved the repatriation of refugees in Hungary, in a communist country. This departure from the position of the Western bloc, which was its major funder, was the starting point of the progressive affirmation of autonomy by the agency, which pursued this policy during the decolonization period.13 6   UNGA res 428(V) 14 December 1950.   189 UNTS 137.   G Loescher, The UNHCR and World Politics: A Perilous Path (OUP 2002) 7 ff. 8 9   UNGA res 302(IV) 8 December 1949.   UNGA res 410(V) 1 December 1950. 10   UNGA res 538B(VI) 2 February 1952. 11 12 13  Loescher, The UNHCR and World Politics (n 7) 50 ff.  ibid 81 ff.  ibid. 5 7



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12.1.2 The progressive expansion of its mandate To allow the UNHCR to assist refugees not originally encompassed in the geographically and temporally limited scope of application of the Geneva Refugee Convention,14 the UNGA authorized the High Commissioner to exercise its mandate in a series of crises. This ad hoc mandate extension could only be implemented with the consent of the state concerned by the migratory crisis. For instance, France initially opposed the intervention of the agency for the benefit of the Algerians who had found refuge in Tunisia following the outbreak of the War of Independence (1954–​1962). France did not want to internationalize the conflict, which was considered a domestic matter.15 The French government finally agreed and the Algerians were the first non-​European refugees to be assisted by the UNHCR.16 The High Commissioner sought to pursue its humanitarian mission without entering the delicate power balance of the Cold War between the Western and the Soviet blocs. The UNHCR, although conditioned by this situation, assumed the most independent position possible, thanks in particular to the personality of the High Commissioner. Of particular prestige was the role played by Sadruddin Aga Khan, under whose direction the agency dealt with the first flows of migrants by sea, the then-​called ‘boat people’.17 The UNHCR thus progressively managed mixed flows, ie flows including not only refugees but also displaced persons and economic migrants. It then de facto extended its mandate. The scope of its mandate has expanded progressively since its creation and comprises now the protection of five categories of individuals:  (1) those falling under the definition of the 1951 Geneva Convention and 1967 Protocol; (2)  broader categories recognized by states as entitled to protection and assistance of the UNHCR; (3)  those individuals for whom the UNHCR exercised ‘good offices’; (4)  returning refugees; (5)  non-​refugee stateless persons.18 According to the Global Report 2015, today 63,912,738 people are of concern to the UNHCR.19 States parties to the Geneva 14   The scope ratione personae of the Geneva Convention was originally limited to refugees falling within the definition of its art 1 para A(2): ‘For the purposes of the present Convention, the term “refugee” shall apply to any person who: 2) As a result of events occurring before 1 January 1951 ( . . . );’ and para B(1): ‘For the purposes of this Convention, the words “events occurring before I January 1951” in article 1, section A, shall be understood to mean either (a) “events occurring in Europe before I January 1951”; or (b)  “events occurring in Europe or elsewhere before I  January 1951” (  . . .  )’ (emphasis added). The 1967 Protocol eliminated the limits of time and place in respect of the application of the 1951 Refugee Convention; Protocol relating to the Status of Refugees, 606 UNTS 267. Pursuant to the joint reading of both texts, a refugee is any person ‘owing to well-​founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it’. 15   R Rémond, Notre Siècle, de 1918 à 1991 (Lgf 1992) 525–​48. 16   UNGA res 1286(XIII) 5 December 1958. 17   ‘Vietnamese asylum seekers distinguished themselves from either counterparts in other parts of the world by using small, rickety and hardly seaworthy wooden boats to flee the country and hence came to be called as the “Boat People’; see A Lakshmana Chetty, ‘Resolution of the Problem of Boat People: The Case of a Global Initiative’ (2001) 1 ISIL Yearbook of International Humanitarian and Refugee Law 144. 18  UNHCR, Protection of Persons Concern to UNHCR Who Fall Outside the 1951 Convention:  A Discussion Note, 2 April 1992, UN Doc EC/​1992/​SCP.CRP.5, para 11. 19  See http://​w ww.unhcr.org/​574ed5234.html.

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Convention20 have an obligation to ensure cooperation with the UNHCR in its function of monitoring the implementation of the Convention and other duties, as well as an information obligation (Article 35 of the Geneva Convention). The UNHCR does not, however, possess any power to control or sanction any omission or violation.

12.1.3 The role of the UNHCR Executive Committee The UNHCR’s activism and the fundamental role in the development of rules and standards of international protection are primarily achieved through the activities of the UNHCR Executive Committee. The Executive Committee was created in 1958 by the ECOSOC in order to support the UNHCR in its mission, particularly with regard to fundraising.21 The Executive Committee is composed of representatives of member states of the United Nations and of the specialized agencies. The members are elected by the ECOSOC and, in order to be elected, a state does not need to be a party to the Geneva Convention. For this very reason, and owing to the fact that the Executive Committee is the only international forum specialized in the field of refugees and international protection, its conclusions, albeit without binding nature, are held in high consideration by states and any relevant actor. The Executive Committee conclusions have proven to be able to foster regulatory developments.22 For instance, they were key in identifying and expanding the definition of a refugee contained in Article 1 of the Geneva Convention,23 and in relation to the content of the principle of non-​refoulement provided by Article 33 of the Geneva Convention.24 The Executive Committee has played a major role in interpreting refugee law, in shaping states’ obligations of international protection, and in encouraging and/​ or arranging for international cooperation to manage in particular irregular migration by sea. 20   As of April 2015, 145 states are a party to the Geneva Convention and 146 to the 1967 Protocol; 142 states are a party to both the Convention and the 1967 Protocol. See http://​w ww.unhcr.org/​protection/​ basic/​3b73b0d63/​states-​parties-​1951-​convention-​its-​1967-​protocol.html. 21   ECOSOC res 672(XXV) 30 April 1958. For a detailed analysis of the Executive Committee see inter alia G Loescher, A Betts, and J Milner, The United Nations High Commissioner for Refugees (Routledge 2008) 76 ff. 22  A Corkery, ‘The Contribution of the UNHCR Executive Committee to the Development of International Refugee Law’ (2006) Australian International Law Journal 97. 23   I Venzke, How Interpretation Makes International Law, On Semantic Change and Normative Twists (OUP 2012) 109 ff. 24  The principle of non-​refoulement is primarily provided by art 33(1) of the Refugee Convention (1951) but it is also a fundamental human right (see art 3 of the Convention against Torture, art 3 of the ECHR and art 19.2 of the EU Charter of Fundamental Rights). The principle entails that no refugee/​ individual should be returned to any country where he or she is likely to face persecution, other ill-​ treatment, or torture. On its territorial scope of application, see inter alia J Allain, ‘The Jus Cogens Nature of Non-​Refoulement’ (2001) 13 International Journal of Refugee Law 533; T Gammeltoft-​Hansen, Access to Asylum:  International Refugee Law and the Globalisation of Migration Control (Cambridge University Press 2011) 45; G S Goodwin-​Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-​Refoulement’ (2011) 23 International Journal of Refugee Law 443; J C Hathaway, The Rights of Refugees under International Law (Cambridge University Press 2005) 279; E Lauterpacht and D Bethlehem, ‘The Scope and Content of the Principle of Non-​refoulement: Opinion’ in E Feller, V Türk, and F Nicholson (eds), Refugee Protection in International Law (Cambridge University Press 2003) 87 ff; UNHCR, Advisory Opinion on the Extraterritorial Application of Non-​Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Geneva, 26 January 2007).



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The Executive Committee in particular dealt with the legal definition of some of the enforcement measures adopted by states to contrast irregular migration by sea. In dealing with sea-​born migratory flows, destination and transit states have adopted comparable policies aimed at preventing the arrival of irregular migrants by performing border control outside their territory. States have commonly used measures such as (joint) patrolling, interception of irregular migrants on the high seas, and in the territorial waters of third states,25 for redirecting of intercepted migrants to the coasts of third states etc. The practice of naval interdiction on the high seas consists of the action of one state or more, undertaken on the basis of an international agreement, aimed at exercising the right of visit in relation to criminal activities not listed in Article 110 of the Law of the Sea Convention (LOSC).26 Bearing in mind that an agreed definition of interception does not exist in international law, the Executive Committee affirmed that interception is: [O]‌ne of the measures employed by States to: i. prevent embarkation of persons on an international journey; ii. prevent further onward international travel by persons who have commenced their journey; iii. or assert control of vessels where there are reasonable grounds to believe the vessel is transporting persons contrary to international or national maritime law; where, in relation to the above, the person or persons do not have the required documentation or valid permission to enter; and that such measures also serve to protect the lives and security of the travelling public as well as persons being smuggled or transported in an irregular manner.27

Such a definition has the advantage to encompass all sorts of measures so far adopted by states in dealing with the irregular migration by sea. It is also a testimony of the rich experience the UNHCR and, specifically, its Executive Committee has gained in managing migratory crisis and in interacting with ocean law and policy. This solid expertise builds in particular on the UNHCR’s intervention in relation to two crises at the end of the 1970s: the ‘Haitian crisis’ and the ‘Indochinese crisis’. These crises also consisted of the first contribution of the UNHCR to ocean governance and will be discussed in detail in the following paragraphs.

 Many authors have commented and criticized such a practice. See inter alia J Coppens, ‘The Lampedusa Disaster:  How to Prevent Further Loss of Life at Sea’ (2013) 7 International Journal on Marine Navigation and Safety of Sea Transportation 589; E Papastravidis, ‘Interception of Human Beings on the High Seas: A Contemporary Analysis under International Law’ (2009) 36 Syracuse Journal of International Law and Commerce 145; S Trevisanut, ‘The Principle of Non-​Refoulement and the De-​ Territorialization of Border Control at Sea’ (2014) 27 Leiden Journal of International Law 661. 26   1833 UNTS No 31363; ILM 21 (1982) 1276, art 110.1 LOSC: ‘Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship’. 27   UNHCR Executive Committee, Conclusion No 97 (LIV) 2003. Previously, the Executive Committee proposed a definition of interception in the document Interception of Asylum-​seekers and Refugees: The International Framework and Recommendation for a Comprehensive Approach, EC/​50/​CRP.17, 9 June 2000, para 10. 25

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12.2  The UNHCR and the Handling of Irregular Migration by Sea Crises Irregular migration by sea posed two main challenges to the UNHCR’s mission. On the one hand, the heterogeneous legal status of migrants did not completely fit the UNHCR’s ratione personae jurisdiction. On the other hand, the UNHCR did not have (and still does not possess) the operational and legal means to act effectively in situations such as the Haitian and Indochinese crises, which bitterly highlighted the structural limits of the agency.

12.2.1 The Haitian crisis Haitian migrants had been arriving on US shores since the late 1950s and were generally welcome until the 1970s. After Duvalier became president of Haiti, the number of boat people considerably increased, reaching about 30,000 arrivals every year. About half of Haitian migrants were repelled because they were ‘excludable’ from the refugee category. The UNHCR expressed its disapproval about these return procedures, which were not based on an individual assessment of the asylum requests and thus contravened the standards laid down in the 1967 Protocol. The High Commissioner sent a member of the UNHCR to Port-​au-​Prince in order to obtain independent information and to ascertain the existence of an authoritarian regime. Nonetheless, the United States continued to expel Haitian boat people.28 In the early 1980s, new flows of boat people coming from Haiti reached the shores of Florida. This crisis also coincided with the increase of arrivals from Cuba. Haitian migrants intercepted by the US Coast Guard were initially screened on board the intercepting naval units, wherever the interception took place. Those considered eligible for asylum status were then brought onto US soil; the others were repatriated to Haiti. Because of the escalation of the phenomenon, the US migration policy became more restrictive. All Haitian boat people were automatically excluded from the application of internal and international asylum law, whether they were intercepted on the high seas or in territorial waters.29 The US Supreme Court judgment of 21 June 199330 affirmed the legality of the measures taken by the Coast Guard, also concerning its compliance with the Geneva Convention, in particular with the principle of non-​refoulement.31 The UNHCR

28  UNHCR Archives, HCR/​ 600/​ USA/​ 1/​ USA/​ HAI, 15 May 1974, as mentioned in Loescher, The UNHCR and World Politics (n 7) 186. 29   See the ‘Kennebunkport Order’, Executive Order No 12.807, Interdiction of Illegal Aliens, 24 May 1992, 57 Federal Register (1992) 133 ff. 30   Supreme Court of United States, Sale v. Haitian Centres Council, Inc., 21 June 1993, ILM 32 (1993), at 1039 ff. 31   The judgment of the Supreme Court attempted to confer domestic ‘legality on the practice of returning individuals to their country of origin, irrespective of their claim to have a well-​founded fear of persecution. That decision could not and did not alter the State’s international obligations’; G S Goodwin-​ Gill and J McAdam, The Refugee in International Law (3rd edn, OUP 2007) 248. See also UNHCR, ‘Brief Amicus Curiae’ (1994) 6 International Journal of Refugee Law 85.



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presented an amicus curiae brief where it discussed in particular the issue of the geographical application of the principle, and specifically  of its application at sea. The UNHCR in particular affirmed: The obligation not to return refugees to persecution arises irrespective of whether governments are acting within or outside their borders. UNHCR bases its position on the language and structure of the treaties’ overriding humanitarian purpose, which is to protect especially vulnerable individuals from persecution. UNHCR’s position is also based on the broader human right of refugees to seek asylum from persecution as set out in the Universal Declaration of Human Rights.32

The UNHCR advocacy in front of the US Supreme Court was an important step in order to clarify the applicability at sea of the rules contained in the Geneva Convention, contextually with other relevant obligations deriving from international human rights law.33

12.2.2 The Indochinese crisis The UNHCR’s action consisted of promoting initiatives and giving support to the existing multilateral cooperation programmes that dealt with the rescue and resettlement of refugees found at sea. This mode of action took shape in particular with the management of a second crisis of boat people, namely the Indochinese crisis stemming from the Vietnam War.34 The United Nations were involved in the reconstruction process following the Peace Treaty of Paris of 1973, but the fate of the boat people took an international significance only in the second half of the 1970s.35 Considering that, back as today, the UNHCR operates on the territory of states that have authorized it and does not have its own means possibly to intervene at sea, the agency could only intervene once the migrants had reached the country of destination or of transit. However, at that time, the main recipient countries, namely Thailand, Malaysia, and Singapore, were not parties to the 1951 Geneva Convention or the 1967 Protocol. The UNHCR interventions were therefore aimed to get the attention of states parties to the Refugee Convention, which were likely to provide support and aid for the construction and management of camps. In November 1978, the Thai Prime Minister declared that Thailand would no longer accept refugees and that intercepted boats would be redirected back to the high seas. The international community, and primarily the United States and the ASEAN (Association of the South East Asian Nations) countries, asked the High Commissioner to intervene and to convene an inter-​governmental conference to address the situation

  ILM 32 (1993) at 1215, emphasis added.   As mentioned above (n 24), the principle of non-​refoulement is also a fundamental principle of human rights law and a corollary obligation to the peremptory prohibition of torture and other inhuman and degrading treatments. See Goodwin-​Gill  and McAdam, The Refugee in International Law (n 31)  257 ff; Human Rights Committee, General Comment No 20 (1992), Doc HRI/​HEN/​1/​Rev.1, 28 July 1994, para 9. 34 35   Lakshmana Chetty (n 17) 144 ff.   ibid 145 ff. 32 33

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multilaterally. The High Commissioner, Hartling, clearly depicted the emergency of the situation in 1978: You will see from the data as of 30 November that, last month, over 7,000 new arrivals were registered in Thailand for UNHCR assistance, bringing the total for whom solutions are presently required to over 130,000. In 1978 alone, the number of arrivals in Thailand exceeds those for whom durable solutions have been found by some 40,000. Likewise, in November, over 21,500 boat cases arrived in various parts of South East Asia, bringing the total for whom solutions are presently required to over 50,000. . . . in July 1977, representatives of States Members of the Executive Committee met to consider a number of pressing problems, among them the urgent needs of some 82,000 persons in Thailand and some 5,500 boat cases.36

In addition to and in connection with the humanitarian emergency, two main problems emerged: to determine who should intervene on the high seas to rescue migrants, and what were the areas of competence and responsibility of the interested states. Hartling, in the same statement, emphasized that: [W]‌e must not ask a drowning man how he came to be in those straits. Still less is there time to question if he has relatives abroad, is bilingual, skilled or physically or mentally handicapped. Asylum, at least temporarily, must be given immediately and durable solutions  . . .  must be devised in response to humanitarian needs, needs that are surely self-​evident.37

The mixed composition of the new migratory flow and their increasing number generated a strong hostility of the public opinion in recipient countries. Instances of non-​ rescue and denials of disembarkation multiplied. The inter-​governmental conference held in Geneva in July 1979 made it clear that the crisis could not be solved within the UNHCR because the agency did not have, and still does not have, competence in the field of navigation, specifically for rescue operations. In Geneva, the UNHCR then called the parties to cooperate, in a spirit of solidarity, and presented a programme to that effect. The focal point of the 1979 conference was temporary asylum, which implied a subsequent multilateral cooperation programme on resettlement of refugees.38 In 1979, the DISERO (Disembarkation Resettlement Offers) programme was created and provided a first solution to the refusal of disembarkation by destination states.39 Participating states undertook to accept a predetermined quota of refugees/​displaced persons in order to encourage vessels to perform their rescue obligations by guaranteeing them entry and disembarkation. Unfortunately, the practice of ignoring vessels in distress continued. The main issue for rescuing vessels consisted of the economic   Opening Statement by the United Nations High Commissioner for Refugees, in Consultative Meeting with Interested Governments on Refugees and Displaced Persons in South East Asia (Geneva, 11–​12 December 1978)  http://​w ww.unhcr.org/​en-​us/​admin/​hcspeeches/​3ae68fce4c/​opening-​statement-​mr-​ poul-​hartling-​united-​nations-​high-​commissioner-​refugees.html. 37  ibid. 38   S A Bronée, ‘The History of the Comprehensive Plan of Action’ (1993) 5 International Journal of Refugee Law 534. 39   Problems Related to the Rescue of Asylum-​Seekers at Sea, EC/​SCP/​42 http://​w ww.unhcr.org/​excom/​ scip/​3ae68cbc20/​problems-​related-​rescue-​asylum-​seekers-​sea.html. 36



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cost of rescue operations. A rescue operation often implied a variation of the navigational route, with consequent time and, thus, economic loss. In 1982 the Working Group of Government Representatives on the Question of Rescue and Asylum Seekers at Sea issued an appeal to the flag states to encourage vessels flying their flag to carry out rescue operations on the high seas and to adhere to the DISERO programme.40 The problem of ‘flags of convenience’ or ‘open-​registry countries’ then poignantly emerged.41 On the same occasion, the Working Group suggested that the master of the ship, in the fulfilment of his or her obligations, ‘should not be in any way held liable for undertaking rescue’. This disclaimer did not, however, solve the problem of the economic cost of rescue operations. The following year, the UNHCR proposed the Guidelines for the Disembarkation of Refugees,42 in which the agency took an active role both at the operational and financial levels: ‘On request, UNHCR will reimburse shipowners for costs, which are specially related to the care of refugees rescued at sea, not exceeding US$ 5 per refugee. Furthermore, UNHCR can reimburse shipowners for expenditures incurred in connection with disembarkation of refugees . . . , reimbursement of such incidental expenditures should not exceed US$ 5,000 per ship. . . . Expenses incurred by shipowners, as a direct consequence of rescue [ . . . ] cannot be covered by this programme’. The same document contained a Proposal for a Scheme for the Rescue at Sea Resettlement Offers that tried to respond to another concern of flag and port states, namely the resettlement of rescued refugees. Within the RASRO (Rescue at Sea Resettlement Offers) programme the flag state could ask for an anticipated funding of the costs linked to the arrival of refugees/​displaced persons and to their subsequent integration. At the same time, the coastal states would receive resettlement guarantees in exchange for authorizing disembarkations. The RASRO programme became operational on 1 May 198543 and fifteen states participated therein.44 The UNHCR also continued its dialogue with shipowners and masters expanding the project to the reimbursement of their costs associated with rescuing boat people (the Rescue at Sea Reimbursement Project).45 It also intensified its cooperation with the International Maritime Organization (IMO), which after reaching an agreement with the UNHCR in December 1984, put at the disposal of the latter an expert to assist in matters relating to rescue at sea.46 Despite the significant contribution of the DISERO 40   Report on the Meeting of the Working Group of Government Representatives on the Question of Rescue of Asylum Seekers at Sea held in Geneva, 5–​7 July 1982, 24 August 1982. 41  On the issue of flag of convenience and open-​registry state, see inter alia Dr Ademuni-​Odeke, ‘An examination of Bareboat Charter Registries and Flag of Convenience Registries in International Law’ (2005) 36 Ocean Development and International Law 339; G C Kasoulides, Port State Control and Jurisdiction:  Evolution of the Port State Regime (Martinus Nijhoff 1993) 78 ff; D König, ‘Flag of Convenience’ in Max Planck Encyclopedia of Public International Law (OUP 2009). 42  UNHCR, Problems Related to the Rescue of Asylum-​Seekers in Distress at Sea, 1 September 1983, Annex 1 http://​w ww.unhcr.org/​excom/​scip/​3ae68ccf8/​problems-​related-​rescue-​asylum-​seekers-​distress-​sea.html. 43   Report of the United Nations High Commissioner for Refugees, UN Doc A/​41/​12, 1 August 1986, para 92. 44  Australia, Canada, Denmark, Finland, France, Greece, Japan, New Zealand, Norway, the Netherlands, the United Kingdom, Spain, the USA, Sweden, and Switzerland. 45  UNHCR, Problems Related to Rescue of Asylum Seekers at Sea, 8 July 1985, para 8 http://​w ww.unhcr. org/​excom/​scip/​3ae68cbc20/​problems-​related-​rescue-​asylum-​seekers-​sea.html. 46   Report of the United Nations High Commissioner for Refugees, UN Doc A/​41/​12, 1 August 1986, para139.

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and RASRO programmes in managing and decreasing the number of arrivals, the countries of first asylum continued to express their concerns and voiced the need to find definitive solutions to the problem. The central point of the debate remained the issue of resettlement. In June 1989 the International Conference on Indochinese Refugees was held in Geneva. It marked a worldwide breakthrough in the management of one of the most important migratory crisis, thanks in particular to the adoption of the Comprehensive Plan of Action (CPA).47 The CPA outlined the role which the UNHCR can play in facilitating and organizing international cooperation for the management of irregular migration by sea. During the Indochinese crisis the UNHCR deeply influenced the way in which cooperation took place and the content and fulfilment of any agreement concluded between the countries involved, including the cooperation in the field of search and rescue at sea.

12.3  The UNHCR and the Development of the Search and Rescue Legal Framework The UNHCR has had a fundamental influence in the recognition of the customary nature of the obligation to render assistance at sea. The Indochinese crisis gave the decisive impetus for the adoption of an international legal framework in the field of rescue at sea, with the adoption of the Search and Rescue (SAR) Convention48 and the Safety of Life at Sea (SOLAS) Convention.49 In particular, the adoption of the SAR Convention in 1979 is closely linked to the adoption of the resettlement programmes discussed above and the beginning of the cooperation between the IMO and the UNHCR.

12.3.1 The international legal framework of search and rescue services The duty to render assistance at sea is set out by Article 98 LOSC as follows: 1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; [emphasis added].

Before the adoption of the LOSC, two other international treaties had codified the content of the duty to render assistance: the 1974 Convention on the Safety of Life at Sea (SOLAS Convention) and the 1979 Search and Rescue Convention (SAR Convention). The latter was brought about in the wake of instances of non-​rescue at sea during the

47   As mentioned, the CPA mainly dealt with settlement issues and will thus not be analysed in depth here. For further information on the CPA, see inter alia Bronée (n 38); Lakshmana Chetty (n 17). 48 49   1405 UNTS No 23489.   1184 UNTS No 1861.



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above-​analysed Indochinese crisis, and aimed at clarifying the need to identify the recipient of the obligation to perform the rescue operations and the consequences of their performance. As a result of its repetition in treaties and domestic legislation, and in the light of state practice, even if not always uniform,50 today the duty to render assistance is recognized as a principle of customary law.51 The SAR Convention aims to create an international system for coordinating rescue operations that guarantees their effectiveness and safety. States parties are thus invited to conclude SAR agreements with neighbouring states to regulate and coordinate SAR operations and services in an agreed maritime zone. Such agreements are designed technically and operationally to implement the obligation set out in Article 98(2) of the LOSC, which provides that, where needed, neighbouring states should cooperate through regional agreements to promote and maintain adequate and effective SAR services.52 Such agreements also diminish the risk of non-​rescue incidents. Moreover, they represent an economic advantage for the contracting parties to the extent that they can share the costs arising from organizing and carrying out SAR operations. Carrying out rescue operations, however, does not exhaust the duty to render assistance, which extends to the disembarkation of the rescued persons in a place of safety. Sea-​borne migration and related humanitarian crises have strikingly highlighted this point. The Maritime Safety Committee (MSC) of the IMO adopted two resolutions that amended both the SOLAS53 and SAR Conventions,54 and which entered into force on 1 July 2006. Consequently, pursuant to Article 4.1-​1 of Chapter V/​33 of the SOLAS Convention and Chapter 3.1.9 of the Annex of the SAR Convention, the coastal state responsible for the search and rescue region in which the SAR operation took place shall exercise ‘primary responsibility’ to ensure that the ‘survivors assisted are disembarked from the assisting ship and delivered to a place of safety’ (emphases added).

50   The content of the obligation is still debated. In particular, the disagreement focuses on the obligations of the coastal state in whose SAR zone the rescue operation takes place and on the place where the rescued persons can disembark. See the debate between Mediterranean states (namely, Italy, Malta, and Spain) within the IMO; IMO, ‘Measures to protect the safety of persons rescued at sea, Compulsory guideline for the treatment of persons rescued at sea’, submitted by Spain and Italy (13 February 2009) FSI 17/​15/​1; IMO, ‘Measures to protect the safety of persons rescued at sea, Comments on document FSI 17/​15/​1’, submitted by Malta (27 February 2009) FSI 17/​15/​2. For a comment on this issue see P Mallia, ‘The MV Salamis and the State of Disembarkation at International Law: The Undefinable Goal’ 18 ASIL Insights (May 2014) http://​w ww.asil.org/​insights/​volume/​18/​issue/​11/​mv-​salamis-​a nd-​state-​ disembarkation-​international-​law-​undefinable-​goal; S Trevisanut, ‘Search and Rescue Operations in the Mediterranean: Factor of Cooperation or Conflict?’ (2010) 25 International Journal of Marine and Coastal Law 523. 51   UN Commission on International Law, ‘Commentary on Draft Article 12 of the United Nations Convention on the High Seas’ (1956) UN Doc A/​3179. Many have then supported the customary nature of the obligation; see inter alia C J Colombos, International Law of the Sea (Longman Green & Co. 1954) 304; D P O’Connell, The International Law of the Sea (Clarendon Press 1982) 813–​14. See also R Barnes, ‘Refugee Law at Sea’ (2004) 53 International and Comparative Law Quarterly 47, at 49; E Papastravidis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (Hart Publishing 2013) 294; Trevisanut, ‘Search and Rescue Operations’ (n 50) 527. 52   Article 98(2) of the LOSC states: ‘Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose’. 53 54   MSC.153 (78) 20 May 2004.   MSC.155 (78) 20 May 2004.

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According to the MSC Guidelines,55 a ‘place of safety’ means a location where the rescue operations can be considered as completed. In accordance with Principles 6.13 and 6.14 of the Guidelines, the rescue unit can be the place of safety, but only provisionally. In fact, the text insists on the role that the flag state and the coastal state should play in substituting for the master of the rescuing vessel. Moreover, pursuant to the same guidelines, the state in whose SAR zone the operation took place has the duty to provide or, at least, to secure a place of safety for the rescued persons (Principle 2.5). This Principle does not include a right of entry into the territory of this state by the rescued persons or a right of access to the ports of the coastal state by the rescuing unit. It simply requires that the coastal state carries out the SAR operations and brings them effectively to an end, ie by not leaving the rescued persons (whatever their status)56 at sea or in any other unsafe situation. Given that the MSC Guidelines are not binding, Principle 2.5, however, suggests that the coastal state has a ‘residual obligation’ of allowing disembarkation on its own territory when it has not been possible to do so safely anywhere else.57 This has been clarified by the IMO Facilitation Committee (FAL), which adopted the ‘Principles relating to administrative procedures for disembarking persons rescued at sea’58 in January 2009. Principle 3 establishes that: If disembarkation from the rescuing ship cannot be arranged swiftly elsewhere, the Government responsible for the SAR area should accept the disembarkation of the persons rescued in accordance with immigration laws and regulations of each Member State into a place of safety under its control in which the persons rescued can have timely access to post rescue support [emphasis added].

The fact that the FAL had to intervene indicates that 2004 amendments to the SAR and SOLAS Conventions have been insufficient in order to enhance the safety of persons rescued at sea. The MSC Guidelines and the FAL Principles set out how these amendments should be implemented, but these suggestions have not yet been taken up in practice.

12.3.2 Inter-​institutional dialogue and normative developments The IMO is one of the first institutions with which the UNHCR signed a memorandum of understanding. Cooperation between the two agencies dates back to 1970.59 These   MSC.167 (78) 20 May 2004.  The issue concerning the denial of disembarkation by coastal states was mainly raised in instances where irregular migrants and asylum-​seekers were among the rescued persons. On the issue see inter alia A Fischer-​Lescano, T Löhr, and T Tohidipur, ‘Border Controls at Sea: Requirements under International Human Rights and Refugee Law’ (2009) 21 International Journal of Refugee Law 256; G S Goodwin-​Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-​Refoulement’ (2011) 23 International Journal of Refugee Law 443; E Papastravidis, ‘The EU and the Obligation of Non-​ Refoulement at Sea’ in F Ippolito and S Trevisanut (eds), Migration in the Mediterranean: Mechanisms of International Cooperation (Cambridge University Press 2015) 236; S Trevisanut, ‘The Principle of Non-​ Refoulement at Sea’ (n 25). 57   For a contrary opinion see Papastravidis, The Interception of Vessels on the High Seas (n 51) 299. 58   FAL.3/​Circ.194, 22 January 2009. 59  Executive Committee, Follow-​ up to ECOSOC Resolution 1995/​ 56, Information Note on the Development of Operative Memoranda of Understanding, EC/​46/​SC/​CRP.8, 4 January 1996, at 2. 55

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forty years have allowed the development of the conventions mentioned above and subsequent amendments of principles and standards aimed at facilitating rescue operations at sea in compliance with refugee law and, more generally, human rights law. Following this policy goal, and according to the comprehensive approach to the migratory phenomenon inaugurated with the CPA, the UNHCR has organized in close collaboration with the IMO a series of meetings specifically devoted to rescue at sea of migrants between 2002 and 2014. One of the major results of the cooperation between the UNHCR and the IMO was the publication in 2006 of a leaflet entitled Rescue at Sea: A Guide to Principles and Practice as Applied to Migrants and Refugees.60 This document incorporates in particular the 2004 amendments to the SAR and SOLAS conventions. It emphasized the specific measures and precautions that the rescuing vessel shall adopt when there are refugees or asylum-​seekers among the rescued migrants. It then recalled the duty of the captain of the rescuing unit to protect asylum-​seekers, to inquire about their presence on board, eventually to communicate it to the UNHCR and to disembark them only when all guarantees of protection for the personal safety of the asylum-​seekers, including the principle of non-​refoulement61 have been confirmed. The document clearly incorporates the Guidelines developed by the IMO MSC concerning the interpretation of the 2004 amendments to the SAR and SOLAS conventions.62 Principle 6.17 of the MSC Guidelines provides: The need to avoid disembarkation in territories where the lives and freedoms of those alleging a well-​founded fear of persecution would be threatened is a consideration in the case of asylum-​seekers and refugees recovered at sea.63

A meeting on Refugees and Asylum-​Seekers in Distress at Sea—​How Best to Respond? was held in Djibouti in 2011. The meeting aimed at discussing with governments and other stakeholders, such as the UNHCR, about possible cooperation mechanisms in order to share burdens and responsibilities related to distress at sea situations involving refugees and asylum-​seekers.64 The discussion was based on a background paper prepared by the UNHCR65 in which the agency presented possible tools for organizing and enhancing cooperation. The discussions focused on two tools in particular: a model framework for cooperation and mobile protection response teams. The model framework builds up on the experience of the UNHCR during the Indochinese crisis and tries to repeat the success of the CPA.66 It also mirrors the efforts within the IMO concerning a Regional Agreement on Concerted Procedures Relating to the Disembarkation of Persons Rescued at Sea for the Mediterranean region.67 60  See http://​w ww.unhcr.org/​publications/​brochures/​450037d34/​rescue-​sea-​guide-​principles-​practice-​ applied-​migrants-​refugees.html. 61 62 63   See above (n 24).   See above (nn 53–​54).   See above (n 55). 64   The Summary Conclusions and other related documents from the Djibouti Meeting are available at http://​w ww.refworld.org/​pdfid/​4ede0d392.pdf. 65  UNHCR, Background Paper: Refugees and Asylum-​Seekers in Distress at Sea—​How Best to Respond? Expert Meeting in Djibouti, 8–​ 10 November 2011, October 2011 http://​w ww.refworld.org/​docid/​ 4ec211762.html. 66  A Klug, ‘Strengthening the Protection of Migrants and Refugees in Distress at Sea through International Cooperation and Burden-​Sharing’ (2014) 26 International Journal of Refugee Law 1. 67   IMO Facilitation Committee, 37th session, FAL 37/​6/​1, 1 July 2011.

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The mobile protection response teams are supposed to be temporary teams which would include experts, with different backgrounds, from several governments, the UNHCR, other international organizations, and non-​governmental organizations. These teams could be established on a stand-​by basis and deployed, on request, to support and develop host government capacity in reception and processing of rescued persons upon arrival.68 Both tools thus target the treatment of refugees and asylum-​ seekers from the moment of the disembarkation. The UNHCR also suggested the development of standard operating procedures (SOPs) for shipmasters in the event of a distress at sea situation involving refugees and migrants.69 Those procedures are meant to supplement the 2006 leaflet elaborated by the UNHCR in cooperation with the IMO. The background paper interestingly attempts to provide a definition of distress situation that would trigger SAR obligations: SAR activities should be initiated wherever there are indications that a vessel or the conditions of the people on board do not allow for safe travel, creating a risk that people may perish at sea. Relevant factors include overcrowding, poor conditions of the vessel, or lack of necessary equipment and expertise.70

This definition is an important attempt by the UNHCR to contribute to the existing legal framework by offering a harmonized interpretation of the material scope of application of the SAR system. Moreover, the SOPs would ideally be incorporated in ‘industry best practices’ in conjunction with the International Chamber of Shipping.71 To the knowledge of the present author, such a development has not occurred yet. Last but not least came the High Commissioner’s 2014 Dialogue on Protection at Sea.72 This meeting addressed many of the challenges that the never-​ending migratory and humanitarian crisis in the Mediterranean poses. It consisted of a key element of the UNHCR’s two-​year Global Initiative on Protection at Sea.73 The main goals of the Global Initiative are to support states in order to: reduce loss of life at sea, as well as exploitation, abuse and violence experienced by people travelling irregularly by sea, and . . . establish protection-​sensitive responses to irregular mixed migration by sea.74

The UNHCR has once again affirmed the importance of the SAR regime, encouraged compliance with it, and repeated the need for further cooperation, in particular at the regional level.75 At the 2014 meeting, the UNHCR together with the IMO, the International Organization for Migration (IOM), the Office of the United Nations High Commissioner for Human Rights, and the UN Office on Drugs and Crime  ibid 59.  UNHCR, Background Paper: Refugees and Asylum-​Seekers in Distress at Sea (n 65) Annex D. 70 71  ibid.   Djibouti meeting, Summary Conclusions, para 17. 72   Seventh High Commissioner’s Dialogue on Protection Challenges (Geneva, 10–​11 December 2014) http://​w ww.unhcr.org/​high-​commissioners-​dialogue-​on-​protection-​challenges-​2014.html. 73  UNHCR, High Commissioner’s Dialogue on Protection Challenges: Protection at Sea, Global Initiative on Protection at Sea (Geneva, 1 May 2014) http://​w ww.unhcr.org/​5375db0d9.html. 74  ibid 1. 75   ibid 2. See also UNHCR, High Commissioner’s Dialogue on Protection Challenges: Protection at Sea, Background Paper (Geneva, 11 November 2014) http://​w ww.unhcr.org/​5464c3dc9.html. 68 69



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(UNODC) issued a Joint Statement on Protection at Sea in the Twenty-​First Century. In this document, the UN bodies once more draw attention on how the many lives lost at sea are challenging the ‘time-​honored tradition of rescue at sea enshrined in international law’, which applies ‘regardless of the migration status of the persons in distress at sea’.76 Once again, the UNHCR has affirmed the customary nature of the duty to render assistance and the need to interpret this obligation within its normative context,77 which includes refugee law and human rights law when dealing with migrants at sea.

12.4  The Contribution of UNHCR to Ocean Governance In addition to the IMO, the UNHCR is part of a network of cooperation between various agencies and specialized agencies of the United Nations, including the Division for Ocean Affairs and the Law of the Sea (DOALOS), the International Labour Organization (ILO), the IOM and the Office of the United Nations High Commissioner for Human Rights. The inter-​institutional dialogue confirms the need for a comprehensive approach to migration. This cooperation influences regulatory developments and the consequent consideration and integration of interests that do not properly belong to a specific legal system. An example of this inter-​institutional dialogue and cooperation is certainly the progressive integration in the law of the sea of the principle of non-​refoulement and other human rights obligations in the context of SAR operations and, more generally, in the framework of enforcement measures. However, the use of the law of the sea legal categories by the UNHCR also attempts to define some of them.78 The efforts of the UNHCR in the last forty years have contributed in showing the complementarity between the law of the sea, on the one hand, and refugee and human rights law, on the other.79

76   Joint Statement on Protection at Sea in the Twenty-​First Century (Geneva, 10 December 2014) http://​w ww.unhcr.org/​news/​press/​2014/​12/​5 48825d59/​u nhcr-​iom-​i mo-​u nodc-​ohchr-​joint-​statement-​ protection-​sea-​t wenty-​first-​century.html. 77   Article 31(3)(c) of the Vienna Convention on the Law of Treaties (1155 UNTS No 18232) provides that, when interpreting a treaty: ‘There shall be taken into account, together with the context: (c) Any relevant rules of international law applicable in the relations between the parties’. 78   We refer to the above-​mentioned definitions of ‘interception’ (see n 27) and ‘distress’ (see n 70). 79   Many authors have also supported the complementarity of these fields of law and a harmonized interpretation of the obligations deriving from the different applicable instruments. See inter alia M Giuffrè, ‘State Responsibility Beyond Borders: What Legal Basis for Italy’s Push-​backs to Libya?’ (2012) 24 International Journal of Refugee Law 692, at 733; E Papastravidis, ‘Rescuing Migrants at Sea:  The Responsibility of States under International Law’ (Academy of Athens, 27 September 2011) http://​papers. ssrn.com/​sol3/​papers.cfm?abstract_​id=1934352.

PA RT   I I I H U M A N H E A LT H A N D H U M A N   R IGH T S

13 Healthy Oceans for Healthy Lives The Contribution of the World Health Organization to Global Ocean Governance Stefania Negri

13.1  Oceans and Human Health ‘Oceans and human health’ is a new interdisciplinary area of research, which brings together the natural and social sciences in order to study the connections between the marine environment and public health. Building on a robust body of scientific evidence showing that human health and ocean health are inextricably linked, this field of investigation has rapidly evolved into an area of growing global importance.1 Nowadays, a general consensus has been reached on the relevance of the relationships between the oceans, human activities, and human well-​being, and the range and complexity of these interactions are increasingly acknowledged by researchers, policy-​ makers, and international bodies. As researchers have demonstrated, these connections can result in both advantages and risks for human health. People are exposed to environmental conditions, nutrients, pathogens, and other agents associated with the oceans through a variety of media and pathways, including direct contact with or ingestion of sea water during work, recreation, or inundation events; consumption of seafood; and exposure to ocean-​borne agents in near-​shore sand, sediments, or air. Depending on the nature of the exposure and the characteristics of the affected populations, this exposure can bring about beneficial or adverse effects, whose impacts can be seen at both the local and the global scale. On the one hand, oceans provide invaluable benefits and services, which improve human health at various levels: oceans play an important role in climate regulation and strongly affect weather patterns, transferring heat from the equator to the poles and moderating carbon dioxide levels in the atmosphere; seafood concurs to the food 1   From Monsoons to Microbes: Understanding the Ocean’s Role in Human Health (National Academy Press 1999); Lora E Fleming and others, ‘Oceans and Human Health: Emerging Public Health Risks in the Marine Environment’ (2006) 53 Marine Pollution Bulletin 545; Hauke L Kite-​Powell and others, ‘Linking the Oceans to Public Health: Current Efforts and Future Directions’ (2008) 7 Environmental Health S6; Jailson Fulgencio de Moura and others, ‘Marine Environment and Public Health’ in Gbolagade Akeem Lameed (ed), Biodiversity Conservation and Utilization in a Diverse World (InThec 2012); Lora E Fleming and others, ‘The Oceans and Human Health’ in Lora E Fleming and others (eds), Oxford Research Encyclopedia of Environmental Science (OUP 2015) http://​environmentalscience.oxfordre. com/​ (last accessed 15 October 2016); Fiona McGowan (ed), ‘Oceans and Human Health’ (February 2016) Special Issue of the Journal of the Marine Biological Association.

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security of hundreds of millions of people, providing a major food staple and protein source for almost a third of the global population; marine plants and animal species are a source for novel pharmaceutical and biomedical products; and, finally, recreational use of water in fresh and coastal waters can deliver important benefits to health and well-​being. On the other hand, the health of individuals and populations can be adversely affected by exposure to potential harmful effects owing to anthropogenic and natural factors including  harmful algal blooms, microbes, and chemical pollutants in the oceans; consumption of seafood contaminated with bacteria or viruses; and flooding events. Some risks, such as the acute health effects caused by toxins associated with shellfish poisoning and red tide, are relatively well understood. Other risks, such as those posed by chronic exposure to many anthropogenic chemicals, pathogens, and naturally occurring toxins in coastal waters, are less well quantified. This proves that, after all, knowledge of the links between the oceans and human health is still in its infancy and sometimes remains inadequate to make the science-​based decisions that are needed.2

13.1.1 Benefits to human health provided by the oceans Interdisciplinary studies have contributed to raise public awareness that healthy oceans contribute to healthy lives. The major benefits and services that oceans and coastal waters provide to human health and well-​being concern the supply of food and water, marine bioproducts, and recreational water activities.

(a) Food and water Our health is directly reliant upon the health of the ocean for our most basic needs, food and water. Worldwide, fish are an important resource for food security and nutrition. Hundreds of millions of people depend on the oceans for food and on the maritime sector and coastal economic activities for their livelihoods. More than three billion people derive at least one-​fifth of their needed protein from freshwater and saltwater fish, and in some parts of the world fish provide the sole source of animal protein. The aquaculture industry, which has become the fastest growing sector of the world food economy, now supplies more than 25 per cent of the globe’s seafood consumption. Mariculture, in particular, has the potential to supply a significant part of the ever-​increasing global demand. With regard to the dietary value of seafood, it has also to be noted that the desire and need for a relatively low fat source of protein is increasingly rising as the pandemic of chronic diseases, including heart disease and obesity, continues to plague ever larger parts of the world population. Health benefits deriving from a regular intake of seafood have been widely demonstrated by epidemiological studies and the

  US Commission on Ocean Policy, An Ocean Blueprint for the 21st Century (Final Report 2004) 23.

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consumption of fish is highly recommended by the World Health Organization (WHO) as an important component of healthy diets.3 The oceans are also a possible source of water for human consumption. Worldwide, some 700 million people do not have access to enough clean water and by 2025 the number is expected to explode to 1.8 billion. Desalinization of seawater, which is energy-​consuming and still too expensive to replace the use of local freshwater, might represent the viable future alternative to alleviate regional shortages and growing water conflicts. As is well known, groundwater is being over-​pumped, dams have already been built that outweigh the number of those that were economically and environmentally affordable, and nearly all of the accessible rivers have been tapped. Therefore, despite the economic and environmental hurdles associated with it, desalinization is becoming increasingly attractive as the world runs out of water from other sources.4

(b) Marine-​derived bioproducts The ocean provides the largest living space on Earth and is home to millions of known species, with millions more yet to be discovered. Scientists believe that only a fraction of the organisms that live in the ocean have been documented, underscoring the vast potential of the oceans as a source of new chemicals. Marine biodiversity represents a treasure trove of potentially useful organisms and chemicals, which have potential commercial uses, especially in the fields of health care and nutrition. In fact, these products can be developed not only as pharmaceuticals, but also as nutritional supplements, medical diagnostics, cosmetics, agricultural chemicals (pesticides and herbicides), enzymes, and chemical probes for disease research, and for many other applications. Over the last decades, thousands of new biochemicals have been discovered in marine organisms, such as sponges, soft corals, molluscs, bacteria, and algae. In recent years, several of these compounds have undergone clinical testing as potential treatments for disease. For example, a chemical originally derived from a sea sponge is now the basis of an antiviral medicine and two anti-​cancer drugs; blood drawn from the horseshoe crab is used to detect potentially harmful toxins in drugs, medical devices, and water; a synthetic drug that copies the molecular structure of a salmon gland extract is one of the new treatments available to fight osteoporosis; and coral, mollusc, and echinoderm skeletons are being tested as orthopaedic and cosmetic surgical implants. Marine bioproducts with anti-​inflammatory and cancer-fighting properties are just a few examples of the promising medical advances found in the oceans. Progress has  WHO (Joint WHO/​FAO Expert Consultation), ‘Diet, Nutrition and the Prevention of Chronic Diseases’, Technical Report Series 916 (2003). 4   As a matter of fact, some countries have already heavily invested in modern engineering and desalinization technology and may reach 50 per cent of their water supply. See David Talbot, ‘Megascale Desalinisation:  The World’s Largest and Cheapest Reverse-​Osmosis Desalination Plant is up and Running in Israel’ (2015) MIT Technology Review www.technologyreview.com/​s/​534996/​megascale-​ desalination/​ (last accessed 10 October 2016); David Talbot, ‘Desalinisation out of Desperation’ (2016) MIT Technology Review www.technologyreview.com/​s/​533446/​desalination-​out-​of-​desperation/​ (last accessed 10 October 2016). 3

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also been made in finding treatments for other human ailments, including infectious diseases, chronic pain, and arthritis. Several marine-​derived compounds, explored initially as potential pharmaceuticals, are also available commercially as molecular probes. These probes are special chemical compounds that researchers can use to study important biochemical processes. Their value in resolving the complexities of diseases has often outweighed their economic and medicinal value as commercial pharmaceuticals. Moreover, molecular probes often offer attractive opportunities for commercialization, with revenues generated in a shorter time than pharmaceuticals because lengthy regulatory approvals are not required for research that does not involve human subjects. As said above, another important field of application of sea products for human health concerns marine-​derived nutritional supplements, or ‘nutraceuticals’, which present new opportunities for research and development and also represent a large potential market. Last but not least, mention has to be made of the use of marine organisms as models for human systems in the field of biomedical research. The diversity of life found in the oceans offers vast opportunities for the discovery of organisms that can be used to investigate biological processes analogous to those found in humans. Studies on the biology of primitive vertebrates and other marine animals offer insights into the evolution and physiology of humans and other organisms. For example, scientists are using the damselfish to study cancer tumours, the sea hare and squid to investigate the nervous system, and the toadfish to investigate the effects of liver failure on the brain.

(c) Recreational water activities Recreational water activities can have substantial benefits to health and well-​being. Recreational uses of inland and marine waters are increasing in many countries worldwide and nowadays represent an important part of leisure and tourism. These uses range from whole-​body water contact sports, such as swimming, surfing, and canoeing, to non-​contact sports, such as fishing, walking, and sailing. Water-​based exercise improves mental health and the quality of life; it decreases disability and can also help people with chronic diseases. Swimming, in particular, is recognized as one of the most beneficial forms of exercise and is also an important therapy for rehabilitation. Gathering the legacy of the ancient Greek concept of thalassotherapy, researchers are now studying the public health benefits of ‘blue environments’ and the healthpromoting potential of marine coasts through such projects as the ‘Blue Gym’. This programme is designed to promote health and well-being by re-​engaging people with outdoor activities in and around coastal and other aquatic environments, building on the assumption that this may encourage them to both improve their own health and to value and conserve the marine environment.5

5   Michael H Depledge and William J Bird, ‘The Blue Gym: Health and Wellbeing from our Coasts’ (2009) 58(7) Marine Pollution Bulletin 947.



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13.1.2  R  isks for public health associated with anthropogenic and natural hazards Ocean and coastal ecosystems continue to show signs of degradation owing to a variety of stressors which adversely impact the health of the ocean, thereby also compromising human health. Coastal and ocean water quality is threatened by multiple sources of pollution, including point, non-​point, and atmospheric sources, as well as human activities on land and in the ocean itself (including vessel and offshore installations pollution). Climate change and natural disasters equally menace the health and lives of coastal populations. But also overfishing, habitat destruction, ocean warming, and acidification are seriously endangering ocean health and human health in turn. The major problems are experienced in coastal areas. The heavy concentration of human activities in these areas, combined with pollutants flowing from waterways and others carried through the air great distances from their source, are the primary causes of a number of environmental problems plaguing coastal waters—​problems which include nutrient enrichment, hypoxia, harmful algal blooms, toxic contamination, and sedimentation—​that inevitably pose serious public health risks. Threats associated with exposure to degraded coastal waters include waterborne pathogens associated with faecal contamination of water; microbiological pollution and anthropogenic chemicals (persistent organic pollutants, pharmaceutically active products, and heavy metals such as mercury) associated with industrial waste effluents. Primary sources of these chemical and microbial ocean-​borne threats are anthropogenic activities that generate both point and non-​point pollution, such as combined sewer overflows, wastewater treatment failures, permitted and non-​ permitted industrial discharges, and urban and agricultural run-​off. There are also naturally occurring waterborne chemical toxicants and pathogens that can adversely affect people; these include arsenic (a heavy metal) and vibrios (bacterial pathogens). Many other pathogens of zoonotic origin have become an increasing concern; they are associated mainly with feral, agricultural, and domestic animals and include a wide range of waterborne parasitic and bacterial pathogens and enteric viruses. Waste is another major problem. Marine debris is the enormous amount of trash, abandoned fishing gear, and other waste that can be found drifting around the global ocean and washing up along its coastlines, posing serious threats to wildlife, habitats, and human health and safety. Approximately 80 per cent of this debris originates on land, either washed along in run-​off, blown by winds, or intentionally dumped from shore, while 20 per cent comes from offshore platforms and vessels, including fishing boats.

(a) Chemical pollution Marine coastal environments are characterized by the presence of different pollutants originating from terrestrial and atmospheric sources. Chemicals such as polychlorinated biphenyls (PCBs) and toxic metals including mercury enter the oceans from rivers and from atmospheric deposition, or direct disposal into the ocean. Once there,

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they accumulate in finfish and shellfish, posing potentially serious long-​term health threats to consumers. Human-​produced chemical inputs to coastal waters include industrial, domestic, and agricultural nutrients, pesticides, road run-​off, personal care products, disinfectants, pharmaceuticals, and novel chemicals. Three general categories of chemicals are of particular concern in the marine environment: oil, toxic metals, and persistent organic pollutants. Human activities in coastal zones, such as agriculture, urban development, fisheries, coastal industries, and aquacultures have contributed to chemical, physical, and ecological impacts (eg metals, persistent organic pollutants, nanoparticles, radionuclides, and nutrients) that are known adversely to affect the marine ecological system and marine biodiversity. Ordinary activities contribute significantly to the degradation of the marine environment, from excessive application of fertilizers, pesticides, and herbicides on lawns, to waste washed off city streets into rivers and coastal waters.

(b) Microbiological pollution and waterborne pathogens A host of microorganisms exist in marine waters, filling their roles in the ecosystem and generally causing no problems to humans. However, the number and distribution of marine pathogens can change over time owing to many environmental factors. Human impacts can produce even greater fluctuations that threaten the health of humans, marine organisms, and the marine ecosystems on which we all depend. Marine organisms, such as bacteria, algae, and viruses, can be sources of human illness. Although these microorganisms exist naturally in the ocean, human actions can lead to ocean conditions that greatly increase their growth, harming the health of humans, marine species, and ecosystems. Although only a small percentage of these organisms cause disease in humans, they may pose a significant public health risk. Exposure to such harmful bacteria and viruses primarily happens by eating contaminated seafood (especially raw seafood) and by direct intake of seawater. Scientists have reported that excessive human releases of nutrients and pollution into the ocean, and a subtle, yet measurable, rise in ocean surface temperatures are causing an increase in waterborne pathogens. Untreated wastewater is one major problem since it contains infectious microbes. If these microbes reach the seas, they can infect humans both when they sea-​bathe and when they consume fish and shellfish. Similar contamination also arises from animal excrement. Also, sanitary sewers pose serious hazards. When total water volumes exceed the system’s capacity, the overflow enters receiving waters without treatment. Sanitary sewer systems, which are designed to transport only domestic sewage and industrial wastewater, can also under some circumstances overflow, discharging untreated wastewater. An incredibly large number of sewers overflow every year, discharging wastewater directly into rivers, estuaries, and oceans, thus causing human health problems and closures of beaches and shell fishing areas. In bathing waters, the probability of respiratory and intestinal diseases and infections for bathers rises in an almost direct relationship with the sewage pollution in the water. It was estimated that bathing in polluted seas causes some 250 million cases a



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year of gastroenteritis and upper respiratory disease, and 50,000–​100,000 people die annually from infectious hepatitis. The same study estimated that eating contaminated shellfish is responsible for the loss every year of 3,500,000–​7,000,000 disability-​ adjusted life-​years (a standard measure of time lost owing to premature death and time spent disabled by disease), putting it in the same bracket as stomach cancer, intestinal nematodes, and upper respiratory tract infections.6

(c) Harmful algal blooms The term ‘harmful algal bloom’ (HAB) is used to describe destructive concentrations of particular algal species in ocean waters. These blooms are sometimes called red tides because the high algal density can make the ocean surface appear red, but they may also be green, yellow, or brown, depending on the type of algae present. These blooms are considered ‘harmful’ when they create public health risks or adversely affect the local ecology by producing very potent natural toxins, which are neurotoxins, hepatotoxins, dermatotoxins, and, in some cases, carcinogens. Exposures occur when people or animals eat contaminated food, drink contaminated water, contact contaminated water with their skin, or inhale contaminated aerosols. These toxins can cause acute and chronic effects, and high exposures can be lethal. Marine toxins afflict more than 90,000 people annually across the globe and are responsible for an estimated 62 per cent of all seafood-​related illnesses. In the last two decades, reports of gastrointestinal and neurological diseases associated with algal blooms and waterborne bacteria and viruses have increased. The underlying physical, chemical, and biological causes for most harmful algal blooms are not well understood, but an increase in distribution, incidence, duration, and severity of HABs has been documented within recent decades. In many areas, increases in nutrients in coastal waters, from point and non-​point sources of pollution, and higher numbers of invasive species released from ships’ ballast water mirror the increase in HAB events, suggesting a possible causal connection. These areas are incubators for many types of algal blooms because the nutrients create conditions for rapid growth of large and dense algal blooms. When the algae die, their decomposition consumes the dissolved oxygen that other organisms need for survival.

(d) Pollution from vessels Vessels ranging from large cruise ships to small recreational boats discharge wastes into coastal waters. The waste streams from recreational vessels primarily contain sewage, while cruise ships discharge both sewage and toxic substances. These wastes, if not properly disposed of and treated, can be a significant source of pathogens and nutrients with the potential to threaten human health and damage shellfish beds, coral reefs, and other aquatic life.

6   GESAMP (Joint Group of Experts on the Scientific Aspects of Marine Protection), Protecting the Oceans from Land-​based Activities (Arendal 2001).

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(e) Atmospheric pollution Atmospheric deposition of pollutants can also harm water quality, aquatic resources, and human health. Major atmospheric pollutants include nutrients, metals such as lead and mercury, pesticides, polycyclic aromatic hydrocarbons, dioxins, furans, and persistent toxic substances. Sources of atmospheric deposition are quite varied and include agriculture, incineration, coal-​fired power plants, industrial facilities, and motor vehicles, as well as natural sources such as forest fires, lightning, and volcanoes.

(f) Climate change and natural events The impacts that even gradual climate change can have on coastal development, ecosystems, and human health are remarkable, ranging from sea level rise, to increased water temperatures, ocean acidification, and the alteration of the distribution of microorganisms. Pathogens limited to tropical waters move toward the poles as sea temperatures rise and disease outbreaks are fuelled by the warming of coastal surface waters which creates ideal growth conditions for bacteria such as Vibrio cholerae. Moreover, the intrusion of these warmer, infected waters into rivers can eventually lead to mixing with waters used for drinking and public hygiene. Changes in climate not only affect average temperatures, but also extreme temperatures, increasing the likelihood of weather-​related natural disasters, including intense storms and cyclones with higher wind speed. Indeed, the most obvious impact of global climate change on human health is from extreme weather events such as cyclones, which appear to be increasing in both incidence and intensity and with variable predictability. As Hurricane Katrina (August 2005), the Burmese cyclone (May 2008), and Hurricane Sandy (October 2012) have demonstrated, coastal populations are highly vulnerable to the morbidity and mortality associated with extreme coastal events. The 2004 Indian Ocean tsunami killed more than 230,000 people in fourteen countries. Flooding caused by hurricanes or tsunamis create huge life and economic loss, habitat loss and spread waterborne and other diseases. The health impacts of such major events can be acute (eg trauma, drowning, starvation, vector-​borne diseases) and are often followed by more chronic issues such as mental illness, malnutrition, and population migration, which can last for years.

13.2  The World Health Organization 13.2.1 Institutional profile and position in the United Nations system The World Health Organization (WHO) was established by the International Health Conference held in New York from 19 June to 22 July 1946. The idea of instituting an international organization whose mandate would cover all fields of public health was launched during the San Francisco Conference. In the intentions of its founders, this new health organization would represent the central inter-​governmental body entrusted with developing multilateral cooperation on health matters at global level and on a solid institutional basis. The WHO was in fact



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meant to substitute all the existing institutions and international sanitary bodies created during the twentieth century,7 with a view to overcoming fragmentation and multiplication of efforts while ensuring guidance, coherence, and unity of action in health governance.8 The WHO was officially born on 7 April 1948—​a date which is now celebrated every year as World Health Day—​following the entry into force of the Constitution of the WHO. Building on the principles of universal membership,9 openness to observers,10 and cooperation with the civil society and non-​governmental organizations (NGOs),11 the WHO has definitely become a prominent global player on the international scene and the leading actor in global health governance. It operates through more than 150 country offices,12 six regional offices,13 and its headquarters in Geneva. Within the United Nations system, the WHO has the status of a specialized agency in accordance with Article 57 of the UN Charter.14 This means that it is an autonomous organization with international legal personality, working with the UN and cooperating with other specialized agencies15 through the coordinating machinery of the Economic and Social Council,16 at the inter-​governmental level, and through the chief executives board for coordination at the inter-​secretariat level. In this broad cooperative framework, UN bodies, funds, programmes, and other specialized agencies participate at the World Health Assembly—​one of the governing bodies of the WHO and its main decision-​making organ—​as observers and can deliver statements. Moreover, as the directing and coordinating authority on international health work, the WHO participates in different UN coordination mechanisms that address social, economic, 7   See eg the Pan American Sanitary Organization, the International Office of Public Hygiene, the Health Organization of the League of Nations. 8   Gian Luca Burci and Claude-​Henri Vignes, World Health Organization (Kluwer 2004). 9   The WHO today has 194 member states. 10   The Constitution of the WHO does not recognize an observer status but the Rules of Procedure of the World Health Assembly give the Director-​General the right to invite observers to the annual Assembly meeting, in line with art 18(h) of the Constitution. Therefore, despite the lack of constitutional provision, the status of observer has taken roots by means of a well-​established practice and five observers are regularly invited to attend sessions at the Assembly: the Holy See, the Order of Malta, the International Committee of the Red Cross, the International Federation of the Red Cross and Red Crescent Societies, and Palestine. See Burci and Vignes (n 8) 36–​38. 11   See WHO, ‘Civil Society Initiative, WHO and Civil Society: Linking for Better Health’ (2002). 12   Under the WHO Constitution, arts 66 to 68, the organization enjoys in the territory of each of its members both legal capacity and the privileges and immunities as may be necessary for the exercise of its functions. 13   See WHO Constitution, ch XI (Regional Arrangements). WHO member states have been grouped into six regions:  Africa, the Americas, South-​east Asia, Europe, the Eastern Mediterranean, and the Western Pacific. 14   See WHO Constitution, art 69 and the Agreement between the United Nations and the World Health Organization, adopted by the First World Health Assembly on 10 July 1948. 15   In 1948 the First World Health Assembly adopted bilateral agreements with ILO, FAO, UNESCO; further agreements were adopted in 1980 with IFAD (resolution WHA33.21), in 1989 with UNIDO (resolution WHA42.21), and in 1999 with UPU (resolution WHA52.6). 16   Pursuant to arts 63 and 64 of the UN Charter, the Economic and Social Council may enter into agreements with specialized agencies in order to define the terms of their relationship with the UN. It may coordinate the activities of the agencies through consultation with and recommendations to them. The Council may also take appropriate steps to obtain regular reports from the specialized agencies. This reporting activity is expressly mentioned in art 18(j) of the WHO Constitution.

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and environmental matters. It is also actively engaged in regular policy reviews of the UN system, inter-​agency efforts to strengthen UN presence at the country level, as well as in discussions on effective support to its member states in responding to challenges of sustainable development. Collaboration with the UN system is a standing item on the World Health Assembly agenda and each year a report on ‘Collaboration within the United Nations system and other intergovernmental organizations’ is presented by the WHO Secretariat. Beyond the UN system, the WHO has progressively increased cooperation with other international organizations17 and NGOs.18 At present, the number of NGOs which are in official relations with it has reached 206.19 The objectives of the WHO’s collaboration with NGOs are to promote the policies, strategies, and programmes derived from the decisions of the WHO’s governing bodies, to collaborate with regard to various WHO programmes in jointly agreed activities to implement these strategies, and to play an appropriate role in ensuring the harmonizing of inter-​sectoral interests among the various sectoral bodies concerned in a country, regional or global setting. During its sixty-​ninth session, held in May 2016, the World Health Assembly adopted the WHO Framework of Engagement with Non-​State Actors (FENSA), which represents a major step in WHO’s governance reform. It provides the WHO with comprehensive policies and procedures on engaging with NGOs, private sector entities, philanthropic foundations, and academic institutions.20

13.2.2 Governing texts and governing bodies The Constitution of the WHO was adopted by the International Health Conference on 22 July 1946 and signed by the representatives of sixty-​one states. It entered into force on 7 April 1948, with the deposit with the UN Secretary-​General of the required twenty-​sixth legal instrument of acceptance.21 The preamble of the Constitution sets the fundamental principles underlying the WHO’s mandate and activities. Some of these principles stand out for their innovative approach to global health governance and for positioning health at the core of the collective interests of the international community. In this respect, special mention has to be made of the principles stating that ‘[t]‌he health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-​operation of individuals and States’ and that ‘[t]he achievement of any State in the promotion and protection of health is of value to all’.

17   The Health Assembly has adopted agreements with IAEA in 1959 (res WHA12.40), with the Office International des Épizooties in 2004 (res WHA57.7), with the Commission of the African Union in 2012 (res WHA65.16), with the South Centre in 2013 (res WHA66.20). 18   WHO Constitution, arts 70–​71. 19  List available at http://​who.int/​about/​who_​reform/​non-​state-​actors/​in-​official-​relations/​en/​ (last accessed 15 October 2016). Only two of them specifically deal with water-​related issues (International Water Association and WaterAid). 20  See also the Principles Governing Relations between the World Health Organization and Nongovernmental Organizations, adopted by the World Health Assembly in 1987 (resolution WHA40.25). 21   WHO Constitution, art 80.



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Pursuant to Article 1 of its Constitution, the WHO’s objective is ‘the attainment by all peoples of the highest possible level of health’, which is defined in the preamble as ‘a state of complete physical, mental and social well-​being and not merely the absence of disease or infirmity’. In order to fulfil its constitutional mandate, the WHO is endowed with functions and powers of both normative and technical character, which are enumerated in Article 2. This lengthy list of functions includes direction and coordination of international health work; close inter-​institutional cooperation within the UN system and beyond it; technical assistance to governments; promotion, research, and assistance in all fields of health; normative functions including the adoption of conventions, agreements, and regulations; the development and establishment of international standards and nomenclatures. The Constitution also shapes the institutional structure of the WHO, which is articulated in three main bodies: the World Health Assembly, the Executive Board, and the Secretariat. The Health Assembly is the major governing and decision-​making body, endowed, inter alia, with the authority to adopt conventions and agreements on any matter within the competence of the WHO,22 as well as regulations on a broad range of health issues including: sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease; nomenclatures with respect to diseases, causes of death, and public health practices; standards with respect to diagnostic procedures for international use; standards with respect to the safety, purity, and potency of biological, pharmaceutical, and similar products moving in international commerce; advertising and labelling of biological, pharmaceutical, and similar products moving in international commerce. Regulations of the Health Assembly are particularly important since they are binding on all member states, unless they opt out through notification of rejection to the Director-​General.23 This regulatory power, albeit underused,24 is a noteworthy distinctive element which makes the WHO one of the very few specialized agencies empowered with decision-​making authority, which is crucial to the fulfilment of its governance responsibilities at the global level. In addition, the Health Assembly has produced a number of soft law instruments such as guidelines and codes, which are equally relevant. The decisions and resolutions issued by the governing bodies are considered the corpus juris of the WHO.25 The Executive Board performs executive, advisory, and supporting functions for the Health Assembly, but also has the power to take emergency measures within the 22   In the realm of treaty-​making, the WHO only produced the Framework Convention on Tobacco Control (adopted by the World Health Assembly on 21 May 2003 and entered into force on 27 February 2005)  and the Protocol to Eliminate Illicit Trade in Tobacco Products (adopted by consensus on 12 November 2012 at the fifth session of the Conference of the Parties to the FCTC, not yet in force). 23   See WHO Constitution, arts 19–​22. 24   The Regulations adopted so far are the International Sanitary Regulations, first approved by the Fourth World Health Assembly in 1951, later revised and renamed as International Health Regulations (IHR) in 1969 (res WHA22.46), amended in 1973 (res WHA26.55) and 1981 (res WHA34.13), and completely revised in 2005 (res WHA58.3). 25   Burci and Vignes (n 8) para 7.

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functions and financial resources of the WHO to deal with events requiring immediate action.26 Within the Secretariat, the Director-​General serves as the chief technical and administrative officer and is ex officio Secretary of the Health Assembly, of the Board, of all commissions and committees of the WHO. Moreover, since the entry into force of the revised International Health Regulations (IHR 2005), the Director-​General has the responsibility of determining whether an extraordinary (ie serious, unusual, or unexpected) health event that threatens international public health is a ‘public health emergency of international concern’ under the terms of the Regulations and requires immediate international action in accordance with the advice given by the IHR Emergency Committee.27 Besides the Constitution, other important texts governing the WHO are the Rules of Procedure adopted by the governing bodies and the thematic Regulations issued in specific areas, like the Financial Regulations, the Staff Regulations, the Regulations for expert advisory panels and committees, and the Regulations for study and scientific groups, collaborating institutions and other mechanisms of collaboration.28

13.2.3 Competence and activity in the field of environmental health The WHO has become over time an important global player in the field of environmental health and safety. Article 2(i) of the WHO Constitution confers on the WHO the function ‘to promote, in co-​operation with other specialized agencies where necessary, the improvement of nutrition, housing, sanitation, recreation, economic or working conditions and other aspects of environmental hygiene’.29 This provision contains the only reference lato sensu to the environment to be found in the constitutional text of the WHO and represents the legal basis for the remarkable work accomplished by the WHO in environmentally related matters impacting on public health. Environmental hygiene is broadly understood as encompassing all measures undertaken to keep the human environment safe and healthy to live in, including waste disposal, clean water supplies, food safety controls, and good housing. The WHO, however, generally refers to the concept of ‘environmental health’ which is defined as follows: ‘Environmental health addresses all the physical, chemical, and biological factors external to a person, and all the related factors impacting behaviours. It encompasses the assessment and control of those environmental factors that can potentially affect health. It is targeted towards preventing disease and creating health-​supportive environments. This definition excludes behaviour not related to environment, as well as behaviour related to the social and cultural environment, and genetics’.30   WHO Constitution, art 28.   Pursuant to art 48 of the IHR 2005, the Emergency Committee provides technical advice and views on whether an event constitutes a ‘public health emergency of international concern’ (PHEIC), on the temporary recommendations that should be applied by the country experiencing such an emergency and by third countries, and on the termination of a PHEIC. 28  A  collection of basic documents is available at http://​apps.who.int/​gb/​bd/​ (last accessed 15 October 2016). 29  Emphasis added. 30  See www.searo.who.int/​topics/​environmental_​health/​en/​ (last accessed 15 October 2016). 26 27



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The commitment of the WHO to environmental health has progressively gained momentum, in line with the ever-​increasing evidence of the interconnections between the environment and human health and a growing concern for the threats posed by environmental hazards to human life (according to WHO’s new estimates, 23 per cent of all global deaths—​an estimated 12.6 million every year—​are linked to environment risks such as air, water, and soil pollution, chemical exposures, climate change, and ultraviolent radiation).31 The WHO’s activities in this field are led by the Department of Public Health, Environmental and Social Determinants of Health and cover a broad range of topical issues, including water quality and safety (mainly referred to drinking water, recreational waters, surface water, wastewater). The role of the department is to promote a healthier environment, intensify primary prevention, and influence decision-​makers and public policies in all sectors by assessing and managing risks (such as from outdoor and indoor air pollution, chemicals, unsafe water, lack of sanitation, ionizing, and non-​ionizing radiation); formulating evidence-​based norms and guidance on major environmental and social hazards to health; creating guidance, tools, and initiatives to facilitate the development and implementation of policies that promote human health in priority sectors. Noteworthy is also the Health and Environment Linkages Initiative, a joint WHO-​ UNEP (United Nations Environment Programme) initiative which aims at providing policy-​makers, especially in developing countries, with a number of resources and tools that can help them in shaping environmentally friendly policies especially with regard to given areas of priority risks. Two relevant directories of resources cover the topics ‘Water, Health and Ecosystem Linkages’ and ‘Health and Environment in Integrated Coastal Zone Management’. Joint collaboration with the UNEP has further evolved and on 10 January 2018 the WHO and UN Environment signed an agreement to foster cooperation and joint actions aimed at combating environmental health risks posed by air pollution, climate change, anti-​microbial resistance, waste and chemicals management, water quality, and food and nutrition issues. This agreement has been welcomed as ‘the most significant formal agreement on joint action across the spectrum of environment and health issues in over 15 years’.32

13.3  The Contribution of the WHO to Global Ocean Governance 13.3.1 General assessment To use a marine metaphor, exploring the overall contribution offered by the WHO to ocean governance is navigating uncharted waters. Being scattered in diverse fields of the WHO’s activity, and also appearing somewhat incidental to other overarching 31   WHO, Annette Prüss-​Ustün and others, Preventing Disease through Healthy Environments: A Global Assessment of the Burden of Disease from Environmental Risks (2016). 32   See ‘UN Environment and WHO agree to major collaboration on environmental health risks’, WHO News Release (10 January 2018)  www.who.int/​mediacentre/​news/​releases/​2018/​environmental-​health-​ collaboration/​en/​ (last accessed 10 February 2018).

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health goals, the WHO’s role in ocean governance risks being underestimated or even going unnoticed. First of all, it has to be stressed that although the WHO is in fact committed to improving environmental health and preventing public health hazards in a number of ocean-​related matters, there is no reference to ‘ocean health’ in its legal texts, nor has any specific concept of ‘ocean governance’ been defined in accordance with its mission. Secondly, WHO action does not appear to be systematic and coordinated, with regard both to its participation in UN-​led initiatives and inter-​agency mechanisms, and to the areas of its intervention. There is indeed a large number of institutions involved in oceans regulation which operate independently, without an overarching structural cohesion, and within this broader fragmented framework of competencies which characterizes ocean governance the WHO’s role seems to have been rather incidental, and mostly detached from the major cooperating and coordinating mechanisms instituted within the UN system. In this respect, a few peculiarities deserve to be brought to attention, starting with the surprising and regrettable absence of an inter-​institutional agreement between the WHO and the competent UN agency, the International Maritime Organization (IMO). The fact that the WHO bears no structural relationship with IMO may pose a risk of lack of coordination, consistency, and coherence and may also bring about regulatory and governance gaps. Moreover, the WHO is not a member of the UN-​Ocean, the inter-​agency mechanism that seeks to enhance the coordination, coherence, and effectiveness of competent organizations of the UN system and the International Seabed Authority, in conformity with the United Nations Convention on the Law of the Sea, the respective competences of each of its participating organizations and the mandates and priorities approved by their respective governing bodies.33 Currently, the WHO is not even one of the UN sponsors of the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP)—​ an advisory body established in 1969 counselling the UN System on the scientific aspects of marine environmental protection—​and its representativeness in the Group is not a constant.34

33   Pursuant to the terms of reference adopted with UNGA res 68/​70 of 9 December 2013, UN-​Oceans was established to: strengthen and promote coordination and coherence of United Nations system activities related to ocean and coastal areas; regularly share ongoing and planned activities of participating organizations within the framework of relevant United Nations and other mandates with a view to identifying possible areas for collaboration and synergy; facilitate, as appropriate, inputs by its participating organizations to the annual reports of the Secretary-​General on oceans and the law of the sea and on sustainable fisheries to be submitted to the Secretariat; facilitate inter-​agency information exchange, including sharing of experiences, best practices, tools, and methodologies, and lessons learned in ocean-​ related matters. 34   At present GESAMP is jointly sponsored by nine UN organizations with responsibilities relating to the marine environment (UN, IMO, FAO, UNESCO-​IOC, WMO, IAEA, UNEP, UNIDO, UNDP) and they use GESAMP as a mechanism for coordination and collaboration among them. GESAMP functions are to conduct and support marine environmental assessments, to undertake in-​depth studies, analyses, and reviews of specific topics, and to identify emerging issues regarding the state of the marine environment.



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On the contrary, head executives from the WHO take part in the meetings of the chief executives board for coordination, which has discussed and taken action on UN-​ Oceans, its implementation plan and the revision of its terms of reference, and on the Ocean Compact, launched by Secretary-​General Ban Ki-​moon at Expo 2012.35 In conclusion, it cannot be stated that the WHO’s action under the public health and safety dimensions of ocean governance can be framed in a systematic way. Nonetheless, it has indeed contributed to setting goals for overall marine ecosystem health and environmental quality standards. As illustrated below, the activity of the WHO can be roughly divided under four major entries:  standards and guidelines on water quality, especially referred to coastal waters; standards and codes on seafood safety; prevention and control of foodborne and waterborne diseases; and ship sanitation.

13.3.2 Specific areas of intervention (a) Quality of ocean and coastal waters Human health can be threatened by participating in recreational activities in or near unhealthy waters. Viruses are believed to be the major cause of swimming-​associated diseases, but bacteria, HABs, and microbial pathogens, such as amoebae and protozoa, also cause health problems in humans. The WHO has been concerned with health aspects of the management of water resources for many years and has published over time a number of normative ‘guidelines’ documents intended to provide a basis for standard setting. Albeit non-​binding, the Guidelines issued by the WHO are particularly relevant inasmuch as they express the general consensus emerging from the views of experts on the public health hazards posed by various media and activities, based on a critical review of the available evidence. They also describe the main characteristics of effective monitoring and assessment activities as well as the principal factors affecting decisions to be made for the adoption of control measures. In particular, the development of WHO activity on ‘recreational’ or ‘bathing’ water can be traced back to two expert consultations in the 1970s and has developed ever since in a number of expert meeting and consultations, until the adoption of the Guidelines for Safe Recreational Water Environments in 2003. These Guidelines consist of a set of two volumes, the first being dedicated to Coastal and Fresh Waters,36 and the second dealing with Swimming Pools, Spas and Similar Recreational Water Environments.37 35  UNSG, The Oceans Compact. Healthy Oceans for Prosperity www.un.org/​Depts/​los/​ocean_​compact/​oceans_​compact.htm (last accessed 10 October 2016). The Oceans Compact is relevant to human health inasmuch as one of the three inter-​related objectives supporting the goal of ‘Healthy Oceans for Prosperity’ is ‘Protecting people and improving the health of the oceans’ through, inter alia, reducing the vulnerability of people to the effects of ocean degradation and natural hazards, including tsunamis, and anthropogenic environmental degradation, including possible sources of livelihood for coastal populations. 36   WHO, ‘Guidelines for Safe Recreational Water Environments. Volume 1: Coastal And Fresh Waters’ (2003). 37  WHO, ‘Guidelines for Safe Recreational Water Environments. Volume 2:  Swimming Pools and Similar Environments’ (2006).

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Volume 1, which is relevant to ocean health, provides a review and assessment of the health hazards encountered during recreational use of coastal and freshwater environments. It includes the derivation of guideline values and explains the basis for the decision to derive or not to derive them. It addresses a wide range of types of hazard, including hazards leading to drowning and injury, water quality, exposure to heat, cold and sunlight, and dangerous aquatic organisms; and provides background information on the different types of recreational water activity (swimming, surfing etc) to enable informed readers to interpret the Guidelines in light of local and regional circumstances. With regard to water quality, separate chapters address faecal pollution, free-​living microorganisms, freshwater algae, marine algae, and chemical aspects. It describes prevention and management options for responding to identified hazards. The WHO has also played a special role in recommending standards for freshwater quality to protect human health, as these affect pollution borne to the sea by rivers. In the domain of freshwater water quality, the most important instruments are the Guidelines for Drinking-​water Quality38 and the Guidelines for Safe Use of Wastewater and Excreta in Agriculture and Aquaculture.39 These water quality guidelines are based on managing risks, and since 2004 the Guidelines for Drinking-​water Quality include the promotion of Water Safety Plans to identify and prevent risks before water is contaminated. In 2015 the WHO also introduced the concept of Sanitation Safety Plans to support implementation of the wastewater guidelines.

(b) International standards for safety of seafood Humans are exposed to water contaminated with chemicals and pathogens through skin and respiratory contact, and also by eating contaminated seafood or other marine products. Contaminated seafood is thus one of the most frequent causes of human disease contracted from ocean and fresh waters, whether due to pathogenic or chemical contamination. Also pollutants, such as mercury and dioxins, which exist as environmental contaminants and are concentrated in fish through bioaccumulation, continue to be a public health concern especially in terms of reproductive and developmental problems. In addition, harmful algal blooms and pathogen outbreaks are becoming more common in local waters, increasing the risk of seafood contamination. Food safety is a public health priority and the WHO is committed to a range of multi-​sectoral and multidisciplinary actions to promote the safety of food at local, national, and international levels. The WHO has been involved in food safety for over five decades, collaborating with other international and inter-​governmental organizations and involving all relevant stakeholders and partners throughout the entire food-​chain. In its Strategic Plan for Food Safety, the organization provides a coherent framework for taking action on priority issues in the area of food safety and foodborne

  WHO, ‘Guidelines for Drinking-​water Quality’ (4th edn 2011).   WHO, ‘Guidelines for the Safe Use of Wastewater and Excreta in Agriculture and Aquaculture. Measures for Public Health Protection’ (1989); ‘Guidelines for the Safe Use of Wastewater, Excreta and Greywater’, Volume III: ‘Wastewater and Excreta Use in Aquaculture’ (2006). 38 39



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zoonoses for the period 2013–​2022. The plan sets out three global strategic directions and objectives together with more detailed activities needed to reduce the burden of foodborne illness. Its three strategic directions are inter-​linked—​actions defined under one strategic direction contribute to the achievement of the objectives under another strategic direction. The scope of the plan covers food safety in all ramifications, encompassing the farm-​to-​table approach and including foodborne diseases of zoonotic origin. Therefore, all references to ‘food safety’ or ‘foodborne diseases’ comprise aspects or diseases of non-​communicable and communicable origin, including foodborne zoonoses.40 In the area of food safety, many WHO activities are carried out in close collaboration with the Food and Agriculture Organization (FAO) and with the World Organization for Animal Health (OIE). Together with the FAO, the WHO is the global health authority for the provision of independent, international food safety risk assessments, and the core international standard-​setting function is carried out through the Codex Alimentarius Commission, the principal organ of the Joint FAO/​WHO Food Standards Programme, which is an inter-​governmental body entrusted with protecting consumers’ health, ensuring fair-​trade practices in the food trade and promoting coordination of all food standards work undertaken by IGOs and NGOs.41 The elaboration by the Codex Alimentarius Commission of health-​based international standards, based on the scientific advice provided by independent international expert groups, and their adoption by member states, improve the safety of food in domestic markets and at the global level. The Codex Alimentarius is a collection of food safety standards, codes of practice, guidelines, and other recommendations developed under the guidance of the Codex Alimentarius Commission. The development of Codex Alimentarius standards begins with the submission of a proposal for a standard to be developed by a national government or a committee within the commission. The commission or the executive committee decides whether such a standard should be developed as proposed. Upon a favourable decision, a subsidiary body to be responsible for coordinating the standard development process is identified. If necessary, a new subsidiary body (for example a specialized task force) may also be created. Draft standards are circulated to all member governments for comment, which are then considered by the body coordinating the development of the proposed standard. Standards are added to the Codex Alimentarius only when adopted by the Codex Alimentarius Commission. The standard development process generally takes a number of years. Standards are also reviewed regularly following the same procedure used for standard development. At present there are about 200 Codex Standards, of which several are applicable to fisheries commodities, and over 100 other documents including Codes of Practice and guidelines. A  search of the Codex database reveals that there are twenty-​one documents in the ‘Fish and Fisheries Products’ category. Inter alia, there are eighteen 40  WHO, ‘Advancing Food Safety Initiatives:  Strategic Plan for Food Safety Including Foodborne Zoonoses 2013–​2022’ (2013). 41   Established in 1963 by res WHA16.42.

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standards, two guidelines, and the Code of Practice for Fish and Fisheries Products, which also covers the aquaculture sector.42 The Code of Practice for Fish and Fishery Products43 was developed by the Codex Committee on Fish and Fishery Products by merging the individual codes and adding new sections. It was further modified to incorporate the Hazard Analysis Critical Control Point (HACCP) approach. This code applies to the growing, harvesting, handling, production, processing, storage, transportation, and retail of fish, shellfish, and aquatic invertebrates and products thereof from marine and freshwater sources that are intended for human consumption. Its aim is to provide user-​friendly background information and guidance for the development of fish and shellfish process management systems that would incorporate good manufacturing practice (GMP) as well as the application of HACCP in countries where such measures have not yet been developed. In addition, it could be used in the training of fishers and employees in the fish and shellfish processing industries.

(c) Waterborne and foodborne diseases Following what has been described so far, and given the significance of public health hazards caused by the outbreak and spread of vector-​borne infectious diseases, it has to be noted that another major field of WHO competence in ocean-​related matters concerns the prevention and control of both waterborne and foodborne diseases. In this area of intervention, the WHO avails itself of the most powerful regulatory instrument it has adopted along its almost seventy years of life: the International Health Regulations, which are binding on virtually all states of the international community.44 According to the WHO, foodborne diseases are a global public health challenge.45 Foodborne diseases, be they caused by bacterial46 or chemical contamination,47 have the potential to impact adversely on the health of wide segments of the world population. Traditionally, the term ‘foodborne disease’ was used for illnesses caused by 42   See also WHO, Joint FAO/​NACA/​W HO Study Group on food safety issues associated with products from aquaculture. WHO Technical Report Series No 883, 1999. 43   WHO–​FAO (Codex Alimentarius Commission), ‘Code of Practice for Fish and Fishery Products’ CAC/​RCP 52-​2003. 44   At present the IHR 2005 are binding on all 194 WHO member states of which only two (India and the United States of America) submitted reservations under art 62 of the Regulations. See Stefania Negri, ‘Food Safety and Global Health: An International Law Perspective’ (2009) 3 Global Health Governance 1 www.ghgj.org/​Negri_​food%20safety%20and%20global%20health.pdf (last accessed 10 October 2016); Stefania Negri, ‘Waterborne Disease Surveillance: The Case for a Closer Interaction between the UNECE Protocol on Water and Health and the International Health Regulations 2005’ (2010) 12(3) International Community Law Review 287. 45  WHO, Foodborne disease outbreaks: Guidelines for investigation and control (2008), at v. 46  According to WHO, the most virulent pathogens causing foodborne diseases are BSE (bovine spongiform encephalopathy), Campylobacter, Escherichia coli, Salmonella, Shigella, and parasites such as cryptosporidium and trematodes. See www.who.int/​foodsafety/​areas_​work/​microbiological-​risks/​en/​ (last accessed 10 October 2016). 47   According to the WHO, ‘[t]‌he contamination of food by chemical hazards is a worldwide public health concern and is a leading cause of trade problems internationally. Contamination may occur through environmental pollution of the air, water and soil, such as the case with toxic metals, PCBs, and dioxins, or through the intentional use of various chemicals, such as pesticides, animal drugs and other agrochemicals’: see www.who.int/​foodsafety/​chem/​en/​index.html (last accessed 10 October 2016).



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microorganisms, but nowadays the term is used in a wide, all-​encompassing sense, so as to address the full scope of causative agents—​of a bacterial, viral, prionic, parasitic, or chemical nature—​and acute, sub-​acute as well as chronic diseases. It includes foodborne zoonoses and other risks associated with food along the entire food chain, as well as new and emerging health issues associated with food. Similarly, infectious water-​related diseases are a major cause of morbidity and mortality worldwide. Both ‘classical’ (eg, typhoid, malaria, and cholera) and newly discovered water-​related pathogens, as well as new strains of established pathogens, contribute to determining the immense burden of disease which is caused by contaminated water. Also re-​emerging agents of disease or their expansion to new geographical areas play a significant role in causing outbreaks of waterborne infections worldwide. As a matter of fact, water-​related vector-​borne pathogens have been emerging and re-​emerging over the past twenty years. To a large extent this has been caused by the emergence and spread of drug-​resistant parasites (for example, the Plasmodium species causing malaria) and of insecticide-​resistant vectors.48 The WHO has taken the lead in the assessment and communication of risks related to these diseases, contributing to identify actual and perceived issues, to bring together information and knowledge in critical areas, and to disseminate information to policy-​makers and practitioners in a timely fashion. As stated above, one of the most powerful legal instruments enabling the WHO and its member states to prevent and respond to acute public health risks and guarantee global health security is the revised version of the IHR 2005.49 In fact, one of the most important innovations introduced by the revised Regulations is their capacity to encompass a much broader spectrum of infectious diseases, which require continuous epidemiologic surveillance and compulsory notification to WHO in case of unusual and unforeseen events of international relevance.50 In case of outbreak, States Parties are under the obligation to promptly notify the WHO of the events detected at national level which meet at least two of the conditions laid down in Annex 2: unusualness of the event, emergence of a new disease with significant zoonotic potential, high rate of mortality or morbidity, potential trans-​boundary diffusion, and potential interference with international travel or trade.51 A case in point is cholera, a waterborne disease, which is one of the communicable diseases for which mandatory notification is required when the conditions above recur. However, it is evident that within the expanded scope of the IHR 2005 may fall any foodborne and waterborne disease with international implications that may require action under the legal provisions of the Regulations. Widening their field of action also to ‘emerging’ diseases, the IHR 2005 are meant to guarantee an effective response to the new health challenges of a globalized world. The Regulations in fact constitute the only global health instrument governing the  WHO, Emerging Issues in Water and Infectious Disease (2003).   WHA res 58.3, Revision of the International Health Regulations (23 May 2005). 50   See Stefania Negri, ‘Communicable Disease Control’ in Gian Luca Burci and Brigit Toebes (eds), Research Handbook on Global Health Law (Edward Elgar Publishing 2018). 51   See IHR 2005, Annex 2: ‘Decision instrument for the assessment and notification of events that may constitute a public health emergency of international concern’. 48 49

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reporting of disease outbreaks and the prevention of their international spread. It is indeed in this perspective that they have become an essential tool for global health protection and a fundamental pillar of international health law. On the operational side, the implementation of the IHR 2005 mainly relies on the relevant initiatives launched by the WHO in order to support surveillance, early warning, and reaction systems worldwide. The Global and Alert Response (GAR), for instance, is an integrated global alert and response system for epidemics and other public health emergencies, which is based on coordinated response through cooperation between national public health systems and the international surveillance system.52 Another example is provided by the Global Outbreak Alert and Response Network (GOARN), a global network launched in 2000 with the aim of combating the international spread of outbreaks, ensuring that appropriate technical assistance reaches affected states rapidly, and contributing to long-​term epidemic preparedness and capacity building. GOARN is meant to promote technical collaboration of existing institutions and networks that streamline human and technical resources for the rapid identification, confirmation, and response to outbreaks of international importance. Some food safety events constituting public health emergencies of international concern require coordination and collaboration among established networks in the area of food safety and foodborne zoonoses, most notably the International Food Safety Authorities Network (INFOSAN) and the Global Early Warning System for Major Animal Diseases, including Zoonoses (GLEWS).

(d) Ship sanitation Over one hundred outbreaks of infectious diseases were reported that were associated with ships between 1970 and 2000. Reported outbreaks included legionellosis, typhoid fever, salmonellosis, viral gastroenteritis, enterotoxigenic E coli infection, shigellosis, cryptosporidiosis, and trichinosis. Naval, cargo, and cruise vessels were all affected, often with serious public health, operational, and financial consequences.53 As is well known, ships can have significance to public health beyond just their role in ship-​acquired infection, notably acting as a means of national and international disease transfer. In this respect, the WHO adopted a Guide to Ship Sanitation, which has become the official global reference on health requirements for ship construction and operation. Its purpose is to standardize the sanitary measures taken in ships, to safeguard the health of travellers and workers and to prevent the spread of infection from one country to another. The Guide was first published in 1967 and amended in 1987, and the 2007 revised edition is put in line with the IHR 2005. It encompasses a large number of health issues which are strictly related to water and food safety, recreational water environments, ballast water, waste management and disposal, and disease vectors.54 52  With regard to waterborne diseases, GAR covers Hepatitis A  events but Alert and Response Operations also address food and water safety, as well as chemical events. 53   WHO, ‘Sustainable Development and Healthy Environments: Sanitation on Ships: Compendium of outbreaks of foodborne and waterborne disease and Legionnaires’ disease associated with ships, 1970–​ 2000’ (WHO/​SDE/​WSH/​01.4, 2001). 54   WHO, ‘International Health Regulations Guide to Ship Sanitation’ (3rd edn, October 2007).



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The primary aim of the revised Guide to Ship Sanitation is to present the public health significance of ships in terms of disease and to highlight the importance of applying appropriate control measures. The Guide is intended to be used as a basis for the development of national approaches to controlling the hazards that may be encountered on ships, as well as providing a framework for policy-​making and local decision-​making. The guide may also be used as reference material for regulators, ship operators, and ship builders, as well as a checklist for understanding and assessing the potential health impacts of projects involving the design of ships.

13.4  Commitment to Ocean-​related Sustainable Development Goals Health was at the heart of the millennium development goals (MDGs) and remains a key element of the 2030 Agenda for Sustainable Development.55 Through its resolutions, global action plans and other critical strategic documents, the World Health Assembly has already laid out what countries and the international community should prioritize to make significant progress towards the new sustainable development goals (SDGs). During the Assembly’s 2016 session, delegates agreed a comprehensive set of steps that lay the groundwork for pursuing the health-​related goals and targets and also agreed to work with actors outside the health sector to address the social, economic, and environmental causes of health problems. The Assembly also requested the Director-​General to engage within the UN-​wide system and to take a proactive role in supporting integrated implementation of the 2030 Agenda at the national, regional, and global levels.56 In accordance with the integrated approach that is underpinning the SDGs, health, and environmental health alike, is linked to many of the non-​health goals, reflecting the inter-​linkages and interdependencies between health and many economic, social, and environmental determinants. In this context, some health-​related goals and targets specifically refer to ocean and water-​related matters. Starting with SDG No 3, the specific health goal, two targets refer to water-​related health issues: target 3.3 sets the ending of the major epidemics, including waterborne diseases, as one of the goals to be achieved by 2030 to ensure healthy lives for all; and target 3.9 foresees the substantial reduction in the number of deaths and illnesses from water pollution and contamination. With specific regard to ocean and water governance, SDG Nos 6, 12, and 14 are of particular significance.

 UNGA res 70/​1, Transforming Our World:  the 2030 Agenda for Sustainable Development (25 September 2015). See Stefania Negri, ‘Sustainable Development and Global Health: Positioning Health in the Post-​2015 Development Agenda’, in Malgosia Fitzmaurice, Sandrine Maljean-​Dubois, and Stefania Negri (eds), Environmental Protection and Sustainable Development from Rio to Rio+20 (Brill 2014) 264–​85. 56   WHA res 69.11, Health in the 2030 Agenda for Sustainable Development (28 May 2016). The resolution also requested the Director-​General to report on a regular basis on progress in the implementation of the 2030 Agenda. The first report was submitted to the WHA in 2017 and examined by the Assembly at its seventieth session (Document A70/​35). 55

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Under SDG No 6, which aims to ensure availability and sustainable management of water, target 6.3 refers to the goal of improving by 2030 water quality by reducing pollution, eliminating dumping, and minimizing release of hazardous chemicals and materials, halving the proportion of untreated wastewater; target 6.a refers to the need to improve international cooperation to help developing countries in addressing water-​ related problems, including in the first place wastewater treatment, which is all the more problematic in low-​income countries. Under SDG No 12, concerning sustainable consumption and production patterns, special attention is devoted in target 12.4 to the achievement by 2020 of an environmentally sound management of chemicals and all wastes throughout their life cycle, in order to significantly reduce their release to water and hence minimize their adverse impacts on human health. The first three targets of SDG No 14, the goal which is specifically focused on the conservation and sustainable use of the oceans, seas, and marine resources for sustainable development, set general and overall goals which do have a strong relation to health. Target 14.1 sets as its goal the prevention and significant reduction, by 2025, of marine pollution of all kinds, in particular from land-​based activities, including marine debris and nutrient pollution. Target 14.2 aims at achieving, by 2020, sustainable management and protection of marine and coastal ecosystems to avoid significant adverse impacts and achieve healthy oceans. Target 14.3 refers to the need to minimize and address the impacts of ocean acidification. Within the broader framework of the new global development agenda, WHO-​led environmental health interventions related to the above goals and targets can indeed make a valuable and sustainable contribution towards reducing the global disease burden and improving the well-​being of people everywhere. Of course, an optimal fulfilment of this task will also depend on WHO’s close collaboration with other competent UN agencies.

13.5  The Potential for a Strengthened and More Visible Role of the WHO in Ocean Governance As the international authority on public health and water quality, the WHO leads global efforts to prevent pollution of ocean and coastal waters, transmission of waterborne diseases, and outbreaks of seafood-​associated infections. This notwithstanding, there still seems to be potential to improve and strengthen the WHO’s role in global ocean governance and also to make it better known to the general public. Surveying the WHO’s activities in oceans-​related matters it is crystal clear that much has been done so far to contribute to healthy oceans, but also that much more could be achieved if the WHO moved towards an even stronger cooperation and coordination with other UN agencies and a more resolute and bold recourse to its normative powers. First of all, concluding an inter-​institutional agreement with IMO, adhering to such inter-​agency collaboration mechanisms as UN-​Ocean, sponsoring GESAMP on a regular basis, could be possible steps forward to have its voice heard and offer its expert contribution in the competent international fora.



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In the second place, inviting new observers or encouraging ocean-​related NGOs to interact with it could also bring some additional benefits in terms of global governance (in fact, of the huge number of NGOs working in the field of oceans governance, none is in official relations with the WHO). Finally, a few trivial but useful improvements could render the WHO’s role in this field more visible and more easily accessible to the general public. This could be simply achieved through a dedicated section in the WHO website containing all relevant information (initiatives, projects, guidelines, and publications) to be linked also in the related pages focusing on ‘water’ and ‘environmental health’. Regrettably, the WHO website offers no clear and direct link to the WHO’s work in this field and all relevant information is retrievable only after a well-​targeted and patient search through other areas of intervention which are more or less strictly related to ocean health. Overcoming the major institutional problems and the more banal shortcomings pointed out above would certainly enable the WHO to express all its potential as a prominent actor in ocean governance.

14 Global Ocean Governance The Work of UNCTAD Regina Asariotis, Graham Mott, Anila Premti, and David Vivas Eugui*

14.1  Introduction and Background Since its establishment more than fifty-​three years ago, the United Nations Conference on Trade and Development (UNCTAD) has been the focal point within the United Nations system for the integrated treatment of trade and development, as well as interrelated issues of finance, technology, investment, and sustainable development. Through the three ‘pillars’ of its work—​research and analysis, consensus-​building as part of the inter​ governmental machinery, and technical cooperation and capacity building—​ UNCTAD aims to help developing countries access the benefits of a globalized economy more fairly and effectively, and to deal with the potential drawbacks of greater economic integration. UNCTAD works to build synergies and promote complementarities with the work of other international organizations and cooperates with its parent body, the UN General Assembly  (UNGA),1 in enhancing the development work of the United Nations system, including through contributions and follow-​up to outcomes of relevant conferences. While UNCTAD’s role has undergone some change over time, 2 developing countries, especially the most vulnerable among them, that is, the least developed countries (LDCs), small island developing states (SIDS), and landlocked developing countries (LLDCs), continue to be at the heart of UNCTAD’s mandate and of its work. In the field of transport, UNCTAD’s focus is particularly on international maritime transport, which carries over 80 per cent of the volume of world trade and provides access to global markets for all countries, including those that are landlocked.3

*   The views expressed in this contribution are those of the authors and do not necessarily represent the views of the United Nations. 1   UNCTAD is not a specialized agency or programme; its secretariat is part of the United Nations Secretariat. See ‘Establishment of the United Nations Conference on Trade and Development as an organ of the General Assembly’ UNGA Res 1995 (XIX) (30 December 1964)  paras 26–​28. See http://​w ww. un.org/​documents/​ga/​res/​19/​ares19.htm. 2   For a historical overview of UNCTAD’s activities in the field of shipping see ‘Beyond Conventional Wisdom in Development Policy:  An Intellectual History of UNCTAD 1964–​2004’ (UNCTAD/​EDM/​ 2004/​4) 73–​80. See also ‘UNCTAD: A Brief Historical Overview’ (UNCTAD/​GDS/​2006/​1). 3   Data on seaborne trade and relevant developments are presented annually in the Review of Maritime Transport. See http://​unctad.org/​rmt



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The principal functions of UNCTAD were set out in the UN General Assembly Resolution 1995 (XIX) of 30 December 1964, which established UNCTAD as a subsidiary organ of the UNGA.4 They included in particular: (i) the promotion of international trade, especially with a view to accelerating economic development and including particularly trade between countries at different stages of development and between developing countries; (ii) the formulation, implementation, and harmonization of principles and policies on trade and economic development; and (iii) the initiation of action, where appropriate, in cooperation with the competent organs of the United Nations for the negotiation and adoption of multilateral legal instruments in the field of trade.5 With the establishment of the Committee on Shipping on 29 April 1965, shipping questions were institutionalized in an international forum and, in 1969, member states established a Working Group on International Shipping Legislation (WGISL) within UNCTAD, through which a number of international conventions, model rules, and standards were developed, establishing legal norms or practices that have helped shape the functioning of international shipping and trade. Thus, in due course, the United Nations Convention on a Code of Conduct for Liner Conferences 1974, the United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules) 1978, the United Nations Convention on International Multimodal Transport of Goods 1980, and the United Nations Convention on Conditions for the Registration of Ships 1986 were prepared, elaborated, and/​or adopted under the auspices of UNCTAD.6 In addition, a number of studies and reports were prepared by the  UNCTAD Secretariat to support the negotiating process of these instruments. Subsequently, UNCTAD was also mandated to continue and conclude multilateral negotiations, jointly with  the International Maritime Organization (IMO), regarding two related international conventions, namely the International Convention on Maritime Liens and Mortgages 1993 and the International Convention on Arrest of Ships 1999.7 Over time, UNCTAD’s substantive mandate on issues of maritime and multimodal transport has been broadened to cover the wider context of transport and trade logistics.8 However, with the vast majority of global merchandise trade, including developing countries’ external trade, carried by sea, international maritime freight transport still remains the key area of focus for UNCTAD’s work on transportation. Thus, UNCTAD’s Review of Maritime Transport,9 one of UNCTAD’s flagship reports and

4   ‘Establishment of the United Nations Conference on Trade and Development as an organ of the General Assembly’ UNGA Res 1995 (XIX) (30 December 1964) http://​w ww.un.org/​documents/​ga/​res/​ 19/​a res19.htm. 5   ibid para 3. 6  The text of relevant conventions is available online at unctad.org/​ t tl/​ legal. As for other UN Conventions, including UNCLOS, the United Nations Secretary-​General is their depositary. Information on the status of ratification of the Conventions is available on the UNCTAD website and through the UN Treaty Series Database (https://​treaties.un.org/​). See also Table 1. 7   For further historical information see ‘Beyond Conventional Wisdom in Development Policy: An Intellectual History of UNCTAD 1964–​2004’ (n 2) 73–​80. 8  The Committee on Shipping was replaced in 1992 by the Standing Committee on Developing Services Sector, with shipping, ports, and multimodal transport included in the form of a sub-​committee. Following further changes over time, transport and trade logistics issues are now considered by the Commission on Trade and Development. 9  See http://​unctad.org/​rmt.

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widely used for reference by policy-​makers, industry, and academia, has been published annually since 1968. It provides analysis of structural and cyclical changes affecting seaborne trade, ports, and shipping; an extensive collection of statistical information as well as a review of important legal and regulatory issues and developments. Today, as part of its work on trade logistics,10 UNCTAD continues to carry out substantive research and analysis on a wide range of legal and policy issues affecting transport and trade. Where appropriate, formal and informal meetings convened by UNCTAD also provide an important forum for discussion of relevant issues by member states, public and private sector stakeholders, and other experts. Advice and guidance on legal and policy issues is provided upon request, in the context of multilateral negotiations, or as part of UNCTAD’s technical assistance activities. As part of its mandate, UNCTAD has been working towards enhancing the regulatory governance of the oceans, particularly with a view to considerations arising for the trade and transport of developing countries. In addition to its active contribution to the development of a legal framework regarding international shipping/​maritime law, and particularly commercial maritime transport law,11 more recently UNCTAD has been dealing with a set of inter-​related issues that involve a connection to the oceans, coasts, and their sustainable use. These include issues related to ship-​source pollution, ship, and port security and safety, fisheries, and the implications of climate change for maritime transport, including in particular the potential impacts of climate variability and change on seaports and associated adaptation requirements. A brief overview of UNCTAD’s relevant work in these areas is provided below. Section 14.2 focuses on international maritime transport law and policy;12 and section 14.3 on the governance of trade in fish.

14.2  UNCTAD’s Role in Ocean Governance: International Maritime Transport Law and Policy 14.2.1 International conventions, model rules, and standards adopted under the auspices of UNCTAD Over the years, UNCTAD has been extensively involved in rule-​ making and standard-setting in the field of maritime law, with emphasis on the economic and 10   For an overview of UNCTAD’s research, technical cooperation, and consensus-​building activities in the field of trade logistics see http://​unctad.org/​t tl. 11   Historically, it is the commercial activity of shipping that gave rise to a need for ocean governance. The governance of shipping is therefore at its core. International commercial maritime law, which deals with issues subject to commercial contracts, plays an important part in this context. While its primary purpose is to facilitate commercial transactions, international commercial law, determining rights, obligations and liabilities of contracting parties, affects commercial decision-​making, with implications for ship safety, marine pollution, safety of life at sea, and working conditions of seafarers. For instance, in international carriage of goods by sea, the seaworthiness of a vessel is core to the obligations of the carrier. The level and extent of the carrier’s liability for unseaworthiness—​a matter of commercial maritime law, and mandatory under existing international liability regimes—​a ffects commercial decision-​making, which in turn has implications for marine accident and pollution prevention, as well as for safety of life and property at sea. 12   All documents and reports referred to in this section, as well as conventions and rules are available on the UNCTAD website at http://​unctad.org/​t tl/​legal.



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commercial aspects of shipping. A number of international conventions, mainly in the field of commercial maritime law, were negotiated and adopted by consent at international conferences under the auspices of UNCTAD. Worth highlighting in this context is UNCTAD’s particular focus on developing countries, which is unique, as well as UNCTAD’s distinct group system, with negotiations carried out by groupings of countries acting together with a common platform and a main spokesperson: these included the G-​77 of developing countries—​later named ‘G-​77 and China’, providing a powerful common voice to the large number of UN member states that are developing countries; Group B, formed by western industrialized countries; and Group D, formed by socialist countries.13 In addition, several sets of non-​mandatory rules and standards were adopted and have contributed to shaping and harmonizing the international commercial maritime transport law framework. International conventions negotiated under the auspices of UNCTAD include the following, broadly distinguished by areas of subject matter. See also Table 14.1, which provides information about their status of ratification.

(a) Economic aspects of shipping (i) United Nations Convention on a Code of Conduct for Liner Conferences 1974 Liner shipping, where goods are carried on a particular route, usually according to a regular schedule, has for a long time been governed by cooperative arrangements, originally in the form of conferences, and later, with the emergence of containerization, also in the form of consortia, vessel sharing agreements, strategic/​ global alliances, capacity stabilization agreements, and discussion/​ talking agreements.14 The UN Convention on a Code of Conduct for Liner Conferences15 sought to give developing countries the right to carry a proportion of their own trade16 (the so-​called 40/​40/​20 formula—​40 per cent to be carried by shipping lines from the exporter country, 40 per cent by shipping lines from the importer country, and 20 per cent by third-​country shipping lines17), to participate in the liner conference 13  For further information see also the G-​77 website, http://​w ww.g77.org. Although the members of the G-​77 have increased to 134 countries, the original name was retained due to its historic significance. Today, the membership of Group D is referred to as ‘economies in transition’. For some additional historical information see the preface of ‘Beyond Conventional Wisdom in Development Policy:  An Intellectual History of UNCTAD 1964–​2004’ (n 2) xii. See also ‘UNCTAD: A Brief Historical Overview’ (UNCTAD/​GDS/​2006/​1). 14   For more information on the various organizational forms see eg Anila Premti, ‘Liner Shipping: Is There a Way for More Competition?’ UNCTAD Discussion Paper 224 (March 2016)  http://​unctad. org/​en/​PublicationsLibrary/​osgdp2016d1_​en.pdf; see also OECD (2002), ‘Competition Policy in Liner Shipping. Final Report’, 24–​27. See also OECD (2001), ‘Regulatory Issues in International Maritime Transport’, 16–​20. 15  See http://​unctad.org/​en/​PublicationsLibrary/​tdcode13add.1_​en.pdf. 16   See also ‘Beyond Conventional Wisdom in Development Policy: An Intellectual History of UNCTAD 1964–​2004’ (n 2) 76. The importance attached by developing countries to participation in world shipping was highlighted by the fact that the International Development Strategy for the Third UN Development Decade (the 1980s) called for an increase in their participation in international seaborne trade through the appropriate structural changes where necessary, and also for a 20 per cent share of the deadweight tonnage of the world merchant fleet for the developing countries by end of the decade see UN General Assembly Resolution 35/​56 of 5 December 1980. 17   See art 2 of the United Nations Convention on a Code of Conduct for Liner Conferences 1974.

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Table 14.1  Contracting states of selected conventions on maritime transport as at 31 December 2017 Title of convention

Date of entry into force or conditions for entry into force

Contracting states

Total number of signatories

Total number of parties

United Nations Convention on a Code of Conduct for Liner Conferences 1974

Entered into force 6 October 1983

Algeria, Bangladesh, Barbados, Belgium, Benin, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chile, China, Congo, Costa Rica, Côte d’Ivoire, Cuba, Czech Republic, Democratic Republic of the Congo, Egypt, Ethiopia, Finland, France, Gabon, Gambia, Ghana, Guatemala, Guinea, Guyana, Honduras, India, Indonesia, Iraq, Italy, Jamaica, Jordan, Kenya, Kuwait, Lebanon, Liberia, Madagascar, Malaysia, Mali, Mauritania, Mauritius, Mexico, Montenegro, Morocco, Mozambique, Niger, Nigeria, Norway, Pakistan, Peru, Philippines, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Saudi Arabia, Senegal, Serbia, Sierra Leone, Slovakia, Somalia, Spain, Sri Lanka, Sudan, Sweden, Togo, Trinidad and Tobago, Tunisia, United Republic of Tanzania, Uruguay, Venezuela (Bolivarian Republic of), Zambia

21

76

United Nations Convention on the Carriage of Goods by Sea 1978 (Hamburg Rules)

Entered into force 1 November 1992

Albania, Austria, Barbados, Botswana, Burkina Faso, Burundi, Cameroon, Chile, Czech Republic, Dominican Republic, Egypt, Gambia, Georgia, Guinea, Hungary, Jordan, Kazakhstan, Kenya, Lebanon, Lesotho, Liberia, Malawi, Morocco, Nigeria, Paraguay, Romania, Senegal, Sierra Leone, St. Vincent and the Grenadines, Syrian Arab Republic, Tunisia, Uganda, United Republic of Tanzania, Zambia

28

34

United Nations Convention on International Multimodal Transport of Goods 1980

Not yet in force—​30 contracting parties

Burundi, Chile, Georgia, Lebanon, Liberia, Malawi, Mexico, Morocco, Rwanda, Senegal, Zambia

6

11



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Table 14.1  Continued Title of convention

Date of entry into force or conditions for entry into force

Contracting states

Total number of signatories

Total number of parties

United Nations Conventions on Conditions for Registration of Ships 1986

Not yet in force—​40 contracting parties with at least 25 per cent of the world’s tonnage as per annex III to the Convention

Albania, Bulgaria, Côte d’Ivoire, Egypt, Georgia, Ghana, Haiti, Hungary, Iraq, Liberia, Libyan Arab Jamahiriya, Mexico, Morocco, Oman, Syrian Arab Republic

14

15

International Convention on Maritime Liens and Mortgages 1993

Entered into force 5 September 2004

11

18

International Convention on Arrest of Ships 1999

Entered into force 14 September 2011

Albania, Benin, Congo, Ecuador, Estonia, Lithuania, Monaco, Nigeria, Peru, Russian Federation, Spain, St. Kitts and Nevis, St. Vincent and the Grenadines, Serbia, Syrian Arab Republic, Tunisia, Ukraine, Vanuatu Albania, Algeria, Benin, Bulgaria, Congo, Ecuador, Estonia, Latvia, Liberia, Spain, Syrian Arab Republic

6

11

Source: For official status see http://​t reaties.un.org or http://​t reaties.un.org/​Pages/​ParticipationStatus.aspx; see also http://​u nctad.org/​t tl/​legal.

system18 and to reduce some of the adverse practices such as loyalty ties, arbitrary imposition, and increase of freight rates.19 After ten years of elaboration and negotiations, the Code was adopted in 1974 and entered into force nine years later in 1983. It was the first international legal instrument to govern the economic and commercial aspects of liner shipping companies. To assist in the implementation of the Code of Conduct, in 1986, UNCTAD issued detailed substantive non-​mandatory Guidelines towards the Application of the Convention on a Code of Conduct for Liner Conferences;20 among other matters, the Guidelines encouraged states parties to include the Convention definition of ‘liner conference’ in their national legislations,21 as well as to add a provision for the appropriate authority to publish the name of the conferences which fell within its scope.   The United Nations Convention on a Code of Conduct for Liner Conferences 1974 defines liner conferences as: ‘A group of two or more vessel-​operating carriers which provides international liner services for the carriage of cargo on a particular route or routes within specified geographical limits and which has an agreement or arrangement, whatever its nature, within the framework of which they operate under uniform or common freight rates and any other agreed conditions with respect to the provision of liner services’. 19   ‘Beyond Conventional Wisdom in Development Policy: An Intellectual History of UNCTAD 1964–​2004’ (n 2) 76. Inter alia, the Convention for the first time gave legal force to the rights of shippers to participate in consultations with liner conferences on vital issues such as freight rate increases, loyalty arrangements, and imposition of surcharges. It also attempted to regulate freight rate increases, promotional freight rates, surcharges, and currency adjustment. In addition, the Convention established a machinery for the mandatory settlement of disputes based on conciliation and set out model rules of procedure to be followed. 20 21  See http://​unctad.org/​en/​PublicationsLibrary/​unctadstship1_​en.pdf.   See n 18 above. 18

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The Convention was very successful, having been ratified by a large number of states. However, the changing nature and organization of the liner shipping system over time, together with developments related to the regulation of liner shipping conferences,22 resulted in a decline in the application of the Convention. Thus, although the Convention remains in force for seventy-​six contracting parties,23 its practical relevance has become increasingly limited over time. (ii) United Nations Convention on Conditions for Registration of Ships 1986 According to the United Nations Conference on Oceans and the Law of the Sea 1982 (UNCLOS), which in large part codifies established customary international law, the nationality of a ship is determined by its flag, that is, by its country of registration and the law of the flag state applies to the ship or any conduct that takes place on it.24 Each state has the right to determine the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag,25 as well as the obligation to maintain a register for ships flying its flag.26 Flag states play an important role in the implementation and enforcement of international conventions, including those dealing with the technical and safety aspects of shipping and seafarer’s working, and in monitoring compliance with relevant mandatory standards. Reflecting a growing concern about the increasing use of ‘flags of convenience’ and the potentially ineffective exercise of jurisdiction and control by flag states over ships flying their flag,27 the United Nations Convention on Conditions for 22   In this context, important developments at the EU level are particularly worth noting. The European Council adopted Regulation 954/​79 concerning the ratification by Member States of, or their accession to, the United Nations Convention on a Code of Conduct for Liner Conferences (also known as the ‘Brussels package’) (Official Journal of the European Communities, 1979, L 121: 1, 17 May). The arrangements in this regulation, rendered the cargo sharing provisions of art 2 of the Convention inapplicable in conference trades between EU Member States and, on a reciprocal basis, between EU Member States and other OECD countries. Subsequent legislative developments include the explicit removal of exemptions for liner shipping agreements, by European Council Regulation 1419/​2006 (Official Journal of the European Union, 2006, L 269: 1, 28 September). For further information see also Premti, (n 15). 23  Information about the status of UN conventions is available through the UN Treaty Database https://​treaties.un.org/​. 24   See UNCLOS arts 91 and 94. However, application of such law is not exclusive when the ship is in the port or internal waters of another state. More generally, on the issue of jurisdiction on the high seas and the nationality of ships under international law see R Jennings and A Watts (eds), Oppenheim’s International Law, vol 1 (9th edn, OUP 1996) 731 ff. 25   UNCLOS, art 91(1): ‘Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship’. 26   UNCLOS, art 94(2)(a). A ship may not navigate without being registered in, and flying the flag of, some state. It may navigate only under the flag of the state in which it is registered and must carry documents certifying its registration. A ship that is not registered in any state and is not entitled to fly the flag of any state is considered ‘a ship without nationality’; it may be boarded by a warship or other clearly marked law enforcement ship of any state, for the purpose of checking documents and any further examination that may be necessary. See arts 92(2) and 110(1)(d). 27  For further background information see also ‘Beyond Conventional Wisdom in Development Policy: An Intellectual History of UNCTAD 1964–​2004’ (n 2) 77. As noted there: ‘The open registry (flags of convenience) fleet had expanded at an increasingly fast rate, reaching 28 per cent of the world shipping fleet by 1971. There was concern within governments and the industry that one-​t hird of the world deadweight tonnage (consisting mainly of tankers and bulk carriers) was largely in the hand of “faceless



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Registration of Ships 1986 28 was adopted under the auspices of UNCTAD, after intensive negotiations, among developed, ‘open registry’, and developing countries, on 7 February 1986. Its aim was to tighten the conditions under which states would be allowed to register ships, including by establishing the minimum elements of the ‘genuine link’ between the vessel and the state of registration. The 1958 Convention on the High Seas stated that there must be such a genuine link but did not define what was meant by ‘genuine link’.29 The concept of the need for a genuine link was also recognized in the 1982 UN Convention on the Law of the Sea (UNCLOS) which, in Article 91, the provision dealing with nationality of ships states: ‘There must exist a genuine link between the State and the ship’;30 however, no further clarification or definition is provided. The United Nations Convention on Conditions for Registration of Ships 1986 establishes details of registration as well as special rules to enable the state of registration to exercise effective control over ships flying its flag by ensuring that those who are responsible for the management and operation of a ship on its register are readily identifiable and accountable.31 It provides that each state concerned shall establish ‘a competent and adequate national maritime administration’, able to ensure compliance with international rules and standards concerning ‘the safety of ships and persons on board and the prevention of pollution of the marine environment’, provide for periodical surveying of ships, and require ships to carry documents evidencing the right of the ship to fly the state’s flag and other relevant documents.32 In addition, the Convention contains provisions relating to ship ownership, management, and manning, including measures to protect the interests of labour-​supplying countries, and minimize adverse economic effects.33 The Convention was set to enter into force after ratification by no less than forty states representing 25 per cent of world tonnage, but has been ratified by only fifteen states. Although the Convention has not entered into force, it should be noted, however, that its provisions have significantly influenced a number of national laws on ship registration.

(b) Liability for carriage of goods by sea and multimodal transport (i) United Nations Convention on Multimodal Transport of Goods 1980 While the focus of the above-​mentioned two international conventions was on participation in maritime trade and on ship registration, respectively, another international convention developed and adopted under the auspices of UNCTAD includes the men” behind a veil of corporate holdings. Furthermore, there was convincing evidence that the speculative growth of flags of convenience fleets resulted in detrimental effects upon the expansion of fleets of developing countries. Associated with these vessels was a plethora of shipwrecks, scuttling of vessels, maritime fraud and abuse of seafarers’. 28  See http://​unctad.org/​en/​PublicationsLibrary/​tdrsconf23_​en.pdf. 29   See art 5 of the 1958 Geneva Convention on the High Seas, which provides that ‘there must exists a genuine link between the State and the ship; in particular, the State must exercise its jurisdiction and control the administrative, technical and social matters over ships flying its flag’. 30  See n 25. 31   Information and data about structure, ownership and registration of the world fleet is systematically provided as part of UNCTAD’s annual Review of Maritime Transport. 32 33  See art 5.   See arts 8–​10, 14, and 15.

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United Nations Convention on Multimodal Transport of Goods 1980,34 which provides for an internationally uniform liability framework for multimodal transportation; the Convention was developed in response to the changing practices in shipping in the 1970s, particularly the introduction of containerization and the economic and social implications of the emerging multimodal transport, integrating shipping, and inland transport. By way of background it should be noted that the world of transport had changed considerably since the advent of the container in the mid-​1960s and the consequent exponential growth of containerized transport. With containers designed for transport by different modes, one party would often arrange for the international transportation of goods from door to door, by different modes of transport, and assume contractual responsibility throughout, irrespective of whether this was also the party who actually carried out the different stages of the transport.35 While a number of international conventions were in force to provide for an internationally uniform liability framework for carriage of goods by sea, road, rail, and air, respectively, no such international convention was in force to govern liability arising from multimodal transport. The United Nations Convention on Multimodal Transport of Goods was adopted on 24 May 1980 with the aim of unifying, standardizing, and codifying private law rules and practices of the maritime industry in multimodal transport, providing equitable rules regarding the liability of a multimodal transport operator for loss, damage or delay of cargo, and facilitating the integration of developing countries into these new practices for the transport of goods.36 The Convention did not attract the necessary number of thirty ratifications and, therefore, has not entered into force.37 However, its provisions, including the modified network liability system, which is at the heart of the Convention, have significantly influenced a number of laws and regulations governing multimodal transport at the regional, sub-​regional, and national levels.38 (ii) United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules) 1978 Earlier, UNCTAD had also been involved in background work for another international convention, the United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules) 1978.39 The main objective of the Hamburg Rules was to modernize  See http://​unctad.org/​en/​PublicationsLibrary/​tdmtconf17_​en.pdf.   Where international carriage of goods is by different modes of transport, different carriers operating under a series of sub-​contracts may be carrying out parts of the transportation and it may be difficult to establish who should be liable in case of loss, damage or delay and on the basis of which substantive set of rules. From the perspective of a cargo claimant, it is critical to identify the contractually responsible carrier, the national jurisdiction in which to bring a claim and the substantive set of liability rules that apply. 36   For an overview as well as some historical context see M Faghfouri, ‘Multimodal Transport’ in D Attard (ed), The IMLI Manual on International Maritime Law, Volume II: Shipping Law (OUP 2016) 349 at 363. 37   The Convention requires thirty contracting parties, but has only attracted eleven ratifications. 38   For further details see ‘Implementation of Multimodal Transport Rules’ (2001) http://​unctad.org/​ en/​Docs/​posdtetlbd2.en.pdf. See also ‘Implementation of Multimodal Transport Rules:  Comparative Table’ (2001) http://​unctad.org/​en/​Docs/​posdtetlbd2a1.en.pdf. See also Faghfouri, (n 36). 39  See http://​unctad.org/​en/​PublicationsLibrary/​aconf89d13_​en.pdf. 34 35



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the existing international liability framework for carriage of goods by sea, as contained in the Hague Rules 192440 and its 1968 Visby Protocol (Hague-​Visby Rules 1968),41 in particular in the light of technological developments and changes to commercial practices associated with containerization; and to strike a fairer balance between the interests of carriers and shippers/​consignees in the allocation of risks, rights, and obligations with regard to cargo liability. The Hamburg Rules, among others, increased the financial cap on the carrier’s liability and eliminated the controversial so-​called nautical fault defence, which, under both the Hague Rules 1924 and the Hague-​Visby Rules 1968, exempts the carrier from liability in cases of loss arising from negligence in the navigation or management of the ship. The Hamburg Rules, adopted on 31 March 1978 at a UN diplomatic conference, entered into force on 1 November 1992 and currently have thirty-​four contracting parties. Worth noting is that the Hamburg Rules co-​exist internationally with the Hague Rules and the Hague-​Visby Rules, which remain in force for their respective contracting states. All three of the international liability regimes for carriage of goods by sea currently in force establish minimum levels of carrier liability, which apply mandatorily, that is to say the relevant substantive rules on liability of the carrier may not be contractually modified to the detriment of the shipper or consignee. The rationale for this approach, common to all established international liability regimes, is to reduce the potential for abuse in the context of contracts of adhesion, where parties with unequal bargaining power contract with one another. In liner carriage, where few large liner companies dominate the global market42 and goods are typically shipped under bills of lading or other standard form documents—​ issued and signed by the carrier and usually drafted in terms favourable to the carrier, with no scope for negotiation—​the potential for abuse arising from unequal bargaining power of the contracting parties is particularly obvious. By establishing minimum levels of carrier liability, which apply mandatorily and may not be contractually modified, existing liability regimes seek to ensure the protection of cargo interests with little bargaining power, that is, small shippers and third-​party consignees, against unfair contract terms unilaterally introduced by the carrier in his standard terms of contract.43

  International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1924.   International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1924 (Hague Rules), as amended by the Visby Protocol 1968. The Hague-​Visby Rules were further amended by the SDR protocol 1979 which introduced a stable unit of account, namely the IMF’s special drawing right (SDR). 42   Liner shipping is a very concentrated industry, dominated by a small number of global liner-​carriage operators. In 2011, the top twenty container ship operators controlled around 70 per cent of global TEU capacity (UNCTAD Review of Maritime Transport 2012, Table 2.6); in 2016, top fifty liner shipping companies controlled over 92 per cent of global TEU capacity, with the top ten companies accounting for over 71 per cent of global TEU capacity; see UNCTAD Review of Maritime Transport 2017, Table 2.5. See also Dyna Liners Carrier, Port and Terminal Operator Rankings (www.dynamar.com). 43  See also UNCTAD, ‘Carrier Liability and Freedom of Contract under the UNCITRAL Draft Instrument on the Carriage of Goods [Wholly or Partly] [By Sea]’ (2004) Note by the  UNCTAD Secretariat http://​unctad.org/​en/​Docs/​sdtetlb20042_​en.pdf. 40 41

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(c) Enforcement of maritime claims The effective enforcement of maritime claims is of great practical importance, in particular given the international nature of shipping and the complex contractual arrangements under which ships typically operate, with different parties in various jurisdictions being involved in ownership, operation, and carriage of goods, as well as insurance, and with different national laws potentially applicable to the different inter-​related contracts. Ships are often registered in single ship companies to limit the exposure of the shipowner’s assets; they are also notoriously mobile, and easily moved between jurisdictions, across the oceans; thus, securing and enforcing a maritime claim may be potentially problematic. Two important international conventions in the field were developed and adopted under the joint auspices of UNCTAD and the IMO. (i) International Convention on Maritime Liens and Mortgages 1993 The Convention,44 adopted by consensus on 6 May 1993 by the UN/​IMO Conference of Plenipotentiaries, regulates the recognition and enforcement of maritime liens and mortgages at the international level.45 Its main aims are to improve conditions for ship financing and the development of national merchant fleets, and to promote international uniformity in the field of maritime liens and mortgages.46 Member countries of UNCTAD recognized that significant differences between national regimes governing maritime securities led to complexity and uncertainty in the international enforcement of liens and mortgages and frustrated the implementation of national objectives as to the recognition and priority given to maritime claimants. Developing a generally acceptable international legal framework governing the recognition and enforcement of maritime liens and mortgages was considered necessary, particularly for developing countries, as international uniformity in the field of maritime liens and mortgages was expected to facilitate the availability of maritime credit, a matter that was at the time of particular interest for developing countries wishing to develop their own commercial fleets.47 The Convention entered into force on 5 September 2006, and eighteen states have ratified it so far.48 (ii) International Convention on Arrest of Ships 1999 This Convention49 was jointly prepared by UNCTAD and the IMO, and was adopted by consensus at the UN/​IMO diplomatic conference held under the auspices of  See http://​unctad.org/​en/​PublicationsLibrary/​aconf162d7_​en.pdf.  See also ‘Report of the United Nations/​ International Maritime Organization Conference of Plenipotentiaries on a Convention on Maritime Liens and Mortgages’ (1993). The report includes information on the preparation and adoption of a Convention on Maritime Liens and Mortgages; consideration and adoption of final resolutions; and related organizational matters http://​unctad.org/​en/​ PublicationsLibrary/​aconf162d8_​en.pdf. 46   For further information see ibid. See also ‘Beyond Conventional Wisdom in Development Policy: An Intellectual History of UNCTAD 1964–​2004’ (n 2) 78. 47   See ‘Beyond Conventional Wisdom in Development Policy: An Intellectual History of UNCTAD 1964–​2004’, 78. 48   For some further details and comparison with two earlier international conventions in the field see D C Jackson, Enforcement of Maritime Claims (4th edn, LLP 2005) ch 18. 49  See http://​unctad.org/​en/​PublicationsLibrary/​aconf188d6_​en.pdf. For a detailed commentary see Francesco Berlingieri, Berlingieri on Arrest of Ships Volume II, A  Commentary on the 1999 Arrest Convention (6th edn, Informa Law from Routledge 2017). 44 45



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UNCTAD, on 12 March 1999.50 It regulates the circumstances under which ships may be arrested or released from arrest. Since the arrest of a vessel is a means of enforcing maritime liens and mortgages, it was considered necessary to revise the earlier International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-​going Ships 1952, to ensure that all claims giving rise to a maritime lien under the International Convention on Maritime Liens and Mortgages 1993 would have the right of arrest under the 1999 Arrest Convention. Arrest of ships is an important issue for the international shipping and trading community.51 While owners of ships and cargo seek to ensure that legitimate trading is not interrupted by the unjustified arrest of a ship, claimants are interested in obtaining legal protection for their claims. The 1999 Arrest Convention aims at striking a balance between the interests of owners and claimants, bearing in mind the different approaches adopted by various legal systems. It refines and updates the principles of the 1952 Brussels Convention on the Arrest of Sea-​going Ships and covers issues such as types of claims for which a ship may be arrested, types of ships that can be subject to arrest, conditions relating to release from arrest, right of rearrest and multiple arrest, liability for wrongful arrest, and jurisdiction on the merits of a claim. The number of maritime claims categories was increased from seventeen to twenty-​two, establishing a more comprehensive approach and broadening the scope for arrest. The 1999 Arrest Convention entered into force on 14 September 2011 and has been ratified by eleven states.

(d) Model rules and non-​mandatory standards adopted under the auspices of UNCTAD In addition to the international conventions negotiated and adopted under the auspices of UNCTAD, different sets of model rules and non-​mandatory standards were also developed and adopted in the 1980s and early 1990s. These have also contributed to shaping and harmonizing the international commercial maritime and transport law framework. Model rules may be used by governments in legislating, or by parties in private transactions, but will remain subject to conflicting provisions of any mandatorily applicable law. Non-​mandatory standards, similar to model rules, may also be used by countries as a basis for their national law, and/​or may be voluntarily adopted

50   See also ‘Report of the United Nations/​International Maritime Organization Diplomatic Conference on Arrest of Ships’ (1999). The report contains the Final Act of the Diplomatic Conference; the text of the International Convention on Arrest of Ships, 1999; a summary on the preparation and adoption of a Convention on Arrest of Ships; and related organizational matters http://​unctad.org/​en/​ PublicationsLibrary/​aconf188d5_​en.pdf. 51   Note that UNCLOS provisions applicable to merchant ships and government ships operated for commercial purposes include rules dealing with civil jurisdiction in relation to foreign ships, imposing certain limitations on the power to arrest, providing that the coastal state may not arrest a ship for the purpose of any civil proceedings, ‘save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State’. This is ‘without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters’. See UNCLOS, art 28.

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by industry organizations and bodies, or incorporated into commercial contracts.52 Relevant sets of rules and standards include the following: (i) UNCTAD Minimum Standards for Shipping Agents 1988 UNCTAD Minimum Standards for Shipping Agents53 were prepared by the UNCTAD Secretariat in close consultation with the organizations involved in shipping agency matters, in response to a request from UNCTAD Ad hoc Inter-​governmental Group to Consider Means of Combating all Aspects of Maritime Fraud, including Piracy. They are non-​mandatory in nature and intended to serve as ‘guidelines for national authorities/​professional associations in establishing and maintaining a sound shipping agency system’. Other stated objectives include: (a)  T  o uphold a high standard of business ethics and professional conduct among shipping agents; (b) To promote a high level of professional education and experience, essential to provide efficient services; (c) To encourage operation of financially sound and stable shipping agents; (d) To contribute to combating maritime fraud by ensuring improved services by better qualified shipping agents; . . . .54

UNCTAD Minimum Standards for Shipping Agents have been widely used in over fifty countries.55 (ii) UNCTAD Model Clauses on Marine Hull and Cargo Insurance 1989 Following earlier work on aspects of marine insurance,56 including a study on the economic role, basic principles, structure, and operation of marine insurance—​both hull and cargo insurance—​and providing an analysis of some of the specific legal difficulties experienced by assureds and/​or insurers, UNCTAD Working Group on International Shipping Legislation proceeded with work on the preparation of UNCTAD Model Clauses on Marine Hull and Cargo Insurance,57 which were in due course finalized and published in 1989. Relevant work has acted as a catalyst in the reform by the London insurance market of its marine insurance clauses and policy form.58 52  See eg a recent UNESCAP publication ‘Guidelines for Minimum Standards and Codes of Professional Conduct for Freight Forwarders, Non-​Vessel Operating Common Carriers and Multimodal Transport Operators’ (2011), which includes the ‘UNCTAD Minimum Standards for Shipping Agents 1988’, as well as the ‘UNCTAD/​ICC Rules for Multimodal Transport 1992 and the UN Convention on Multimodal Transport of Goods 1980’ http://​w ww.unescap.org/​sites/​default/​fi les/​FF-​standard-​f ulltext. pdf. The publication was prepared to provide governments and industry of member countries with a tool for formulating, reviewing and revising relevant regulations in order to enhance the professionalism and competitiveness of freight forwarders, non-​vessel operating common carriers and multimodal transport operators in the ESCAP region. 53  See http://​unctad.org/​en/​PublicationsLibrary/​unctadstship13_​en.pdf. 54   See art 1, which sets out the stated objectives of the Minimum Standards for Shipping Agents. 55  ‘Beyond Conventional Wisdom in Development Policy:  An Intellectual History of UNCTAD 1964–​2004’ at 80. 56   Legal and documentary aspects of marine insurance have been considered by UNCTAD from the outset, following a recommendation by the first UNCTAD Conference in 1964. For some historical background see the introduction of the report ‘Legal and Documentary Aspects of the Marine Insurance Contract’ (1982) http://​unctad.org/​en/​PublicationsLibrary/​c4isl27rev1_​en.pdf. 57  See http://​unctad.org/​en/​PublicationsLibrary/​c4isl50rev.1_​en.pdf. 58   See ‘Beyond Conventional Wisdom in Development Policy: An Intellectual History of UNCTAD 1964–​2004’ (n 2) 80. See also M A Huybrechts, ‘Marine Insurance Law: a San Andreas Fault between the



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The clauses deal fully with the scope of cover to be offered under standard marine insurance policies. However, they do not address certain questions relating to domestic law and underwriting practice, which vary from country to country. Nevertheless, few additions are needed for the clauses to be turned into a policy document. The clauses were intended to serve as a guide and a core model for insurance markets, particularly those in developing countries, when drawing up their own marine insurance policies. (iii) UNCTAD/​ICC Rules for Multimodal Transport Documents 1992 UNCTAD/​ICC Rules for Multimodal Transport Documents 1992 (UNCTAD/​ICC Rules)59 were the result of a cooperative arrangement between an inter​governmental body and the industry, intended at the time as an interim solution, pending the entry into force of the 1980 Multimodal Transport Convention.60 Thus, in the early 1990s, in the absence of an international convention in force to govern liability arising from multimodal transport and in response to commercial needs, a set of standard contractual terms was prepared under the auspices of UNCTAD in collaboration with the International Chamber of Commerce (ICC) for incorporation into commercial contracts. UNCTAD/​ICC Rules have become highly successful and have been incorporated by the Baltic and International Maritime Council (BIMCO) and International Federation of Freight Forwarders Associations (FIATA) into their widely used standard form documents (Multidoc 95 and FBL 92). However, as these rules are contractual in nature, they are by definition subject to any applicable mandatory law61 and are thus not an effective means of achieving international uniformity. It should be noted that in addition to being widely used in commercial practice, UNCTAD/​ICC Rules have, along with the 1980 Multimodal Transport Convention, also provided the basis for a number of laws adopted at national or regional level.62

14.2.2 UNCTAD Policy Research and Advice As part of its mandated work programme, the UNCTAD Secretariat provides advice and assistance to its global membership in relation to the negotiation of international legal instruments, including under the auspices of the United Nations Commission on International Trade Law (UNCITRAL), as well as in their effective national implementation, and carries out research and analysis on a broad range of issues in international maritime and commercial law. In addition, as already mentioned, more recently UNCTAD has been dealing with a set of inter-​related issues that involve a connection Common Law and the Civil Law?’ in Eric van Hooydonk (ed), English and Continental Maritime Law (Maklu Publishing 2003) 117, at 119. 59  See http://​unctad.org/​en/​PublicationsLibrary/​tradewp4inf.117_​corr.1_​en.pdf. 60   See Faghfouri, ‘Multimodal Transport’ (n 36). 61   This includes mandatory minimum standards of carrier liability that may be applicable under one of the unimodal international Conventions, where the stage of transport during which loss occurs is known. For an overview of the international legal framework see ‘Multimodal Transport: The Feasibility of an International Legal Instrument’ (2003), cited in section 14.2.2(a)(ii) below. 62  See ‘Implementation of Multimodal Transport Rules’  (2001) (UNCTAD/​ SDTE/​ TLB/​ 2) http://​ unctad.org/​en/​Docs/​posdtetlbd2.en.pdf. See also a related Comparative Table, published as UNCTAD/​ SDTE/​TLB/​2/​Add.1 http://​unctad.org/​en/​Docs/​posdtetlbd2a1.en.pdf.

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to the oceans, coasts, and their sustainable use. These include among others, issues related to marine pollution,63 ship and port security and safety, the nexus between oil prices and maritime freight rates,64 and the implications of climate change for maritime transport, including in particular the potential impacts of climate variability and change on seaports and associated adaptation requirements. Worth highlighting in this context is UNCTAD’s strong focus on carrying out research and analysis, which is a key part of the Secretariat’s mandate and distinguishes UNCTAD from many other international organizations. Thus, a number of substantive analytical studies and reports, covering a wide range of regulatory issues in the field of shipping and maritime law, have been prepared by the UNCTAD Secretariat, to assist traders and policy-​makers in their understanding of the often complex legal frameworks and aid in effective national implementation of relevant international legal instruments. Relevant studies and reports are listed chronologically in Table 14.2 and are briefly presented below, by subject matter.65

(a) Carriage of goods and international trade law As already noted above, UNCTAD was involved in the substantive negotiations and adoption of the United Nations Convention on International Multimodal Transport of Goods 1980, as well as the background work related to the development of the Hamburg Rules 1978; UNCTAD also jointly developed UNCTAD/​ICC Rules for Multimodal Transport Documents 1992. In addition, as part of UNCTAD’s broad research-​oriented mandate, a number of detailed analytical studies and reports have been published over the years on legal aspects of carriage of goods and international trade. Relevant research and analytical work has covered a range of different issues, with a particular focus on (i) carriage of goods by sea66 and multimodal transport; (ii) transport documents and their electronic equivalents; and (iii) other legal aspects of international trade, particularly sale of goods on shipment terms (CIF and FOB). Relevant UNCTAD studies and reports67 include the following: 63   UNCLOS in its art 1(4) provides a definition of ‘pollution of the marine environment’. In addition, Part XII of UNCLOS, dedicated to the protection and preservation of the marine environment, outlines the sources of such pollution, including shipping (arts 194(3b) and 211), and establishes the duties of flag states to take such measures as are necessary to ensure safety at sea, to prevent, reduce and control pollution of the marine environment, as well as to cooperate in formulating and elaborating international rules, standards and recommended practices and procedures consistent with UNCLOS, for the protection and preservation of the marine environment (art 197). 64   A technical report, ‘Oil Prices and Maritime Freight Rates: An Empirical Investigation’ (UNCTAD/​ DTL/​TLB/​2009/​2), was published in 2010, providing much-​needed data to advance the understanding of oil prices as a determinant of maritime freight rates. See http://​unctad.org/​en/​docs/​dtltlb20092_​en.pdf. The study also served to assist in the work of an IMO Expert Group on Market-​based Measures charged with assessing the feasibility and impact of different proposed market-​based measures currently under consideration by the IMO’s Marine Environment Protection Committee (see MEPC 61/​INF.2). 65   The studies and reports listed in this section are available on the UNCTAD website http://​unctad. org/​en/​Pages/​DTL/​T TL/​Legal/​LegalDocuments.aspx. 66   For a substantive analytical report on aspects of air law, in particular liability for carriage of goods and passengers see ‘Carriage of Goods by Air: A Guide to the International Legal Framework’ (2006) (UNCTAD/​SDTE/​TLB/​2006/​1) http://​unctad.org/​en/​Docs/​sdtetlb20061_​en.pdf. 67  These studies and reports are available at http://​unctad.org/​en/​Pages/​DTL/​T TL/​Legal/​Legal Documents.aspx.



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Table 14.2  Studies and reports on transport law and policy (chronological order), http://​unctad.org/​en/​Pages/​DTL/​TTL/​Legal/​LegalDocuments.aspx Title of the study or report

Year

Document number

Number of pages

Bills of Lading

1971

TD/​B/​C.4/​ISL/​6/​Rev.1

84

Legal and Documentary Aspects of the Marine Insurance Contract

1982

TD/​B/​C.4/​ISL/​27/​Rev.1

54

Review and Analysis of Possible Measures to Minimize the Occurrence of Maritime Fraud and Piracy

1983

TD/​B/​C.4/​AC.4/​2

88

Charter Parties: A Comparative Analysis

1990

TD/​B/​C .4/​ISL/​55

149

The Economic and Commercial Implications of the Entry into Force of the Hamburg Rules and the Multimodal Transport Convention

1991

TD/​C.4/​315/​Rev.1

111

Report of the United Nations/​International Maritime Organization Conference of Plenipotentiaries on a Convention on Maritime Liens and Mortgages

1993

A/​CONF.162/​8

17

General Average: A Preliminary Review

1991

TD/​B/​C .4/​ISL/​58

62

General Average: The Place of General Average in Marine Insurance Today

1994

UNCTAD/​SDD/​LEG/​1

46

General Average: Reform of the System

1995

UNCTAD/​SDD/​LEG/​3

32

Legal Aspects of International Trade

1999

UNCTAD/​SDTE/​BFB/​2

69

Report of the United Nations/​International Maritime Organization Diplomatic Conference on Arrest of Ships

1999

A/​CONF.188/​5

28

Implementation of Multimodal Transport Rules: Comparative Table

2001

UNCTAD/​SDTE/​TLB/​2/​ Add. 1

18

Implementation of Multimodal Transport Rules

2001

UNCTAD/​SDTE/​TLB/​2

55

Electronic Commerce and International Transport Services

2001

TD/​B/​COM.3/​EM.12/​2

21

Commentary by the UNCTAD Secretariat on Draft Instrument on Transport Law

2002

UNCTAD/​SDTE/​TLB/​4

73

Multimodal Transport: The Feasibility of an International Legal Instrument

2003

UNCTAD/​SDTE/​TLB/​2003/​1

36

The Use of Transport Documents in International Trade

2003

UNCTAD/​SDTE/​TLB/​2003/​3

42

Container Security: Major Initiatives and Related International Developments

2004

UNCTAD/​SDTE/​TLB/​2004/​1

48

Carrier Liability and Freedom of Contract under the UNCITRAL Draft Instrument on the Carriage of Goods [Wholly or Partly] [By Sea], Note by the UNCTAD Secretariat

2004

UNCTAD/​SDTE/​TLB/​2004/​2

16

Carriage of Goods by Air: A Guide to the International Legal Framework

2006

UNCTAD/​SDTE/​TLB/​2006/​1

77

Maritime Security: ISPS Implementation, Costs and Related Financing

2007

UNCTAD/​SDTE/​TLB/​2007/​1

51 (continued)

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Table 14.2  Continued Title of the study or report

Year

Document number

Number of pages

Maritime Transport and Climate Change Challenge (2009). Summary of Proceedings of the Multi-​Year Expert Meeting on Transport and Trade Facilitation

2009

UNCTAD/​DTL/​TLB/​2009/​1

52

Oil Prices and Maritime Freight Rates: An Empirical Investigation

2010

UNCTAD/​DTL/​TLB/​2009/​2

40

Climate Change Impacts on International Transport Networks (2010). Note by the United Nations Economic Commission for Europe and United Nations Conference on Trade and Development secretariats

2010

ECE/​TRANS/​WP.5/​2010/​3

14

Main Outcomes and Summary of Discussions of the Ad Hoc Expert Meeting on ‘Climate Change Impacts and Adaptation: A Challenge for Global Ports’

2011

UNCTAD/​DTL/​TLB/​2011/​3

23

Climate Change Impacts and Adaptation: A Challenge for Global Ports. Information note for the Ad-​hoc Expert Meeting on ‘Climate Change Impacts and Adaptation: A Challenge for Global Ports’

2011

UNCTAD/​DTL/​TLB/​2011/​2

13

Liability and Compensation for Ship-​ Source Oil Pollution: An Overview of the International Legal Framework for Oil Pollution Damage from Tankers -​Studies in Transport Law and Policy

2012

UNCTAD/​DTL/​TLB/​2011/​4

76

Maritime Piracy (Part II): An Overview of the International Legal Framework and of Multilateral Cooperation to Combat Piracy

2014

UNCTAD/​DTL/​TLB/​2013/​3

77

Maritime Piracy (Part I): An Overview of Trends, Costs and Trade-​related Implications

2014

UNCTAD/​DTL/​TLB/​2013/​1

49

Summary of Discussions and Outcome of the Ad Hoc Expert Meeting on ‘Addressing the Transport and Trade Logistics Challenges of Small Island Developing States (SIDS): Samoa Conference and Beyond’

2014

UNCTAD/​DTL/​TLB/​2014/​3

23

Report of the Multi-​Year Expert Meeting: Small Island Developing States: Challenges in Transport and Trade Logistics

2014

TD/​B/​C.I/​MEM.7/​9

16

Background Note of the Multi-​Year Expert Meeting: Small Island Developing States: Challenges in Transport and Trade Logistics

2014

TD/​B/​C.I/​MEM.7/​8

18

Road Safety: Considerations in Support of the 2030 Agenda for Sustainable Development

2017

UNCTAD/​DTL/​TLB/​2017/​4

55

Port industry survey on climate variability and change UNCTAD Review of Maritime Transport (annually), includes Chapters on ‘Legal and regulatory developments’, and ‘Developments in international seaborne trade’

2017

UNCTAD/​SER.RP/​2017/​18

65

Annual

UNCTAD/​R MT



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• Bills of Lading (1971) • Charter Parties—​A Comparative Analysis (1990) • The Economic and Commercial Implications of the entry into force of the Hamburg Rules and the Multimodal Transport Convention (1991) • Legal Aspects of International Trade (1999) • Electronic Commerce and International Transport Services (2001) • Implementation of Multimodal Transport Rules (2001) • Implementation of Multimodal Transport Rules—​Comparative Table (2001) • The Use of Transport Documents in International Trade (2003) • Multimodal Transport: The Feasibility of an International Legal Instrument (2003). While a proper substantive overview is beyond the scope of this short contribution, the most recent of these studies and reports are worth highlighting, as they focus on issues of continuing relevancy. (i) The Use of Transport Documents in International Trade (2003) The report presents the result of an UNCTAD survey on the use of traditional transport documents in international trade, particularly the extent to which negotiable paper-​based bills of lading are necessary for modern-​day international trade and the extent to which they can be substituted by non-​negotiable transport documents, such as seaway bills, and by electronic alternatives.68 Negotiable bills of lading facilitate the sale of goods in transit along a chain of contracts and provide documentary security to parties involved in a commercial transaction. As such, they clearly play a key role in the conduct of international trade. By the same token, however, their use is increasingly associated with certain problems,69 which gives rise to an urgent need for secure ‘electronic replication’ of the unique document of title function and full legal equivalency of any electronic alternatives. The results of the UNCTAD survey confirm that in commercial practice negotiable bills of lading are frequently used as a matter of course, even where sale of goods in transit is not envisaged and documentary security is not required. As regards the successful transition to an electronic equivalent to the negotiable bill of lading, one of the major obstacles identified by respondents was the fact that the legal framework was not sufficiently clear or otherwise inadequate. (ii) Multimodal Transport: the Feasibility of an International Legal Instrument (2003) In the absence of an internationally uniform liability framework in force to govern liability arising from multimodal transport and in the light of the great diversity of  See http://​unctad.org/​en/​Docs/​sdtetlb20033_​en.pdf.   In particular, the problem associated with delayed arrival of paper-​based documents that need to be surrendered to the carrier to obtain delivery of the goods. Negotiable bills of lading are often delayed in a chain of intermediate sellers and banks involved in providing finance under a letter of credit and are not yet available when the vessel arrives at the port of discharge. This gives rise to a range of legal and commercial problems which could be avoided by the use of a viable electronic alternative to the paper-​based negotiable bill of lading. 68 69

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regulation at the international level that had been identified earlier,70 UNCTAD carried out a study71 to consider the feasibility of developing a new international legal instrument in the field. To this end, UNCTAD conducted a survey among a wide range of interested parties, including all governments and all relevant industry associations, focusing on the desirability in principle of international regulation, the acceptability of potential solutions and approaches and the willingness of all interested parties to pursue this matter further. The report relates the views and opinions expressed by the 109 respondents to UNCTAD questionnaire, highlighting differences regarding the best approach to several key issues covered by any future international legal instrument in the field of multimodal transport, as well as noting areas of consensus that had emerged. The report also presents an analytical overview of the highly complex existing legal framework governing liability arising from international multimodal transport. In the absence of an internationally uniform liability regime in force, the international legal framework remains particularly complex, as liability for loss, damage, or delay of the cargo continues to be governed by existing unimodal conventions, increasingly diverse national, regional, and sub-​regional laws, and contractual agreements. (iii) Technical advice and assistance in relation to the Rotterdam Rules An important recent development in the field of transport law was the adoption, in December 2008, of a new United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea.72 The new Convention, known as the Rotterdam Rules, provides mandatory standards of liability for loss, damage, or delay arising from the international carriage of goods by sea and is intended to provide a modern successor to the earlier international conventions in the field, the Hague Rules 1924, the Hague-​Visby Rules 1968, and the Hamburg Rules 1978.73 In contrast to these conventions currently in force, however, the Rotterdam Rules also apply to multimodal transport involving an international sea-​leg and deal with a range of issues not presently subject to mandatory international law.74 This includes delivery of the goods, transfer of rights, and right of control.75 At the same time, they provide for considerable freedom of contract in the context of ‘volume contracts’. The UNCTAD Secretariat participated in the preparatory work that was carried out under the auspices of the UNCITRAL Working Group III (Transport Law)76 and has, 70   A study of the implementation of laws and regulations applicable to multimodal transport entitled ‘Implementation of Multimodal Transport Rules’ (UNCTAD/​SDTE/​TLB/​2 and Add.1) was prepared by the UNCTAD Secretariat in 2001. 71  See http://​unctad.org/​en/​Docs/​sdtetlb20031_​en.pdf. 72   For the official text and status information of the Rotterdam Rules see www.uncitral.org. 73   See nn 39–​41. 74   Worth noting is also that the liability of the shipper is, for the first time mandatory. For the rationale of mandatory carrier liability under the Hague, Hague-​Visby, and Hamburg Rules see above, text to n 43. 75   These issues are covered in chs 9–​11 of the Rotterdam Rules. The Rotterdam Rules also provide for electronic communication and the issue of electronic substitutes for traditional paper documents, largely by recognizing contractual agreements in this respect and by according electronic records similar status to paper-​based documents; see ch 3. 76   The UNCITRAL Commission, at its 34th session, created a working group to consider possible uniform regulation in the field of maritime transport. In view of UNCTAD’s involvement with the subject,



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over the years, prepared a number of documents to provide technical legal analysis for consideration by the Working Group. These include an article-​by-​article commentary by the UNCTAD Secretariat on the Draft Instrument on Transport Law,77 which provides analysis of the draft Convention’s78 provisions and their potential practical implications, highlighting some aspects which presented particular concerns, especially from the perspective of small shippers in developing countries.79 It also includes a note, providing comments on specific aspects of the draft text, notably on Carrier Liability and Freedom of Contract under the UNCITRAL Draft Instrument on the Carriage of Goods [Wholly or Partly] [By Sea] (2004).80 The note deals with some of the central issues for consideration by the Working Group, namely (a) freedom of contract, in particular the question of which contracts may be exempt from the mandatory application of the Instrument and (b) liability of the carrier for cargo loss, damage, and delay. To assist governments, in particular in developing countries, in their assessment of the merits of ratification, an analytical overview of key features of the Rotterdam Rules has been published by UNCTAD as part of the Review of Maritime Transport 2009, with a brief update in the Review of Maritime Transport 2010.81 The analysis suggests that the Convention may be problematic in a number of respects—​including (i)  the particular complexity of its ninety-​six provisions; (ii) its treatment of multimodal transportation;82 and (iii) transportation under ‘volume contracts’; as well as (iv) the substantive compromise between shipper and carrier interests inherent in the Convention.83 The Convention requires twenty ratifications for its entry into force; so far, it has been ratified by only three states.84

the Commission specifically provided that the work should be carried out in close cooperation with interested inter-​governmental organizations, such as UNCTAD. Official Records of the General Assembly; supplement No 17, A/​56/​17, para 345. 77   Document UNCTAD/​SDTE/​TLB/​4 http://​unctad.org/​en/​Docs/​posdtetlbd4.en.pdf. Also available, in all official UN languages, on the UNCITRAL Working Group III website as document A/​CN.9/​WG.III/​ WP.21/​Add.1, at http://​w ww.uncitral.org/​uncitral/​en/​commission/​working_​groups/​3Transport.html. 78   The ‘Draft Instrument on Transport Law’ formed the basis for deliberations within the UNCITRAL Working Group. Available, in all official UN languages, on the UNCITRAL Working Group III website as document A/​CN.9/​WG.III/​WP.21. See http://​w ww.uncitral.org/​uncitral/​en/​commission/​working_​ groups/​3Transport.html. 79   Much of the analysis remains relevant regarding the final text of the convention as adopted in 2008. 80   Note by the  UNCTAD Secretariat (UNCTAD/​SDTE/​TLB/​2004/​2) http://​unctad.org/​en/​docs/​ sdtetlb20042_​en.pdf. 81   ‘Adoption of a new United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea: the Rotterdam Rules’, Review of Maritime Transport 2009, Chapter 6, Legal Issues and Regulatory Developments, 123–​30; ‘Developments relating to the United Nations Convention on Contracts for the International Carriage of Goods by Sea: the Rotterdam Rules’, Review of Maritime Transport 2010, Chapter 6, Legal Issues and Regulatory Developments, 118. See www.unctad.org/​t tl. 82  For further substantive information on this aspect see also a contribution by the  UNCTAD Secretariat to the ‘UNECE Expert Group on the Rotterdam Rules: The scope of application and the practical consequences of the Rotterdam Rules for pan-​European land and intermodal transport operations’. Informal Document WP.24 No 2 (2011) http://​w ww.unece.org/​fi leadmin/​DAM/​trans/​doc/​2011/​w p24/​ ECE-​TRANS-​WP24-​54-​inf02e.pdf. 83   Relevant issues had already been highlighted by UNCTAD during the preparatory works, starting in 2002. See ‘Commentary by the UNCTAD Secretariat on Draft Instrument on Transport Law’ (2002) http://​unctad.org/​en/​Docs/​posdtetlbd4.en.pdf; and ‘Carrier Liability and Freedom of Contract under the UNCITRAL Draft Instrument on the Carriage of Goods [Wholly or Partly] [By Sea]’ (n 43) 84   For status information of the Rotterdam Rules see www.uncitral.org.

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(b) Admiralty law, marine insurance, and general average As already noted above, among the relevant international legal instruments adopted under the auspices of UNCTAD are international conventions dealing with the Enforcement of Maritime Claims (International Convention on Maritime Liens and Mortgages 1993, which entered into force in 2004, and the International Convention on Arrest of Ships 1999, which entered into force in 2011). Research and analytical work on commercial aspects of shipping during the 1980s and 1990s has focused, among others, on aspects of marine insurance and general average.85 Relevant studies and reports86 were prepared with a view to reviewing commercial contract clauses in widespread commercial use and have contributed to the further development of such clauses,87 and to the development and understanding of related non-​mandatory sets of rules, notably the York-​Antwerp Rules on general average. They include the following: • Legal and Documentary Aspects of the Marine Insurance Contract (1982) • General Average—​A Preliminary Review (1991) • General Average—​The Place of General Average in Marine Insurance Today (1994) • General Average—​Reform of the System (1995). More recently, research and analysis focuses particularly on ship-​source pollution, the relevant liability and compensation framework, as well as related issues. Relevant regulatory issues and developments are also regularly covered in UNCTAD’s annual Review of Maritime Transport and as appropriate in the quarterly Transport and Trade Facilitation Newsletter.88 In the light of the importance of marine and coastal pollution control in the context of Sustainable Development Goal (SDG) No 14, adopted in 2015 as part of the international community’s integrated 2030 Sustainable Development Agenda and briefly presented further below, regulatory efforts at reducing ship-​source pollution, both in terms of prevention and response and in terms of liability and compensation, are likely to continue to be of increasing relevance. (i) Liability and compensation for ship-​source pollution As part of its work in the field of transport law and policy, UNCTAD carries out research to assist policy-​ makers in making informed policy choices to address 85   General average deals with the adjustment of any extraordinary sacrifice or expenditure intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure. See only the York-​Antwerp Rules 1994 http://​w ww. comitemaritime.org/​Uploads/​YAR%2094%20english.pdf. A new version of the York-​Antwerp Rules was adopted in 2016 and is also available through the website of the CMI. 86  See http://​unctad.org/​en/​Pages/​DTL/​T TL/​Legal/​LegalDocuments.aspx. 87   See text to n 58. 88   Note that UNCTAD monitors regulatory developments and discussions on the technical and safety aspects of shipping, as well as on the prevention and control of ship-​source marine pollution (including reduction of GHG emissions from international shipping) under the auspices of the IMO, and regularly reports on these as part of its annual Review of Maritime Transport, available on the UNCTAD website at http://​unctad.org/​en/​pages/​publications/​Review-​of-​Maritime-​Transport-​(Series).aspx .



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environmental challenges in the field of transport and in identifying associated capacity-building needs and appropriate regulatory responses. As concerns oil  ​pollution from tankers, a robust international legal framework is in place to provide significant compensation to those affected. Relevant international conventions, collectively known as the CLC-​IOPC Fund regime, have been developed and improved upon, primarily in the aftermath of some particularly large oil spills. However, a number of coastal states, including developing countries that are potentially exposed to ship-​source oil ​pollution incidents, are not yet contracting parties to the latest legal instruments in the field. While large oil pollution incidents have reduced both in number and in size over recent decades, due in considerable part to the development of a robust international regulatory regime, the potential threat of environmental damage and economic loss associated with the carriage of oil remains disconcerting. With half of global crude oil carried by sea, and many coastal or SIDS’ economies heavily dependent on income from fisheries and tourism, exposure to damage arising from ship-​source oil pollution incidents poses a potentially significant economic threat. Against this background, the UNCTAD Secretariat prepared an analytical report to assist policy-​makers in their understanding of the international legal framework and in assessing the merits of ratification. (ii) Liability and Compensation for Ship-​source Oil Pollution: An Overview of the International Legal Framework for Oil Pollution Damage from Tankers (2012) The report89 provides a detailed analytical overview of the existing legal framework and considers the potential benefits of accession to the most modern legal instruments in the field, which may offer contracting states substantial compensation in case of an oil spill in their territorial waters or exclusive economic zone. It also presents some related international conventions, which are designed to provide for compensation in respect of ship-​source oil pollution not covered by the CLC-​IOPC Fund regime. These are the 2001 Bunker Oil Pollution Convention, which applies to bunker oil pollution from all types of sea-​going vessels other than oil tankers, as well as the 1996 Hazardous and Noxious Substances Convention, as amended by its 2010 Protocol, which covers pollution from a wide range of hazardous and noxious substances, including non-​persistent oils, but which is not yet in force. By way of background, the report also highlights the potential exposure to oil pollution incidents coastal countries may face as a result of seaborne trade in oil and provides some brief statistical information about the incidence and causes of oil spills from tankers.90

 See http://​unctad.org/​en/​PublicationsLibrary/​dtltlb20114_​en.pdf.   The topic was also considered in some detail at an UNCTAD Expert Meeting on Transport and Trade Facilitation, held in 2010. All relevant documentation and presentations are available on the meetings website (http://​unctad.org/​en/​pages/​MeetingsArchive.aspx?meetingid=20190) and accessible through http://​unctad.org/​en/​Pages/​DTL/​T TL/​Legal.aspx. 89

90

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(c) Maritime and supply-​chain security As part of its mandated work program, UNCTAD regularly monitors and reports on important developments relating to maritime and supply-​chain security through its annual Review of Maritime Transport91 and, as appropriate, carries out research on relevant topical issues. Relevant analytical studies and reports include the following documents. (i) Container Security: Major Initiatives and Related International Developments (2004) Following the events of 11 September 2001, safety and security considerations moved the forefront of international concerns and a variety of different unilateral and multilateral security measures regulations and legislative initiatives were developed and implemented. With world trade largely dependent on maritime transport, much of the focus was on enhancing maritime transport security and on addressing the particular challenges posed by containerized transport. The report92 provides a first step towards a better understanding of the different sets of rules and measures, by focusing on the main measures relevant to maritime container security, namely those initiated by the US, and by presenting the most important international developments in context, together with some preliminary analysis of potential impacts for the trade and transport of developing countries. (ii) Maritime Security: ISPS Implementation, Costs and Related Financing, (2007) On 1 July 2004 the 2002 amendments to the International Convention for the Safety of Life at Sea 1974 (SOLAS) and the new International Ship and Port Facility Security Code (ISPS Code) entered into force and became mandatory for all SOLAS Member States. The SOLAS amendments and the ISPS Code impose wide-​ranging obligations on governments, shipping companies, and port facilities. The report93 provides an analytical overview of these obligations and relates the results of an UNCTAD survey to gauge the costs and potential economic implications arising out of their implementation. It also provides an overview of the ISPS Code implementation process as experienced by governments and ports in both developed and developing regions and offers an informative pool of data on the ISPS Code compliance costs, indirect effects and financing mechanisms: (iii) Maritime Piracy (Part I): An Overview of Trends, Costs and Trade-​related Implications (2014);94 • Maritime Piracy (Part II): An Overview of the International Legal Framework and of Multilateral Cooperation to Combat Piracy (2014).95

 See http://​unctad.org/​en/​Pages/​DTL/​T TL/​Legal/​Maritime-​Security.aspx.   Available at http://​unctad.org/​en/​Docs/​sdtetlb20041_​en.pdf. 93  Available at http://​unctad.org/​en/​Docs/​sdtetlb20071_​en.pdf. See also Regina Asariotis, ‘Implementation of the ISPS Code:  An Overview of Recent Developments’ (2005) 11 Journal of International Maritime Law 266. 94   Available at http://​unctad.org/​en/​PublicationsLibrary/​dtltlb2013d1_​en.pdf. 95   Available at http://​unctad.org/​en/​PublicationsLibrary/​dtltlb2013d3_​en.pdf. 91

92



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At a basic level, maritime piracy is a maritime transport issue that directly affects ships, ports, terminals, cargo, and seafarers. However, piracy threatens the safety of navigation, and has broader implications for transport and trade across interconnected supply chains, as well as for energy and food security. Above all, piracy is associated with considerable human costs, as seafarers are the first to be affected by piracy attacks. In addition, as piracy attacks have evolved and become more complex, the issue of maritime piracy has developed into a multifaceted transnational security challenge that threatens lives, livelihood, and global welfare. Piracy disrupts transport and trade flows, as well as other economic activities such as fisheries and energy production, thus potentially jeopardizing the development prospects of both coastal and landlocked economies in affected regions. This substantive two-​part report (i) considers the costs and trade-​related implications of maritime piracy and (ii) provides a detailed overview of regulatory and other initiatives pursued by the international community in an effort to combat piracy.96As part of its conclusions, the report highlights the importance of strengthened cooperation at all levels—​not only in respect of maritime security measures, but also in terms of information sharing, effective prosecution of pirates, and of the beneficiaries of the proceeds of piracy—​and of ongoing efforts to strengthen the legal and regulatory framework, particularly at the national level.97

(d) Climate change and maritime transport International maritime transport, like other economic sectors, faces a dual challenge in respect of climate variability and change: the need to reduce its carbon emissions and, at the same time, adapt to the potentially wide-​ranging impacts of climatic factors. Given the vital importance of international maritime transport for global trade, meeting the climate change challenge is imperative. Since 2008, UNCTAD considers climate change as part of its ongoing work in the field of trade logistics and carries out substantive work to help improve the understanding of issues at the interface of maritime transport and the climate change challenge.98 Special emphasis is placed on climate change impacts and adaptation for

96   UNCLOS reaffirms the duty of all states to cooperate in the repression of piracy (art 100); defines piracy under international law, as an illegal act of violence, or detention, committed for private ends, against another ship, aircraft, persons, or property on board, and committed on the high seas or in the exclusive economic zone (arts 101 and 58(2)); recognizes that states have universal jurisdiction to repress piracy (art 105); an exception this to the principle of exclusive flag state jurisdiction over ships on the high seas. States can seize pirate ships in the high seas, arrest the persons, and seize the property on board. Although not addressed in UNCLOS, it is important to distinguish piracy, as defined there, from ‘armed robbery against ships’, as defined in and addressed by other relevant international instruments including the IMO Code of practice for the investigation of crimes of piracy and armed robbery against ships; and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) 1988, as amended. 97   Note also an UNCTAD report on issues related to Maritime Fraud and Piracy published in 1983, entitled ‘Review and Analysis of Possible Measures to Minimize the Occurrence of Maritime Fraud and Piracy’ http://​unctad.org/​en/​PublicationsLibrary/​c4ac4d2_​en.pdf. 98   Note that UNCTAD monitors regulatory developments and discussions on the technical and safety aspects of shipping, as well as on the prevention and control of ship-​source marine pollution (including

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seaports and other coastal transport infrastructure and the need to enhance their climate resilience.99 With 80 per cent of the volume of world trade carried by sea, international shipping and ports provide crucial linkages in global supply-​chains and are essential for the ability of all countries, including those that are landlocked, to access global markets. Ports are likely to be affected directly and indirectly by climatic changes, such as rising sea levels, extreme weather events, and rising temperatures, with broader implications for international trade and for the development prospects of the most vulnerable nations, in particular LDCs and SIDS. Against this background and given the potential for climate-​related damage, disruption and delay to transport across closely interconnected global supply chains, enhancing the climate resilience of seaports and other key transport infrastructure is of strategic economic importance. UNCTAD’s research and analytical work in the field, as well as relevant consensus-​ building activities, have significantly helped to raise awareness and advance the international debate;100 important synergies are created through excellent inter-​agency cooperation and through the establishment of a committed multidisciplinary network of experts. Academic publications include an UNCTAD-​edited book on Maritime Transport and the Climate Change Challenge, co-​published in 2012 by the United Nations and Earthscan,101 with contributions from twenty-​ five experts from academia, international organizations as well as the shipping and port industries, providing detailed insight on a range of the potential implications of climate change for this key sector of global trade; as well as a multidisciplinary academic paper, entitled ‘A Note on Climate Change Adaptation for Seaports: A Challenge for Global Ports, a Challenge for global society’, published in 2013 and co-​authored by experts following an UNCTAD expert meeting.102 In 2017 UNCTAD published the findings of a ‘Port Industry Survey on Climate Change Impacts and Adaptation’,103 designed in collaboration with global

reduction of GHG emissions from international shipping) under the auspices of the IMO, and regularly reports on these as part of its annual Review of Maritime Transport http://​unctad.org/​en/​pages/​publications/​Review-​of-​Maritime-​Transport-​(Series).aspx. 99   For further information and full documentation see the UNCTAD website at http://​unctad.org/​en/​ Pages/​DTL/​T TL/​Legal/​Climate-​Change-​a nd-​Maritime-​Transport.aspx. 100   For some relevant documents and reports see Table 2. UNCTAD’s work has been cited in several chapters of the ‘5th Assessment Report of the IPCC WG II Report on Impacts and Adaptation’ (2014), as well as in the ‘Climate Change Policy Framework for Jamaica’ (2015). The importance of climate change adaptation for seaports and other key transport infrastructure is also recognized in ‘Ashgabat Statement on Commitments and Policy Recommendations of the Global Sustainable Transport Conference’ (paras 7, 16, 20), which was adopted at the UN Global Sustainable Transport Conference, held in Ashgabat on 26–​27 November 2016 https://​sustainabledevelopment.un.org/​content/​documents/​ 11987Ashgabatstatement.pdf. UNCTAD co-​ led and participated in a high-​ level thematic panel discussion on ‘Sustainable Transport Solutions to the Climate Crisis’ at the Conference; see https://​sustainabledevelopment.un.org/​ Global-​Sustainable-​Transport-​Conference-​2016. 101  R Asariotis and H Benamara (eds), Maritime Transport and the Climate Change Challenge (Routledge/​Earthscan 2012). 102   See A  Becker and others, ‘A Note on Climate Change Adaptation for Seaports:  A Challenge for Global Ports, a Challenge for Global Society’ (2013) 120 Climatic Change 683. 103  See http://​unctad.org/​en/​pages/​PublicationWebflyer.aspx?publicationid=1964.



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port industry associations and other experts. The survey aimed to improve the understanding of weather and climate-​related implications for ports and to identify data availability and information needs, as well as determine current levels of resilience and preparedness among ports. Although the majority of respondents had been impacted by weather or climate-​related events, including by extremes, the study revealed important gaps in terms of relevant information available to seaports of all sizes and across regions, with implications for effective climate risk assessment and adaptation planning. Other relevant initiatives by the  UNCTAD Secretariat include a number of inter-​ governmental meetings, which have focused on the implications of climate change for maritime transport, highlighting in particular the need to adapt to the impacts of climate change. They include an Ad-​Hoc Expert Meeting on ‘Climate Change Impacts and Adaptation:  A Challenge for Global Ports’, held in September 2011,104 a Joint UNECE-​UNCTAD Workshop on ‘Climate Change Impacts on International Transport Networks’,105 held in September 2010, and a Multi-​Year Expert Meeting on Transport and Trade Facilitation with a focus on ‘Maritime Transport and the Climate Change Challenge’,106 held in February 2009. Full background documentation relating to these meetings is available on the relevant meetings’ webpages.107 The implications of climate change for coastal transport systems were also considered at two expert meetings with a focus on the transport-​related challenges facing SIDS, namely the third session of the Multi-​year Expert Meeting on Transport, Trade Logistics, and Trade Facilitation, ‘Small Island Developing States:  Transport and Trade Logistics Challenges’, held on 24–​26 November 2014,108 and the Ad Hoc Expert Meeting on ‘Addressing the Transport and Trade Logistics Challenges of the Small Island Developing States (SIDS):  Samoa Conference and Beyond’, held on 11 July 2014.109

104   See ‘Climate Change Impacts and Adaptation:  A Challenge for Global Ports. Information note for the Ad-​hoc Expert Meeting on “Climate Change Impacts and Adaptation: A Challenge for Global Ports”  ’ (UNCTAD/​DTL/​TLB/​2011/​2) http://​unctad.org/​en/​Docs/​dtltlb2011d2_​en.pdf; and ‘Main Outcomes and Summary of Discussions of the Ad Hoc Expert Meeting on “Climate Change Impacts and Adaptation:  A Challenge for Global Ports” ’ (UNCTAD/​DTL/​TLB/​2011/​3) http://​unctad.org/​en/​Docs/​ dtltlb2011d3_​en.pdf. 105   See ‘Climate Change Impacts on International Transport Networks’. Note by the United Nations Economic Commission for Europe and United Nations Conference on Trade and Development secretariats (ECE/​TRANS/​WP.5/​2010/​3) http://​unctad.org/​en/​PublicationsLibrary/​ecetrans_​w p52010d3_​ en.pdf. 106   See ‘Maritime Transport and Climate Change Challenge. Summary of Proceedings of the Multi-​ Year Expert Meeting on Transport and Trade Facilitation’ (UNCTAD/​DTL/​TLB/​2009/​1) http://​unctad. org/​en/​Docs/​dtltlb20091_​en.pdf. 107   These can be accessed through UNCTAD webpage at http://​unctad.org/​en/​Pages/​DTL/​T TL/​Legal/​ Climate-​Change-​a nd-​Maritime-​Transport.aspx. 108  ibid. See also ‘Background Note of the Multi-​Year Expert Meeting:  Small Island Developing States:  Challenges in Transport and Trade Logistics’ (2014) (TD/​B/​C.I/​MEM.7/​8) http://​unctad.org/​ meetings/​en/​SessionalDocuments/​cimem7d8_​en.pdf, and ‘Report of the Multi-​Year Expert Meeting  –​ Small Island Developing States: Challenges in Transport and Trade Logistics’ (2014) (TD/​B/​C.I/​MEM.7/​ 9), available at http://​unctad.org/​meetings/​en/​SessionalDocuments/​cimem7d9_​en.pdf. 109   ibid. See also ‘Summary of Discussions and Outcome of the Ad Hoc Expert Meeting on “Addressing the Transport and Trade Logistics Challenges of Small Island Developing States (SIDS):  Samoa Conference and Beyond” ’ (2014) http://​unctad.org/​en/​PublicationsLibrary/​dtltlb2014d3_​en.pdf.

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Ongoing work with a particular focus on SIDS includes a technical assistance project on ‘Climate change impacts on coastal transport infrastructure in the Caribbean: enhancing the adaptive capacity of SIDS’,110 which is being implemented over the period 2015–​2017. Adopting a case-​study approach focusing on two vulnerable SIDS in the Caribbean region (Jamaica and St Lucia), the project aims to enhance the knowledge and understanding at the national level and to develop a transferable methodology for assessing climate-​related impacts and adaptation options in SIDS.111 As part of its activities, UNCTAD also collaborates with other international organizations, including for instance with the UNECE and its Expert Group on Climate Change Impacts and Adaptation for International Transport Networks, which had been established following the 2010 joint UNECE-​UNCTAD workshop and whose mandate was extended in 2015.112 Other collaborative initiatives with inter-​governmental and non-​ governmental organizations (NGOs) include work under the auspices of UN-​Oceans, an inter-​agency mechanism that seeks to enhance the coordination, coherence, and effectiveness of competent organizations of the United Nations system, and of the Technical Working Group to support the UN Secretary-​General’s High-​level Advisory Board on Sustainable Transport.113 UNCTAD has also contributed to work under the auspices of the United Nations Environment Programme Mediterranean Action Plan (UNEP/​MAP) towards a Regional Framework for Adaptation to Climate Change in coastal and marine areas in the Mediterranean,114 and to industry-​led initiatives, such as the Working Group on climate change adaptation for maritime and inland port and navigation infrastructure, which was established in 2015 by PIANC, the key NGO representing global waterborne transport infrastructure to develop guidelines for climate change adaptation. Starting in 2017, UNCTAD is participating in an international reference group contributing to the development of a ‘Law and Climate Change Toolkit’,115 an online database initiated by the United Nations Climate Change secretariat (UNFCCC), UN Environment, and the Commonwealth Secretariat, in close collaboration with a number of international organizations, development banks, and specialized agencies, and in consultation with national experts and research institutions. The toolkit will provide a global resource to help countries put in place the legal frameworks necessary for effective national implementation of the Paris Agreement and their nationally determined contributions. Related work by UNCTAD on aspects of sustainable freight transport includes a report entitled ‘Closing the Distance:  Partnerships for Sustainable and Resilient 110  See http://​unctad.org/​en/​Pages/​DTL/​T TL/​Legal/​Climate-​Change-​Impacts-​on-​SIDS.aspx. See also SIDSport-ClimateAdapt.unctad.org. 111   Work under the project has been included as a case study in the report of the UN Secretary-​ General’s High-​level Advisory Board on Sustainable Transport, ‘Mobilizing Sustainable Transport for Development’, published in October 2016, at 27. 112   For a detailed substantive report, published by the UNECE Expert Group in 2014 see ‘Climate Change Impacts and Adaptation for International Transport Networks’(ECE/​TRANS/​238) http://​w ww. unece.org/​trans/​main/​w p5/​publication.html. 113  See http://​www.unoceans.org/​; and https://​sustainabledevelopment.un.org/​topics/​-​sustainabletransport/ ​highleveladvisorygroup. 114   The Framework has been developed by UNEP/​M AP, and was endorsed by the Contracting Parties to the Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution, at their 19th meeting in 2016. 115  See https://​lcc.eaudeweb.ro/​.



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Transport Systems in SIDS’ (2014),116 an UNCTAD expert meeting held on 14–​16 October 2015 and focusing ‘Sustainable freight transport systems: Opportunities for developing countries’117 as well as an ongoing UNCTAD technical assistance project, ‘Building the capacities of developing countries to shift towards sustainable freight transport’, which focuses on building capacities and providing advisory services to developing countries, including Caribbean SIDS, to enable a reorientation towards sustainable freight transport through sound transport policy measures and financing mechanisms.118

14.2.3 Outlook As the focal point within the UN system for the integrated consideration of trade and development issues, UNCTAD has an important part to play in assisting in the implementation of relevant international agreements and resolutions.119 An important recent development, with particular implications for ocean governance was the agreement of the 2030 Agenda for Sustainable Development, at the United Nations Sustainable Development Summit, in September 2015.120 The 2030 Agenda represents consensus by the international community on a ‘plan of action’ involving seventeen SDGs with 169 associated targets, which focus on the three dimensions of sustainable development (economic, social, and environmental), and are ‘integrated and indivisible, global in nature and universally applicable’. The SDGs are much more wide-​ranging and comprehensive than the earlier millennium development goals (MDGs). They aim to eradicate, rather than reduce, global poverty, as well as harmonize the development and environment agendas and address inequality by leaving no one behind. Implementation of the 2030 Agenda, together with implementation at of the Addis Ababa Action Agenda,121 which provides a global framework for financing for development post-​2015, is expected to bring increased opportunities for developing countries. Thus, UNCTAD has a role to play in assisting in this process. Sustainable and resilient transport122 is key to

 See http://​unctad.org/​en/​PublicationsLibrary/​dtltlb2014d2_​en.pdf.  Full information and background documentation is available through the meetings website:  http://​unctad.org/​en/​pages/​MeetingDetails.aspx?meetingid=687. 118  For further information see http://​unctad.org/​en/​Pages/​DTL/​T TL/​Infrastructure-​a nd-​Services. aspx. 119   Such as, for instance, the SIDS Accelerated Modalities of Action (SAMOA) Pathway, UNGA Res 69/​ 15 (14 November 2014), and the Paris Agreement on Climate Change, available at unfccc.int. 120   ‘Transforming our world:  the 2030 Agenda for Sustainable Development’ UNGA Res 70/​1 (25 September 2015). 121   ‘Addis Ababa Action Agenda of the Third International Conference on Financing for Development (Addis Ababa Action Agenda). The final text of the outcome document as adopted at the Third International Conference on Financing for Development (Addis Ababa, Ethiopia, 13–​16 July 2015) and endorsed by the General Assembly in its resolution 69/​313 of 27 July 2015’ http://​w ww.un.org/​esa/​ffd/​ wp-​content/​uploads/​2015/​08/​A AAA_​Outcome.pdf. 122  For a substantive research report on sustainable transport see ‘Transport for Sustainable Development  –​The Case of Inland Transport’ (ECE/​TRANS/​251), a UNECE report prepared in collaboration with other regional Commissions. The report contains detailed consideration of the different dimensions of sustainability, as well as extensive references and is of general interest for all modes of transportation. In addition, a technical report prepared by UNCTAD in 2017, entitled ‘Road Safety: Considerations in Support of the 2030 Agenda for Sustainable Development’, http://​unctad.org/​ 116

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sustainable development123 and, therefore, is among the cross-​cutting issues, of relevance for achievement of progress on several of the sustainable development goals and targets. These include, for example, SDG No 9, to ‘build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation’ and SDG  No 13, to ‘take urgent action to combat climate change and its impacts’, as well as target 1.5, in the important context of poverty reduction, to ‘build the resilience of the poor and those in vulnerable situations and reduce their exposure and vulnerability to climate-​related extreme events and other economic, social and environmental shocks and disasters’. Particularly relevant in the context of maritime transport, ship-​source pollution control and coastal zone management is SDG No 14, to ‘conserve and sustainably use the oceans, seas and marine resources for sustainable development’.124 Target 14.1 calls for significantly reducing all kinds of marine pollution by 2025, while target 14.2 calls for sustainably managing and protecting marine and coastal ecosystems by as early as 2020. Other targets are dedicated to minimizing and addressing the impacts of ocean acidification (target 14.3); by 2020, conserving at least 10 per cent of coastal and marine areas, consistent with national and international law and based on the best available scientific information (target 14.5); by 2020, effectively regulating harvesting and end overfishing, illegal, unreported, and unregulated (IUU) fishing and destructive fishing practices (target 14.4); and by 2020, prohibiting certain forms of fisheries subsidies which contribute to these practices (target 14.6). Target 14.7 particularly calls for increasing the economic benefits to SIDS and LDCs, from the sustainable use of marine resources, including through sustainable management of fisheries, aquaculture, and tourism, by 2030. In addition, target 14a calls for increasing scientific knowledge, developing research capacity and transferring marine technology, in order to improve ocean health and to enhance the contribution of marine biodiversity to the development of developing countries, in particular SIDS and LDCs; while target 14b calls for providing access for small-​scale artisanal fishers to marine resources and markets. Of particular importance for UNCTAD’s work on legal and regulatory issues in the field of transport is target 14c:  ‘Enhance the conservation and sustainable use

en/​pages/​PublicationWebflyer.aspx?publicationid=1963, was prepared as part of UNCTAD’s contribution to the progress of implementing road safety targets in the context of the 2030 Agenda for Sustainable Development. The report highlights a number of worldwide international legal instruments in the field of road safety, encourages developing countries membership in them, and recognizes that both sustainable transport and sustainable, inclusive, and high-​quality infrastructure, are of cross-​cutting importance for increasing economic growth, and attaining the SDGs. 123   International transport links are a most important facilitator of global trade and a prerequisite for socio-​economic development. Transport is, therefore, an essential component of sustainable development, a matter recognized inter alia by UNGA Res 69/​213 (19 December 2014). 124  Worth noting in this context is a joint ‘International Seminar on Oceans Economy and Trade: Sustainable Fisheries, Transport and Tourism’, co-​organized by UNCTAD, the Commonwealth Secretariat and the International Oceans Institute and held on 10–​12 May 2016 in Geneva. The event focused on SDG No 14 and considered, inter alia, a range of interconnected issues related to sustainable transport, ship-​source pollution prevention and control, and climate change adaptation for ports and other critical transport infrastructure. See also nn 144–​45.



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of oceans and their resources by implementing international law as reflected in the United Nations Convention on Oceans and the Law of the Sea, which provides the legal framework for the conservation and sustainable use of oceans and their resources, as recalled in paragraph 158 of The Future We Want’. Worth noting is the broad and inclusive wording of this target, which directs the international community to implement ‘international law as reflected in the UN Convention on the Law of the Sea . . . for the conservation and sustainable use of oceans and their resources’. Given the overall aim of target 14c in the context of SDG No 14, the integrated nature of the SDGs and targets, and the fact that in many respects UNCLOS125 is a framework convention, which requires substantive implementing legislation, it is clear that the reference must be interpreted broadly, as covering a wide range of international legal instruments pertaining to the conservation and the sustainable use—​economically, socially, and environmentally—​of oceans and their resources. This would also seem to follow from the express reference to para 158 of The Future We Want, the Rio+20 Conference outcome document.126 Thus, target 14c would seem to cover, inter alia, a wide range of international legal instruments adopted under the auspices of the IMO in the field of ship safety and marine environmental protection, as well as international conventions that were developed and adopted under the auspices of UNCTAD, or that have been the subject of some of the analytical studies and reports referred to above, such as, for instance the 1992 CLC and 1992 Fund Conventions.127

125   Regarding the key provisions of UNCLOS itself, it has been noted: ‘Navigational rights, territorial sea limits, economic jurisdiction, legal status of resources on the seabed beyond the limits of national jurisdiction, passage of ships through narrow straits, conservation and management of living marine resources, protection of the marine environment, a marine research regime and, a more unique feature, a binding procedure for settlement of disputes between States: these are among the important features of the treaty. In short, the Convention is an unprecedented attempt by the international community to regulate all aspects of the resources of the sea and uses of the ocean, and thus bring a stable order to mankind’s very source of life’. See ‘The United Nations Convention on the Law of the Sea (A Historical Perspective)’ http://​w ww.un.org/​depts/​los/​convention_​agreements/​convention_​historical_​perspective.htm. 126   Paragraph 58 of The Future We Want, UNGA Res 66/​288 (11 September 2012), reads: ‘We recognize that oceans, seas and coastal areas form an integrated and essential component of the Earth’s ecosystem and are critical to sustaining it, and that international law, as reflected in the United Nations Convention on the Law of the Sea, provides the legal framework for the conservation and sustainable use of the oceans and their resources. We stress the importance of the conservation and sustainable use of the oceans and seas and of their resources for sustainable development, including through their contributions to poverty eradication, sustained economic growth, food security and creation of sustainable livelihoods and decent work, while at the same time protecting biodiversity and the marine environment and addressing the impacts of climate change. We therefore commit to protect, and restore, the health, productivity and resilience of oceans and marine ecosystems, to maintain their biodiversity, enabling their conservation and sustainable use for present and future generations, and to effectively apply an ecosystem approach and the precautionary approach in the management, in accordance with international law, of activities having an impact on the marine environment, to deliver on all three dimensions of sustainable development’. Also worth noting is para 59, which provides: ‘We recognize the importance of the Convention on the Law of the Sea to advancing sustainable development and its near universal adoption by States, and in this regard we urge all its parties to fully implement their obligations under the Convention’. 127   The International Convention on Civil Liability for Oil Pollution Damage 1992 (1992 CLC) and International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1992 Fund Convention) were analysed in UNCTAD, ‘Liability and Compensation for Ship-​Source Oil Pollution:  An Overview of the International Legal Framework for Oil Pollution Damage from Tankers’ Studies in Transport Law and Policy 2012 No 1 (n 89). The wording of target

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The cross-​cutting nature of target 14c is particularly worth highlighting, as is its importance for achievement of progress on SDG No 14 as a whole. Laws and regulations are key tools for the effective implementation of public policy objectives;128 thus, progress on the implementation of target 14c is likely to advance achievement of progress on other SDG No  14 targets significantly. Progress on the implementation of target 14c itself can be measured by the ‘number of countries that make progress in ratifying, accepting, and implementing through legal, policy and institutional frameworks, ocean-​related instruments that implement international law, as reflected in UNCLOS, for the conservation and sustainable use of the oceans and their resources’.129 Research and analysis, as well as technical legal advice, to assist in the understanding of existing international legal instruments, will play a critical role, both in promoting their widespread ratification, and in ensuring their effective substantive implementation at national levels, as envisaged in target 14c. UNCTAD will continue to carry out its work in the field of maritime transport law and policy in accordance with its mandate,130and with a view to assisting in the implementation of the 2030 Agenda, including SDG No  14,131 as well as the implementation of the Addis Ababa Action Agenda,132 and other international agreements, such as the SAMOA Pathway133 and the Paris Agreement on climate change, which entered into force in November 2016.134 14c is understood to cover instruments related to fisheries, shipping, sea-​bed mining, labour, pollution, health of the marine environment, and conservation of marine biodiversity at global and regional levels. See also comment in n 11. 128   This is well illustrated by the success of the international conventions on ship-​source pollution prevention, response, and liability and compensation, in significantly reducing major pollution incidents and contributing to ship-​safety over recent decades. See further ‘Liability and Compensation for Ship-​ Source Oil Pollution: An Overview of the International Legal Framework for Oil Pollution Damage from Tankers’ (n 89). 129   Discussions regarding appropriate indicators for the measurement of progress on the SDGs and their operation are still in progress under the auspices of the Inter-​agency and Expert Group on SDG Indicators (IAEG-​SDGs). However, agreement has already been reached on the wording of indicator 14c.1, which is referred to in the text to this note. See Annex IV of the ‘Report of the Inter-​Agency and Expert Group on SDG Indicators’ (E/​CN.3/​2016/​2/​Rev.1) 56; http://​unstats.un.org/​unsd/​statcom/​47th-​ session/​documents/​2016-​2-​SDGs-​Rev1-​E .pdf. The wording of target 14c is understood to cover instruments related to fisheries, shipping, sea-​bed mining, labour, pollution, health of the marine environment and conservation of marine biodiversity at global and regional levels. 130   It should be noted that UNCTAD’s mandate for work related to sustainable and resilient transport has recently been strengthened by Member States in the outcome document of the latest quadrennial Conference, UNCTAD XIV, in July 2016. Inter alia, UNCTAD has been requested to continue to ‘assist developing countries in enhancing the sustainability and climate resilience of their transport systems and infrastructure, including coastal transport infrastructure and services and transport corridors’; and ‘contribute to policy dialogue and cooperation mechanisms in support of sustainable transport, climate change adaptation and disaster risk reduction for transport infrastructure, services, and operations, including collaborative efforts to support and strengthen the conservation and sustainable use of oceans and their resources’. See the Nairobi Maafikiano (TD/​519/​Add.2), paras 55(k) and (l) http://​unctad14. org/​Documents/​td519add2_​en.pdf. 131   UNCTAD’s work on transport law and policy as outlined in this contribution contributes to the implementation of a number of SDG targets, including targets 1.5, 9.1, 9a, 11b, 13.1, 13.2, 13.3, 14.1, 14.2, 14.7, and 14c. 132   Addis Ababa Action Agenda of the Third International Conference on Financing for Development. UNGA Res 69/​313 (27 July 2015). 133   SIDS Accelerated Modalities of Action (SAMOA) Pathway, UNGA Res 69/​15 (14 November 2014). 134  See www.unfccc.int.



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14.3  UNCTAD’s Role in the Governance of Trade in Fish Today our marine resources, particularly fish stocks, are facing significant anthropogenic pressures that pose unprecedented sustainability risks. Both the current capabilities and future potential of oceans to sustain these resources are being severely impacted by factors such as climate and temperature changes, sea water acidification, marine pollution, over-​fishing practices, illegal fishing activities, harmful incentives such as subsidies, and widespread mismanagement of stocks. Fish is an important traded commodity and a primary source of animal protein for many people. Since 2007, wild fish catch has stayed relatively constant at about 90 million tonnes. If good fish management policies are applied, catch may reach 93–​94 million tonnes by 2035.135 According to the Food and Agriculture Organization (FAO), close to 90 per cent of marine fish stocks are fully exploited, overexploited, or depleted,136 a that number has been steadily increasing since the 1970s. Indeed, half the fish stocks off the West African coast are classified as overharvested,137 meaning they are unable to recover. This underlines the severe deterioration of the overall state of global fish resources, generated by decades of abuse and lack of controls over fishing activities. International trade in fish and seafood reached a record value of US$142.8 billion in 2014.138 In volume terms, world fish trade rose from 15 million tonnes in 1991 to 45 million tonnes in 2014, that is, half of all global harvest. Developing countries accounted for around 56 per cent of 2014 trade, highlighting their growing role as major suppliers of marine products but also the importance of their views in ensuring the sustainable harvest and trade of fish preserves these resources for future generations. In response to these challenges, several multilateral agreements, regulations and voluntary codes, standards and initiatives have been developed under the principles set by the United Nations Convention on the Law of the Sea 1982 (UNCLOS) to conserve, sustainably use, and manage fish stocks and other marine resources from different perspectives. Examples of these include the United Nations Fish Stock Agreement (1995), the FAO Code of Conduct for Responsible Fisheries (1995), the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IUU) (2001), as well as the Port State Measures Agreement (2009). Several regional fisheries management organizations have also been created and regional schemes put in place to manage shared stocks. In parallel, with the increased consolidation of the globalization process and creation of the World Trade Organization (WTO) over the last two decades, a significant number of multilateral, regional, and bilateral trade agreements have emerged. These agreements mostly seek to enable the free flow of goods and services including fish, seafood products, and services that support fishing and processing activities, and to regulate trade relations among parties. International rules and policies applicable to 135   Sustainable Fisheries: International Trade, Trade Policy and Regulatory Issues (2016). See http://​ unctad.org/​en/​pages/​PublicationWebflyer.aspx?publicationid=1500. 136   FAO, ‘State of World Fisheries and Aquaculture (SOFIA)’ (2016). 137 138   Africa Progress Panel, ‘Grain, fish and Money’ (2014).   FAO (n 136).

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trade in fisheries deeply frame the way we harvest, use, and trade fish, seafood, and derivative products across borders. The multilateral trading system provides the governance structure for negotiating, monitoring, and implementing trade agreements. The WTO has a strong role in developing non-​discriminatory, transparent multilateral trade rules, adjudicating disputes and serves as the minimum floor for global trade relations. Multilateral trade rules and policies, including tariffs, tariff escalation, non-​tariff measures (technical and sanitary measures), and unfair competition actions such as subsidies and dumping, seek to regulate and address several measures that directly affect trade flows of fish and seafood products, as well as to define channels for dispute resolution. Interestingly, many of the most high profile WTO dispute cases adjudicated by panels and the appellative body were related to marine resources such as tuna, dolphins, shrimp, swordfish, hake, and seals. The ITC has a role in supporting participation of small and medium-​sized enterprises (SMEs) in international trade but is not engaged in trade policy-​making. UNCTAD, as the United Nations focal point on trade and development, has a key role in enabling the participation and integration of developing countries in the global economy, in building consensus in trade negotiations from a development perspective, and in undertaking policy research and in providing technical assistance for member states. In this regard, UNCTAD plays a significant role in balancing multilateral outcomes and in promoting the development friendly implementation of trade agreements. UNCTAD supports developing countries to understand how these rules apply to trade in fish and enable their participation in a global, sustainable market. The work of UNCTAD on the trade of fish is relatively recent, emerging as a consequence of increased focus on oceans by the Rio+20 Outcome document, the SAMOA Pathway, and by long-​standing interest of WTO members in reducing tariff and non-​tariff measures on industrial products139 and in addressing subsidies that contribute to overfishing and overcapacity, UNCTAD has identified several areas on the interface between trade rules, other multilateral agreements, and soft laws dealing with trade in fish and seafood: • improving market access conditions to fish and seafood products from developing countries (including by seeking to reduce tariffs and non-​tariff measures) • addressing incentives harmful to fish conservation and sustainable use (fish subsidies and IUU fishing) • enabling increased understanding of trade issues for fish related authorities and of fish policies for trade authorities • facilitating access to markets by small-​scale artisanal fishers • ensuring that international rules affecting trade in fish consider the particularities of developing countries, especially SIDS and LDCs

139

  Fish is listed as an industrial product by the WTO.



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• promoting the design and implementation of national Oceans Economy and Trade Strategies in developing countries, maximizing benefits while ensuring sustainable use of marine resources. In order to respond to these challenges, UNCTAD takes action across three pillars:  research, expert and multi-​stakeholder dialogue, and building consensus and partnerships.

14.3.1 UNCTAD policy research pillar Several research studies have been produced to identify current trends, main concerns, policy gaps, and opportunities for sustainable fisheries, especially for SIDS and LDCs. This work has been focused on wild capture and marine resources, and includes the following documents.

(a) Oceans Economy: Opportunities and Challenges for Small Island Development States (2014) The report underlines the importance of sustainable oceanic activities for the development of SIDS and other coastal states.140 Both opportunities and challenges are identified in existing and emerging trade-​related sectors such as sustainable fisheries and aquaculture, renewable marine energy, marine bio-​prospecting, maritime transport and marine and coastal tourism. It also points to the need to consider the formation of regional economic groupings that combine their ‘economic exclusive zones’ under a common oceans economic space in order to be able to seize, manage, and sustainably use joint resources and build common infrastructures.

(b) Sustainable Fisheries: International Trade, Trade Policy, and Regulatory Issues (2015) The note highlights the management-​related targets on fish of SDG No 14, which imply a joint implementation effort within a multilayer and multijurisdictional governance system.141 These targets represent the strong aspirations of the global community, at the highest political level, to prioritize and focus attention on restoring the health and resilience of our oceans and resources, including fish, over the next fifteen years. This chapter outlines a set of policy recommendations provided by UNCTAD expert groups on governance, market access conditions, the need to tackle harmful incentives and actions (subsidies and IUU fishing), restoring fish stocks and marine ecosystems, and addressing costs and capability constraints for value addition.

 See http://​unctad.org/​en/​PublicationsLibrary/​ditcted2014d5_​en.pdf.  See http://​unctad.org/​en/​PublicationsLibrary/​webditcted2015d5_​en.pdf.

140 141

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(c) The 2016 Trade and Environmental Review: Trade in Fish This flagship publication examines issues pertinent to the promotion of sustainable use of living marine resources in healthy oceans and seas, bringing together a collection of independent articles by twenty-​four leading experts and practitioners on fish governance systems; fish harvest, production, and consumption; unsustainable fishing practices; fish and marine ecosystems management; and fish trade.142 The review provides a succinct diagnosis of some of the key challenges to be faced in addressing SDG No  14, as well as novel suggestions and innovations to advance its implementation. Further, the review contends that trade-​related measures should seek to strengthen the implementation of the existing international legal regime for fisheries, in particular that multilateral, regional, and bilateral trade agreements should build on multilateral United Nations instruments seeking oceans conservation and sustainable fisheries, along with stronger links between obligations and technical cooperation and capacity building in these agreements. TER16 points towards the prohibition under the Trans-​ Pacific Partnership (TPP) of the most harmful fishing subsidies and IUU fishing as a clear way forward while calling for special and differential treatment and a trade facilitation approach at the multilateral level.

14.3.2 UNCTAD expert dialogue pillar In coordination with the Commonwealth Secretariat and the International Oceans Institute, UNCTAD jointly organized Ad Hoc Expert Meetings in 2015 and 2016, involving more than 120 leading experts and stakeholders working on oceans and fisheries issues. The first was dedicated to ‘Trade in Sustainable Fisheries’143 while the second had a larger scope and focused on ‘Oceans Economy and Trade: Sustainable Fisheries, Transport and Tourism’.144 As a consequence of these experts meetings, the chairmen145 issued a series of expert recommendations on the contribution of trade in addressing current concerns on overfishing, overcapacity of fleets, harmful incentives such as subsidies and IUU fishing, oceans acidification, pollution by ships, the sustainability of marine transport and ports systems and strengthening links between seafood production and tourism. All recommendations were sent to UNCTAD’s Trade and Development Board (TDB) for validation by member states, then becoming sources of soft law for implementation by member states and use by the UNCTAD Secretariat in technical cooperation activities. The recommendations approved by the TDB have proven to be source of inspiration for identification of policy options by rule-​making bodies, including the WTO and FAO, and the implementation of national trade and development plans by members states. Several international organizations have been

 See http://​unctad.org/​en/​pages/​PublicationWebflyer.aspx?publicationid=1662.  See https://​w ww.google.ch/​s earch?q=Ah+hoc+expert+meeting+on+trade+in+sustainabl e+fisheires-​& ie=utf-​8&oe=utf-​8&client=firefox-​b&gfe_​rd=cr&ei=TqL7V8DkAYe3VNO4ttgF. 144  See http://​unctad.org/​en/​pages/​MeetingDetails.aspx?meetingid=1082. See also n 124. 145  See http://​u nctad.org/​m eetings/​e n/​S essionalDocuments/​d itc-​t ed-​A HEM-​29092015-​C hair-​ Conclusion.pdf and http://​unctad.org/​meetings/​en/​SessionalDocuments/​ditc-​ted-​10052016-​oceans-​ chairman-​summary.pdf. 142

143



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explicitly involved in UNCTAD expert meetings to ensure policy coherence and the dissemination of results, including the United Nations Division of Oceans Affairs and Law of the Sea (DOALOS), FAO, UNEP, WTO, UNWTO, OECD, and African, Caribbean, and Pacific (ACP) states. Further, leading civil society organizations were invited to provide their views including WWF, Oceana, IISD, and IOI. Box 14.1 provides a list of some these recommendations.

Box 14.1  Illustrative list of recommendations on Oceans Governance arising UNCTAD Ad Hoc Expert Meeting on Oceans and Sustainable Fisheries (2015–​2016) • There must be a collective effort at global, regional, and national levels for a more sustainable and responsible fisheries management. SDG 14 urges accelerated actions in this regard. Achieving SDG 14 would also support achievement of SDG 1 on poverty, SDG 2 on hunger and food security, and SDG 8 on inclusive and sustainable growth and employment. • There is a wide array of international law, soft law, rules, and frameworks dealing with conservation, harvesting, and trading in fish in the high seas and in countries’ exclusive economic zones. These include the UNCLOS, UN Fish Stocks Agreement, other FAO treaties and soft laws, and the UN General Assembly resolutions, as well as applicable rules under WTO at the international level. Experts indicated the need to promote the participation and ratification of these instruments. • There is a need better to understand the vast tapestry of ocean governance of hard and soft legal frameworks in order to better leverage policies and actions to ensure implementation of SDG 14. There is a key role to be played by UN DOALOS, FAO, UNCTAD, IMO, WTO, UNWTO, and the Commonwealth in enhancing clarity, understanding, and coherence. • Trade can have a significant role of implementing SDG 14, especially targets 14.4, 14.6, 14.7, 14b and c, among others. Efforts to implement SDG 14 and sustainable fisheries in particular should be incorporated into multilateral regional and unilateral binding and voluntary frameworks governing fisheries production, harvest and trade. • Monitoring progress on implementation of SDG 14 should be a priority. Member States need to engage in the UN High Level Conference ‘Our Oceans, our planet’ held in June 2017, seeking to monitor advances in the implementation under SDG and related goals. • At the regional and national levels, there are regional fisheries management organizations and national fisheries authorities. In view of the multiplicity of the instruments, further coherence among these existing bodies of laws or instruments should be promoted, seeking mutual supportiveness and ensuring that in the design of regional and national rules they are taken into consideration. • In terms of trade rule-​making, the crafting of mega-​regional trade and bilateral agreements in regard to fisheries trade should build upon the ‘acquis’ attained and stabilized at the multilateral level. • Governance and regulation of fisheries in the high seas should be improved. While there are principles and provisions under UNCLOS and the UN Fish Stocks Agreement, there is a need to better implement and monitor for surveillance of fishing activities in the high seas. Source: UNCTAD (2016)

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14.3.3 Consensus building in addressing harmful incentives At the Fourteenth UNCTAD Ministerial Conference in July 2016, UNCTAD, FAO, and UNEP issued a landmark political statement and international call146 to member states and the international community to deliver on trade-​related targets under SDG No 14. This goal encompasses a specific target (SDG No 14.6) to prohibit by 2020 those fisheries subsidies that lead to overcapacity and overfishing, to eliminate subsidies that contribute to IUU fishing and to refrain from adopting such subsidies. The statement includes a four-​point plan: (1) require countries to provide information on the subsidies they provide; (2) prohibit those subsidies that contribute to overfishing and illegal fishing; (3) introduce new policies tools to deter the introduction of new harmful subsidies; (4) provide special and differential treatment to developing countries. The statement was supported by ninety-​one member states, four international and regional organizations, and more than ten global NGOs. It was considered one of the main outcomes of the Conference and a fundamental tool to build consensus on the road to the United Nations High Level Conference ‘Our Oceans, Our Future’ and to the WTO Ministerial Conference (in Argentina), both in 2017. While not consensual, of all relevant proposals in the WTO and arenas, this has gathered most support, paving the way for closing the gaps between differing positions on the matter.

14.3.4 Conclusions and the New UNCTAD XIV Mandate While engagement in international negotiations and rule-​making on trade in fish and seafood products is relatively new, UNCTAD is playing a unique catalysing function in the advancement of trade-​related aspects of SDG No 14 and its respective targets with the United Nations system. This is mainly to its unique role as the trade and development focal point within this system. Enabling the participation and integration of developing countries in the global fish and seafood market has proven not to be an easy task, due to the level of tariff escalation and the accumulation of non-​tariff barriers. UNCTAD is also providing a key role in building consensus in trade negotiations from a development perspective, as shown by UNCTAD-​FAO-​UNEP statement on fish subsidies at UNCTAD 14. Solid policy research has closely accompanied consensus building actions, informing expert and multi-​stakeholder debates and filtering and promoting the most relevant and feasible policy options for promoting sustainability in the trade of fish. In the outcome document of UNCTAD XIV, the Nairobi Maafikiano,147 in paragraph 100(t) member states entrusted UNCTAD: in cooperation with other relevant international organizations and other stakeholders, to support developing countries, in particular SIDS, in the advancement of Sustainable Development Goal 14 in the design and implementation of regional and/​ 146   ‘UNCTAD-​FAO-​U NEP, Joint Statement on Fisheries Subsidies’ (2016) http://​unctad.org/​en/​pages/​ MeetingDetails.aspx?meetingid=1170. 147   See ‘Nairobi Maafikiano. From decision to action:  Moving towards an inclusive and equitable global economic environment for trade and development’ (TD/​519/​Add.2) (5 September 2016)  http://​ unctad.org/​meetings/​en/​SessionalDocuments/​td519add2_​en.pdf.



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or national economic development strategies for the conservation and sustainable use of oceans and their resources seeking to promote sustainable trade in ocean-​based sectors including through analysis of fisheries subsidies that lead to overcapacity and overfishing and subsidies that contribute to illegal, unreported and unregulated fishing and the challenges they pose to developing countries, particularly in connection with the conservation of marine resources and food security.

With this new mandate, a new course has been set by requesting UNCTAD to provide technical cooperation and support in developing national strategies for the implementation of SDG No 14 and to deepen its analytical role in assessing the impact of fish subsidies on developing countries, marine resource conservation and food security. UNCTAD is currently designing a new technical assistance support programme seeking to assist developing countries, and especially SIDS and LDCs, in designing oceans economy and trade strategies so they can harness the sustainable use of marine resources for the emergence of new oceans economic sectors and the development of existing ones.

15 Our Oceans, Our Livelihoods The World Bank and Oceans Governance Meagan Wong and Olufemi Elias

‘It’s been a while since we’ve had lots of fish coming in. Everything is hard now’ Kismiyah, Fish Seller, Bali, Indonesia ‘If the ocean is destroyed, it would be like destroying us because our well-​being and wealth are contained within the ocean’ Alia Ambrau, Community Leader, Papua, Indonesia

15.1  The World Bank 15.1.1 Institutional overview and structure The World Bank, an international financial institution established in 1944, comprises two institutions: the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA). The World Bank Group is a closely associated group of five institutions: (i) IBRD; (ii) IDA; (iii) the International Finance Corporation (IFC); (iv) Multilateral Investment Guarantee Agency (MIGA); and (v) the International Centre for the Settlement of Investment Disputes (ICSID). The roles of these five institutions can be summarized as follows: (i) the IBRD lends to governments of middle-​income and creditworthy low-​income countries; (ii) the IDA provides credits (interest-​free loans) and grants to governments from the most impoverished countries; (iii) the IFC focuses exclusively on the private sector, helping developing countries to achieve sustainable growth by financing investment, mobilization capital in international financial markets, and providing advisory services to businesses and governments; (iv) the MIGA promotes foreign direct investment into developing countries to support economic growth, reduce poverty, and to improve the lives of peoples—​by offering guarantees to investors; and (v) the ICSID provides for conciliation and arbitration of investment disputes.1 The World Bank Group comprises 189 member states.2

1 2

  ‘About the World Bank’ http://​w ww.worldbank.org/​en/​about.   ‘Member Countries’ http://​w ww.worldbank.org/​en/​about/​leadership/​members.



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15.1.2 Position in the United Nations system The World Bank Group as such has no legal personality. The IBRD, IFC, and IDA are specialized agencies of the United Nations (UN). Membership in any affiliate institution of the World Bank Group is not conditional upon membership in the UN. However, a state has to first be a member of the International Monetary Fund (IMF) before a state can be a member of the IBRD. Membership in other affiliate institutions is conditional upon membership in the IBRD. Cessation of membership in the IBRD entails cessation of membership automatically at the IDA and IFC, but not in the MIGA and the ICSID.

15.1.3 Mission of the World Bank The World Bank Group has set two goals for the world to achieve by 2030: (i) end extreme poverty by decreasing the percentage of people living on less than US$1.90 a day to no more than 3 per cent; (ii) promote shared prosperity by fostering the income growth of the bottom 40 per cent for every country.3

15.2  Our Oceans: Our Earth’s Valuable Natural Assets, Ecosystems, and Economies 15.2.1 Coastal states: duties and obligations, and coastal economies The United Nations Convention on the Law of the Sea 1982 (UNCLOS) provides a legal framework for the conservation and management of living resources. This framework is predicated upon a ‘zonal approach’, under which different rules are applicable to the different area of sea, regarding the rights and duties of states with regard to the conservation and management of living resources. Although the ‘zonal approach’ has been criticized with regard to oceans governance in the light of its contemporary relevance and artificial construct in relation to biological nature,4 it remains the basis of the present law of the sea. States have exclusive rights over the exploitation of the marine living resources in their internal waters and territorial seas, and each state has the right to establish the breadth of its territorial sea up to a limit not exceeding twelve nautical miles.5 In addition, states are entitled to claim an exclusive economic zone (EEZ) of up to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.6 Within the EEZ, pursuant to Article 56(1) of UNCLOS, the coastal state has

  ‘Ending extreme poverty and promoting shared prosperity’ http://​w ww.worldbank.org/​en/​news/​feature/​2013/​04/​17/​ending_​extreme_​poverty_​a nd_​promoting_​shared_​prosperity. 4   Y Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and Integrated Management in International Law of the Sea (Ashgate International Law Series 2009), 6–​8. Tanaka submits that ‘the law of the sea based on the zonal management approach has not yet sufficiently considered the fluid and dynamic nature of the ocean as well as the intricate relationship of marine ecosystems and the environments that support them’, at 7. 5   UN Convention on the Law of the Sea (UNCLOS), art 3. 6   UNCLOS, art 57; see UNCLOS, Pt V. 3

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sovereign rights for the purpose of exploring, exploiting, conserving, and managing living natural resources within this marine space. Of all commercially exploitable fish stocks caught, 90 per cent are caught within the EEZ.7 Thus, the creation of the EEZ pursuant to UNCLOS has essentially redistributed the exploitation of living resources from a right to all pursuant to the principle of freedom in the high seas to coastal state competence. With the right to exploitation comes the concomitant primary duty on coastal states to conserve and manage living resources within the EEZ,8 along with an obligation on states for regional and global cooperation towards conservation and management of straddling stocks and highly migratory species.9 The EEZ, along with the territorial sea and internal waters, provide a substantial marine space(s) for coastal states to exploit living resources in these waters. This means jobs and livelihoods for the population within coastal states:10 fisheries are an integral part of coastal economies,11 and bear even greater significance in coastal communities.12 A healthy ocean ensures multiple benefits for coastal economies, as optimal stocks of marine living resources and freshwater ecosystems provide the potential for wealth and economic growth, as well as food production.13 For example, in 2012, fisheries produced approximately 160 million tons of fish, generating over US$129 billion in exports.14 It has been reported that the global trade in seafood tends to follow heavily from developing to developed countries.15 Apart from the obvious economic aspect, fisheries may also be representative of cultural identity, traditional knowledge, and way of life in coastal communities and small-​scale fishing communities. Furthermore,

  Yoshifumi Tanaka, The International Law of the Sea (2nd edn, Cambridge University Press 2015) 234–​35; Robin Churchill and Vaughan Lowe, The Law of the Sea (3rd edn, Manchester University Press 1999) 162. 8   Notably, UNCLOS does not provide any obligations on coastal states with regard to conservation of marine living resources within their internal waters, territorial seas, and/​or archipelagic waters. 9   UNCLOS, arts 51, 61–​63. 10   It is reported that, in 2012, coastal areas within 100 kilometres of the ocean account for an estimate 61 per cent of the world’s total gross national product (GNP) and are of particular importance for developing countries: see World Bank, ‘Oceans, Fisheries and Coastal Economies’ http://​beta.worldbank. org/​en/​topic/​environment/​brief/​oceans. 11   FAO estimates that fisheries and aquaculture assure the livelihoods of 10–​12 per cent of the world’s population (http://​w ww.fao.org/​3/​a-​i3720e.pdf ), cited in World Bank ‘Oceans, Fisheries and Coastal Economies’ (n 10). 12  ibid. 13   For example, Colin Bruce, World Bank Director for the African Region, has said that: ‘Fisheries are a key contributor to food security, nutrition and job creation for rural coastal populations of the South West Indian Ocean, who are among the poorest and most vulnerable in the region’: ‘World Bank Boosts Fisheries in South West Indian Ocean African Countries’ http://​w ww.worldbank.org/​e n/​n ews/​press-​r elease/​2 015/​0 2/​27/​world-​b ank-​b oosts-​f isheries-​i n​south-​west-​indian-​ocean-​a frican-​countries. 14   World Bank, ‘Oceans, Fisheries and Coastal Economies’ (n 10). 15   FAO, ‘Fish to Food 2030’ http://​w ww.fao.org/​docrep/​019/​i3640e/​i3640e.pdf. It is also reported, according to the FAO, at present 38 per cent of all fish produced in the world is exported and in value terms, over two-​t hirds of fishery exports by developing countries are directed to developed countries, at 60; see also http://​w ww.worldbank.org/​en/​news/​press-​release/​2014/​02/​05/​fish-​farms-​global-​food-​fish-​supply-​2030. 7



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fisheries provide jobs for both men and women, thereby allowing for the promotion of gender equality in many developing countries.16 There are fifty-​four lower-​and lower-​middle-​income coastal and island client countries in the World Bank Group, and practically two-​thirds of their total territory is ocean: ‘for many of these countries, this ocean space is a crucial source of goods and services that can help end extreme poverty and promote shared prosperity’.17

15.2.2 Food security Fish are an important source of food, in particular, an important source of animal protein. The Food and Agricultural Organization (FAO) has reported that fish represent 16.6 per cent of animal protein supply and 6.5 per cent of all protein for human consumption.18 Furthermore, ‘fish is usually low in saturated fats, carbohydrates, and cholesterol and provides not only high-​value protein but also a wide range of essential micronutrients, including various vitamins, minerals, and polyunsaturated omega-​3 fatty acids’.19 Fish are therefore an important source of food and nutritional security. Additionally, seafood has become a popular choice in gourmet lifestyles and cuisines, as well as the main part of the pescatarian diet. This creates an increase in demand for seafood.20 An increase in demand for seafood could lead to problems such as overfishing, and the depletion of fish stocks, which in turn has an effect on the ecosystem.21 It is therefore necessary to ensure that fishing practices are sustainable 16  See ‘Fishing communities in the Comoros develop fishing management projects’ http://​w ww. worldbank.org/​en/​news/​feature/​2 016/​0 6/​14/​f ishing-​c ommunities-​i n-​t he-​comoros-​develop-​f ishing-​ management-​projects. 17  World Bank, ‘Oceans:  Sector Results Profile’ http://​w ww.worldbank.org/​en/​results/​2013/​04/​13/​ oceans-​results-​profile. 18   Globally, fish currently represents about 16.6 per cent of animal protein supply and 6.5 per cent of all protein for human consumption (FAO 2012). Fish is usually low in saturated fats, carbohydrates, and cholesterol and provides not only high-​value protein but also a wide range of essential micronutrients, including various vitamins, minerals, and polyunsaturated omega-​3 fatty acids (FAO 2012). Thus, even in small quantities, provision of fish can be effective in addressing food and nutritional security among the poor and vulnerable populations around the globe. 19   FAO, ‘Fish to Food 2030’ (n 15), xiii. 20   It has been reported that:  (i) ‘major and growing market for fish is coming from China which is projected to account for 38 per cent of global consumption of food fish by 2030. China and many other nations are increasing their investments in aquaculture to help meet this growing demand’; (ii) ‘Asia—​ including South Asia, South-​East Asia, China and Japan—​is projected to make up 70 percent of global fish consumption by 2030. Sub-​Saharan Africa, on the other hand, is expected to see a per capita fish consumption decline of 1 per cent per year from 2010 to 2030 but, due to rapid population growth of 2.3 per cent in the same period, the region’s total fish consumption will grow by 30 percent overall’ http://​ www.worldbank.org/​en/​news/​press-​release/​2014/​02/​05/​fish-​farms-​global-​food-​fish-​supply-​2030. 21   Experts have summarized the ‘ecosystem effects’ of overfishing activities as follows. Overfishing (i) affects predator–​prey relationships, which can lead to shifts in community structure that do not revert to the original condition upon the cessation of fishing pressure; (ii) can alter the population size and body size composition of species, by affecting populations of large slow-​growing and late maturing species, which could lead to a fauna composed of primarily small-​sized individual organisms. This can lead to shifts in the relative abundance of species with different life history characteristics, independent of any changes in species interactions; (iii) can affect populations of non-​target species (eg cetaceans, birds, reptiles, and elasmobranch fish) as a result of by-​catches or ghost fishing; (iv) can reduce habitat complexity and perturb seabed (benthic) communities; and (v) can lead to genetic selection for different body and reproductive traits and can extirpate distinct local stocks. Selective harvesting, such as fisheries that favour capture of one sex over another, thus altering the sex ratio or sex-​specific size frequency, or both, or

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and that coastal states comply with their obligations to conserve and manage living resources in their EEZs to ensure that fish stocks remain at their optimal level.22 Ultimately, as the oceans are representative of marine living resources for food production, fisheries need to be efficient in utilizing productive resources. A growing world population is indicative of the need to promote and secure food and nutrition; it is expected for global population to reach 9 billion by 2050.23 It has been reported that, in the last three decades, capture fisheries production increased from 69 million to 93 million tons.24 In today’s global world, aquaculture also plays a significant role in the food-​producing sector in relation to seafood.25 It has been reported that world aquaculture production has increased from 5 million to 63 million tons.26 As the oceans contain resources for food production, fisheries need to be efficient in utilizing productive resources. It has been reported that in the last three decades, capture fisheries production increased from 69 million to 93 million tons.27 The challenges that arise in the face of increased food production in relation to seafood are inter alia environmental concerns—​such as the production of waste, the scarcity of land and water, the scarcity of marine living resources, climate change, and global warming. In the face of such environmental concerns, fisheries and aquaculture need to be prepared to address these challenges and to ensure that their food production is done sustainably; as said by Juergen Voegele, the World Bank’s Director of Agriculture and Environmental Services: Supplying fish sustainably –​producing it without depleting productive natural resources and without damaging the precious aquatic environment –​is a huge challenge. . . . We continue to see excessive and irresponsible harvesting in capture fisheries and in aquaculture, disease outbreaks among other things, have heavily impacted production. If countries can get their resource management right, they will be well placed to benefit from the changing trade environment.28

In a recent report of the World Bank, the FAO, and the International Food Policy Research Institute (IFPRI) entitled Fish to 2030: Prospects for Fisheries and Aquaculture (‘Fish to Food 2030’),29 it was reported that:

fisheries that remove the late-​maturing fish, can have a high degree of impact on the genetic diversity of marine species populations, in addition to a real danger of extinction. See United Nations, Report of the Secretary-​General, ‘Oceans and the Law of the Sea’, A/​59/​62/​Add.1 (18 August 2004). 22   UNCLOS, arts 61–​63. 23   FAO, ‘Fish to Food 2030’ (n 15) xiii; see also World Bank Group (WBG) Agricultural Action Plan 2013, 151. 24   FAO, ‘Fish to Food 2030’ (n 15) xiii. 25   In the FAO, ‘Fish to Food 2030’ report, it was predicted that ‘62  percent of food fish will come from aquaculture by 2030 with the fastest supply growth likely to come from tilapia, carp, and catfish. Global tilapia production is expected to almost double from 4.3  million tons to 7.3  million tons a year between 2010 and 2030’; see http://​w ww.worldbank.org/​en/​news/​press-​release/​2014/​02/​05/​ fish-​farms-​global-​food-​fish-​supply-​2030. 26 27   FAO, ‘Fish to Food 2030’ (n 15) xiii.  ibid. 28   ‘Raising more fish to meet rising demand’ http://​w ww.worldbank.org/​en/​news/​feature/​2014/​02/​05/​ raising-​more-​fish-​to-​meet-​rising-​demand. 29   FAO, ‘Fish to Food 2030’ (n 15).



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Many of the fishers and fish farmers in developing countries are smallholders. The Food and Agriculture Organization (FAO) estimates that 55 million people were engaged in capture fisheries and aquaculture in 2010, while small-​scale fisheries employ over 90 percent of the world’s capture fishers (FAO 2012). To these small-​scale producers fish are both sources of household income and nutrients, and sustainable production and improved efficiency would contribute to improve their livelihoods and food security. Sustainably managing marine and coastal resources, including fish stock and habitat, would also help building and augmenting resilience of coastal communities in the face of climate change threats.30

15.2.3 Food security and marine biodiversity The oceans contain the planet’s highest biodiversity in its marine life. Article 2 of the Convention on Biological Diversity defines ‘biological diversity’ as ‘the variability among living organisms from all sources including, inter alia, terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems’. Biological diversity means the ‘variability of life in all its forms, level and combinations’.31 Genetic libraries within each species contain evolutionary events on the earth. Marine biodiversity, like all forms of biological diversity, is essential for human life as part of the maintenance of the biosphere. Tanaka submits that ‘given its vital importance for the survival of mankind, . . . conservation of (marine) biological diversity is considered as a community interest of the international community as a whole’.32 Yet, marine biological diversity appears to be rapidly declining.33 It has been reported that approximately ‘20 per cent of the world’s coral reefs were lost and an additional 20 per cent degraded in the last several decades of the twentieth century’.34 As coral reefs are homes to a high quantity of marine biodiversity, the loss thereof, is indicative of depletion of marine species. Unfortunately, marine biodiversity is irreplaceable, meaning that once it is lost, it cannot be revived. It is reported that: the coral triangle between Indonesia, Malaysia, Papua New Guinea, Philippines, the Solomon Islands and Timor-​Leste, includes some of the planet’s highest biodiversity, on par with the Amazon rainforest, including 76 percent of all known coral species and over 3,000 fish species; with more than 120 million people in the region directly dependent on marine resources for income, livelihoods and food (coral reef-​related fisheries in Indonesia and the Philippines alone are valued at around $2.2 billion per year, and reef-​based tourism is valued at another $258 million annually).35

 ibid xiv.   P Birnie, A Boyle, and C Redgwell, International Law and the Environment (Oxford University Press 2009) 588. 32  Tanaka, The International Law of the Sea (n 7) 335. 33   ibid. See also Walter V Reid and others, Ecosystems and Human Well-​Being: Synthesis, A Report of the Millenium Ecosystem Assessment (Island Press 2005) 26. 34 35  ibid.   World Bank, ‘Oceans: Sector Results Profile’ (n 17). 30 31

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Thus, marine biodiversity and healthy ecosystems are essential not only for human survival, but are also a source of income and food production for coastal states. The main threats to ecosystems by means of anthropogenic pressures that may affect key species and habitats have been identified (in no particular order): pollution; marine debris; land-​based activities, including airborne pollution; climate change and cyclical climate variability; over-​fishing and destructive fishing practices; shipping (eg pollution, collisions); noise; alien species; waste disposal; seafood drilling and mining; laying of cables and pipelines; marine scientific research and commercially oriented activities relating to genetic resources; tourism;36 ‘[t]‌hese threats interact with key and vulnerable habitats and species to give areas of particular concern. Moreover, the nature and intensity of several impacts or pressures vary from place to place, as does the vulnerability of different marine species and ecosystems’.37

15.2.4 Climate change The impacts of climate change on the oceans are of grave concern; such impacts include inter alia, ‘sea-​level rise, coastal erosion, ocean acidification, altered food web dynamics, shifting species distributions, and reduced abundance of habitat forming species, including corals’.38 Tanaka notes that a particular concern with regard to the adverse impact of climate change on marine biodiversity, as ‘climate change can affect marine ecosystems in many ways, modifying ecosystem structure and functioning’.39 Yet, the World Bank strongly holds the view that a healthy ocean is ‘fundamental to the global effort to mitigate climate change’.40 The ocean contains ‘blue carbon’ sinks, for example, mangrove forests, sea grass beds, and other vegetated ocean habitats, which can sequester up to five times the amounts of carbon absorbed by tropical forests, thereby absorbing 25 per cent of additional carbon dioxide from the earth’s atmosphere.41 It has been reported that the oceans have taken up to 40 per cent of the anthropogenic carbon dioxide emissions over the past 200 years.42 Despite its key role in mitigating climate change, the ocean suffers as the absorption of carbon dioxide has the effect of altering the chemistry of the ocean, decreasing its pH and making it more acidic.43 Tanaka comments that: ‘whilst precise efforts of acidification are hard to predict there are growing concerns that ocean acidification would affect many marine ecosystems and organisms, including corals, since the influx of carbon dioxide decreases the availability of carbonate ions which are necessary for marine calcifiers to build their shells and skeletons’.44   United Nations, Report of the Secretary-​General, ‘Oceans and the Law of the Sea’ (n 21) 54–​61.   ibid para 205. 38  Tanaka, The International Law of the Sea (n 7) 323; O Hoegh-​Guldberg and J F Bruno, ‘The Impact of Climate Change on the World’s Marine Ecosystems’ (2010) 328 Science 1523. 39  Tanaka, The International Law of the Sea (n 7) 335. 40   http://​w ww.worldbank.org/​en/​results/​2013/​04/​13/​oceans-​results-​profile. 41   http://​w ww.worldbank.org/​en/​results/​2013/​04/​13/​oceans-​results-​profile. 42   R E Zeeb, J C Zachos, K Calderia, and T Tyrell, ‘Carbon Emissions and Acidification’ (2008) 321 Science 51. 43   R A Kerr, ‘Ocean Acidification Unprecedented, Unsettling’ (2010) 328 Science 1500. 44  Tanaka, The International Law of the Sea (n 7)  325; O Hoegh-​Guldberg and others, ‘Coral Reefs under Rapid Climate Change and Ocean Acidification’ (2007) 318 Science 1737. 36 37



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15.2.5 Challenges Our oceans, which represent livelihoods, food security, and wealth, have suffered owing to human activity diminishing the ability of underlying natural systems to provide optimal levels of ecosystem services.45 This gives rise to concern that the oceans are contributing significantly less than their potential to reduce poverty and promote wealth. The World Bank has identified the following anthropogenic drivers resulting from the inability of institutions to sustainably manage human actions: overfishing;46 pollution;47 habitat loss or conversion;48 climate change and ocean acidification.49

15.2.6 The need to promote marine and coastal area asset management: understanding ecosystems The connection between natural assets and resources within the ocean and sustainable development on the one hand and the need for marine and coastal asset management can be seen in international instruments. In Agenda 21, adopted at the United Nations Conference on Environment and Development, paragraph 17(1) stipulates: The marine environment—​including the oceans and all seas and adjacent coastal areas—​forms an integrated whole that is an essential component of the global life-​ support system and a positive asset that presents opportunities for sustainable development. . . . This requires new approaches to marine and coastal area management

45   http://​w ww.worldbank.org/​en/​topic/​environment/​brief/​oceans; http://​w ww.worldbank.org/​en/​results/​2013/​04/​13/​oceans-​results-​profile. 46   It has been reported that ‘the FAO estimates that approximately 57 per cent of fish stocks are fully exploited and another 30  per  cent are over-​exploited, depleted or recovering. Fish stocks are further exploited by illegal, unreported and unregulated fishing, responsible for roughly 11 to 26 million tons of fish catches or US$10–​22 billion in unlawful or undocumented revenue. In fact, poor fisheries management squanders roughly US$80 billion annually in lost economic potential. Fish habitats are also under pressure from pollution, coastal development, and destructive fishing practices that undermine fish population rehabilitation efforts’ http://​w ww.worldbank.org/​en/​topic/​environment/​brief/​oceans. In an earlier report, the World Bank has identified that: ‘Technological improvements coupled with open access to fish stocks have led to roughly one-​t hird of the world’s ocean fisheries being over-​exploited or depleted. Fishing capacity is estimated to be 2.5 times greater than sustainable harvest levels’ http://​w ww. worldbank.org/​en/​results/​2013/​04/​13/​oceans-​results-​profile. 47   The World Bank reports that: ‘Nitrogen fertilizer application has increased fivefold since 1960, but as much as 50 percent of the nitrogen applied is lost to the environment, depending on how well the application is managed. Much of this excess runs off into rivers and streams and eventually to the ocean, resulting in algal blooms that consume most of the oxygen in the water. This has adverse effects on marine life, leading to “dead zones” ’. There are now an estimated 405 ocean dead zones around the world, covering 246,000 square kilometers—​a n area larger than that of Great Britain’ http://​w ww.worldbank. org/​en/​results/​2013/​04/​13/​oceans-​results-​profile. 48   The World Bank reports that: ‘Ocean areas are experiencing some of the most rapid environmental change on the planet. An estimated 35 percent of mangrove area in countries with data on this aspect was either lost or converted between 1985 and 2005; and at least 20 percent of coral reefs have been destroyed globally in the last several decades, with another 20  percent having been degraded’. See http://​w ww. worldbank.org/​en/​results/​2013/​04/​13/​oceans-​results-​profile. 49   The World Bank reports that: ‘Over the coming decades and centuries, ocean health will become increasingly stressed by rising seawater temperature, ocean acidification, and ocean de-​oxygenation in ways that we are only beginning to understand. Coral bleaching, caused by rising ocean temperatures, is already affecting vast areas of tropical coral reefs, which harbor 25 percent of marine biodiversity’. See http://​w ww.worldbank.org/​en/​results/​2013/​04/​13/​oceans-​results-​profile.

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and development, at the national, subregional and global levels, approaches that are integrated in content and are precautionary and anticipatory in ambit . . ..

In 2002 the Report of the Meeting of the UN Informal Consultative Process on Oceans affirmed that ‘an integrated, interdisciplinary, inter-​zonal and ecosystem based approach to oceans management, consistent with the legal framework provided by UNCLOS and the goals of ­chapter 17 of Agenda 21, is not just desirable, it is essential’.50 Integral to the conservation and management of marine living resources and biodiversity is the need to appreciate the significance of marine ecosystems, the environment in which they exist in their entirety, and the services they provide. An ecosystem has been defined as ‘the sum total of marine organisms living in a particular sea area, the interactions between those organisms and the physical environment in which they interact. A vulnerable marine ecosystem could be defined as one that is ‘particularly susceptible to disruption, to damage or even to destruction due to its physical characteristics, the activities and interactions of the organisms therein and the impacts they suffer from human activities and the surrounding environment’.51 The need to consider the ecosystem in relation to the management of marine and coastal assets was defined by the Biodiversity Committee of the Convention for the Protection of the Marine Environment of the North-​East Atlantic (OSPAR Convention) as an ecosystem approach: The comprehensive integrated management of human activities based on the best available scientific knowledge about the ecosystem and its dynamics, in order to identify and take action on influences which are critical to the health of marine ecosystems, thereby achieving sustainable use of ecosystem goods and services and maintenance of the ecosystem integrity.52

15.3  The World Bank and Its Strategy towards Healthier Oceans 15.3.1 ‘Blue growth’: sustainable economic expansion The oceans represent the potential for ‘blue growth’—​sustainable economic expansion from its natural assets and ecosystem services. Between 2007 and 2013, World 50  United Nations, Report on the Work of the United Nations Open-​ended informal consultative process established by the General Assembly in its Resolution 54/​33 In Order to Facilitate the Annual Review by the Assembly of Developments in Ocean Affairs at Its Third Meeting, A/​57/​80, 2 July 2002, 4, para 4; this approach was also seen later in 2005, where UN General Assembly Resolution 60/​30 (56th plenary session) contained the preamble: ‘Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole through an integrated, interdisciplinary and intersectoral approach, and reaffirming the need to improve cooperation and coordination at national, regional and global levels, in accordance with the Convention, to support and supplement the efforts of each State in promoting the implementation and observance of the Convention, and the integrated management and sustainable development of the oceans and seas’. 51   United Nations, Report of the Secretary-​General, ‘Oceans and the Law of the Sea’ (n 21) para 172. 52   Meeting of the Biodiversity Committee, Dublin, 20–​24 January 2003, Summary Record BDC 2003, BDC 03/​10/​1-​E , Annex 13, 1.



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Bank investments have supported developing coastal and island countries to improve the health of their marine environments, thereby increasing the value of ecosystem services to both local and global economies. The focus of these investments sought to strengthen the client country institutions with respect to  (i) sustainable fisheries; (ii) establishing coastal and marine protected areas, (iii) waste management and infrastructure; and (iv) implementing integrated coastal and marine ecosystem management.53 As mentioned above, human activity has had an adverse impact on the ability of the ocean to provide its optimal benefits towards blue growth. Such activity takes place by means of the institutions which govern the way that ocean ecosystem services are facilitated. Consequently, the World Bank’s strategy towards helping to restore ocean health to an optimal is to support developing countries towards strengthening and reforming the institutions necessary to enhance benefits and services from the ocean ecosystem in a manner by which such benefits contribute to poverty reduction and shared prosperity.54 This in line with the goals identified above as part of the World Bank’s Mission. There are five guiding principles that serve this strategy: • Sustainable livelihoods, social equity and food security, emphasizing the importance of marine ecosystems in delivering essential goods and services that underpin millions of livelihoods, social equity, and food security. • Healthy ocean and sustainable use of marine and coastal resources, ensuring investments contribute to the maintenance, restoration, and enhancement of marine and coastal ecosystems, while recognizing that people are an essential part of the global ecosystem. • Effective governance systems, supporting innovative systems that provide incentives to private and public sector leaders at all levels to engage and support a healthy ocean and community well-​being. • Long-​term viability, making investments that are economically viable, socio-​ ecologically sustainable and promote positive, self-​sustaining outcomes, especially when transitional funding or other GPO assistance ends. • Capacity building and innovation, aiming to build on local knowledge and develop innovative solutions, human resource capacity, educational tools, and operating strategies, as well as new finance and policy vehicles.55 The World Bank Group’s active ‘blue growth’ portfolio is worth US$6.4 billion: US$1 billion in financing for sustainable fisheries and aquaculture and for efforts to conserve and enhance coastal habitats;56 US$5.4 billion for coastal infrastructure, that is, waste treatment, watershed management, and other activities that aid with reduction of coastal pollution.57 This assistance enables client countries to promote strong 53   ‘Oceans:  Sector Results Profile’ http://​w ww.worldbank.org/​en/​results/​2013/​04/​13/​oceans-​ results-​profile. 54 55  ibid.   World Bank, ‘Oceans: Sector Results Profile’ (n 17). 56   This is supported by the Global Programme on Fisheries (PROFISH). 57   World Bank, ‘Oceans: Sector Results Profile’ (n 17).

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governance of marine and coastal resources, as well as developing knowledge and capacity with regard to ocean health. In particular, the portfolio in relation to sustainable fisheries and aquaculture was supported by Global Programme on Fisheries (PROFISH), which seeks to improve the environmental, social, and economic sustainability of global fisheries and aquaculture.

15.3.2 Partners The World Bank Group has collaborated with the following collectives to increase blue growth by means of a healthier ocean:58 (i) PROFISH;59 (ii) the Alliance for Responsible Fisheries (ALLFISH);60 (iii) The Strategic Partnership for Fisheries in Africa (led by the African Union);61 (iv) Capturing Coral Reef and Related Ecosystem Services;62 (v) The Areas Beyond National Jurisdiction Programme (ABJN);63 (vi) 50in10.64

15.3.3 Output and projects The following reports have been produced by the World Bank Group:  (i) Trade in fishing services: emerging perspectives on foreign fishing arrangements (2014);65 (ii) Fish to 2030 (2013);66 (iii) Growing Aquaculture in Sustainable Ecosystems (2013);67 (iv) Evaluation of New Fishery Performance Indicators: a case study of the blue swimming crab fisheries in Indonesia and Philippines (2012);68 (v)  Hidden Harvest, the Global Contribution of Capture Fisheries; (vi) Indispensable Ocean: Aligning Ocean Health and Human Well-​Being (2012);69 (vii) The sunken billions:  the economic

  ibid.  ‘PROFISH’, http://​www.worldbank.org/​en/​topic/​environment/​brief/​global-​programme-​on-​fisheries​profish. 60   ALLFISH is a public–​private partnership by the seafood industry, which works with the International Coalition of Fisheries Associations, FAO, the Global Environment Facility, to promote responsible fisheries and aquaculture. 61  Project:  Strategic Partnership for Fisheries in Africa http://​projects.worldbank.org/​P104225/​ strategic-​partnership-​fisheries-​a frica?lang=en. 62   The Capturing Coral Reef and Related Ecosystem Services partnership aims to capture the value of coral reef ecosystem services through support for eco-​enterprises linked to green markets, and other incentives to encourage investment with regards to their protection. 63   http://​w ww.thegef.org/​topics/​areas-​beyond-​national-​jurisdiction. 64   50in10 is a collaboration initiated by over 30 organizations to achieve a 10-​year target to bring 50 per cent of fisheries and the global catch under sustainable management while increasing economic benefits by US$20 billion annually. 65   ht tp://​ d ocuments.worldba n k .org /​ c urated/​ e n/ ​ 5 0457146816 4949623/ ​ Trade- ​ i n- ​ f ishing​services-​emerging-​perspectives-​on-​foreign-​fishing-​arrangements. 66   ht t p:// ​do c u ment s .world b a n k .or g / ​c u r at e d / ​en / ​4 5 8 6314 6 8152 376 6 6 8/ ​Fi s h- ​to - ​2 03 0 ​prospects-​for-​fisheries-​a nd-​aquaculture. 67   http://​ d ocuments.worldbank.org/​ c urated/​ e n/​ 5 56181468331788600/​ G rowing-​ a quaculture-​ in-​sustainable-​ecosystems. 68   http://​documents.worldbank.org/​c urated/​en/​915781468336646778/​Evaluation-​of-​new-​Fishery-​ Performance-​I ndicators-​FPIs-​a-​c ase-​study-​of-​t he-​blue-​swimming-​crab-​fi sheries-​i n-​I ndonesia-​a nd-​ Philippines. 69   http://​ d ocuments.worldbank.org/​ c urated/​ e n/​ 515701468152718292/​ H idden-​ h ar vest-​ t he​global-​contribution-​of-​capture-​fisheries. 58 59



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justification for fisheries reform (2009).70 These reports broadly lend support to ocean-​ related lending activities, as well as providing knowledge for the relevant stakeholders. In addition to providing knowledge for the institutional support necessary to promote blue growth, the World Bank has engaged with several client countries on various projects to improving their ocean asset management by financial support from the IBRD, IDA, or through trust funds managed by the World Bank. Examples include the following projects.

(a) Coastal and Biodiversity Management Project in Guinea-​Bissau (present status, closed) The project aims to build the capacity Government agencies and natural resource users in Guinea-​Bissau to collaboratively manage coastal environments and biodiversity for both conservation and sustainable development ends.71

The World Bank helped Guinea-​Bissau to establish a national parks and protected areas agency and network, protecting 480,000 hectares of the country’s coastal zone (over 13 per cent of the national territory) along with local communities. Based on the World Bank/​World Wildlife Fund protected areas tracking tool, it has been found that in four of the five established protected areas, the effectiveness of park management increased by at least 15 per cent from 2005 to 2010.72

(b) West Africa Regional Fisheries Programme (present status, closed) The [Programme] is designed as an initiation phase that establishes the foundation for sustainable fisheries management in West Africa in order to increase the overall wealth generated by the exploitation of the marine fisheries resources of West Africa, and the proportion of that wealth captured by West Africa.73

This programme stretched across Cabo Verde, Ghana, Guinea, Guinea Bissau, Liberia, Mauritania, Senegal, and Sierra Leone, with the objective to strengthen fisheries governance and reduce illegal fishing; thereby increasing the economic contribution of marine resources. Examples of positive outcomes from this programme include: Liberia, where in December 2010, the government passed comprehensive fisheries regulations and inaugurated the fish fisheries monitoring center, reducing the incidence of illegal fishing by 83 per cent, while fishing communities report higher catches; the Government in Sierra Leone, through programme finance with partners such as the Government of the Isle of Man, the Environmental Justice Foundation, and New Partnership for Africa’s Development, has combated illegal fishing by 70   http://​ d ocuments.worldbank.org/​ c urated/​ e n/​ 6 56021468176334381/​ T he-​ s unken-​ b illions​t he-​economic-​justification-​for-​fisheries-​reform. 71  Coastal and Biodiversity Management Project http://​projects.worldbank.org/​P049513/​coastal​biodiversity-​management-​project?lang=en. 72   http://​w ww.worldbank.org/​en/​results/​2013/​04/​13/​oceans-​results-​profile. 73   Western Africa—​West Africa Regional Fisheries Programme: P106063: Implementation Status Results Report: Sequence 11 (English) 2 http://​documents.worldbank.org/​curated/​en/​268211468204547808/​pdf/​ ISR-​Disclosable-​P106063- ​05-​18-​2016-​1463589145815.pdf.

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bringing over fourteen industrial vessels to port for illegal fishing (collecting more than US$1.5 million in fines), thereby increasing public revenues from the fisheries sector from US$0.9 million in 2008 to US$3.8 million in 2013. In June 2015, Senegal enacted a new Fisheries Code for a sensible and sustainable utilization of fisheries resources, including community-​led fisheries management. Since then, twelve fishing communities have been formally recognized, reporting an increase of reports up to 133 per cent.74

(c) Integrated Coastal Zone Management—​India (present status, active) The objective of the Integrated Coastal Zone Management Project is to assist GoI in building national capacity for implementation of comprehensive coastal management approach in the country, and piloting the integrated coastal zone management approach in states of Gujarat, Orissa and West Bengal.75

The World Bank, inter alia, finances national and state-​level capacity building, long-​ term land use planning, and pilot investments in pollution management, resource conservation, and livelihood improvements.76 The programme also includes detailed coastal and marine resource mapping, along with extensive studies on prominent protected species.77 Recent statistics suggest that 1.5 million people have benefited from the programme (nearly half are women), there has been restoration of more than 12,000 hectares of mangroves,78 while over 400 kilometres of coastline has been protected, and more than 80 million litres of untreated sewage into the ocean per day has been stopped.79

(d) First South West Indian Ocean Fisheries Governance and Shared Growth Project (status, present active) The objective of the First South West Indian Ocean Fisheries Governance and Shared Growth Project for the Africa region (SWIOFish) is to improve the management effectiveness of selected priority fisheries at the regional, national and community level. The project is designed to contribute to the World Bank Group’s corporate goals of ending extreme poverty and promoting shared prosperity in a sustainable fashion. It recognizes the importance of fisheries as a key contributor to food security and nutrition, safety net, and job creation for rural coastal populations of the SWIO, which are among the poorest and most vulnerable.80

  http://​w ww.worldbank.org/​en/​results/​2013/​04/​13/​oceans-​results-​profile.   http://​projects.worldbank.org/​P097985/​integrated-​coastal-​zone-​management?lang=en. 76   http://​w ww.worldbank.org/​en/​results/​2013/​04/​13/​oceans-​results-​profile. 77   http://​w ww.worldbank.org/​en/​results/​2013/​04/​13/​oceans-​results-​profile. 78  See also ‘Protecting India’s Coastline’ http://​w ww.worldbank.org/​en/​news/​feature/​2012/​10/​11/​ protecting-​indias-​coastline-​odisha. 79   http://​beta.worldbank.org/​en/​topic/​environment/​brief/​oceans. 80   http://​projects.worldbank.org/​P132123/​s outh-​west-​indian-​o cean-​f isheries-​governance-​shared-​ growth?lang=en; see also http://​www.worldbank.org/​en/​news/​feature/​2016/​06/​14/​fishing-​communities-​ in-​the-​comoros-​develop-​fishing-​management-​projects; http://​www.worldbank.org/​en/​news/ ​feature/​ 2015/ ​ 0 9/ ​ 1 5/ ​ s eaweed-​ a nd-​ b last-​ f ishing-​ b an-​ h elp-​ p rotect- ​ t anzanias- ​ f isheries- ​ a nd- ​ m ariculture; http://​www.worldbank.org/​en/​news/​press-​release/​2015/​02/​27/​world-​bank-​boosts-​fisheries-​in-​south-​west-​ indian-​ocean-​african-​countries. 74

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The countries that benefit from this programme are:  Comoros,81 Madagascar, Mauritius, Seychelles, Somalia, Kenya, Tanzania, Mozambique, South Africa, Yemen, and Maldives.82 The IDA has financed US$75.5 million, in addition to co-​financing trust funds from Global Environment Facility (GEF), the project supports regional coordination and cooperation to improve the management and sustainable development of fisheries in the South Western Indian Ocean.83

(e) Ocean Partnerships for Sustainable Fisheries and Biodiversity Conservation Project (present status, active) The development objective of the Ocean Partnerships for Sustainable Fisheries and Biodiversity Conservation: Models for Innovation and Reform Project for World is to catalyze pilot investment into selected transformational public-​private partnerships that mainstream the sustainable management of highly migratory fish stocks spanning areas within and beyond national jurisdiction.84

In addition to the aim of management of highly migratory fish stocks, the effort is also committed towards biodiversity restoration and cooperative management of waters beyond national jurisdiction, that is, the high seas. The World Bank Group, along with its partner, GEF, financed US$10 million to this project, which will be allocated in four marine regions: Western Atlantic and Caribbean, Bay of Bengal, Western and Central Pacific, and Eastern Pacific.85 This project builds upon other ongoing projects, such as the Pacific Regional Oceanscape Project.86

(f) West Africa Coastal Areas Management Programme (present status, active) The programme provides technical assistance to determine the factors that threaten people, ecosystems, and economic assets along the coast. It also offers multi-​sectoral solutions such as land management and spatial planning, infrastructure, natural habitat management, and pollution management.87

  http://​w ww.worldbank.org/​en/​news/​feature/​2 016/​0 6/​14/​f ishing-​c ommunities-​i n-​t he-​c omoros-​ develop-​fishing-​management-​projects. 82   Three countries in the region—Comoros, Mozambique, and Tanzania—have already taken steps to develop strategies and institutions to improve fisheries management and marine health through other World Bank projects. To leverage these previous investments Comoros will receive US$13 million, Mozambique will receive US$37 million, and Tanzania will receive US$36 million to strengthen countrywide institutions and activities, improve fishers’ livelihoods, expand the regional business climate, and increase private sector investment in the fishing industry; see http://​w ww.worldbank.org/​en/​news/​ press-​release/​2015/​02/​27/​world-​bank-​boosts-​fisheries-​in-​south-​west-​indian-​ocean-​a frican-​countries. 83   ht t p://​ w w w.worldba n k .org /​ e n /​ n ews/​ p ress-​ r elea se/​ 2 015/​ 0 2/​ 2 7/​ w orld-​ b a n k-​ b oost s​fisheries-​in-​south-​west-​indian-​ocean-​a frican-​countries. 84   http://​projects.worldbank.org/​P128437?lang=en. 85   http://​ w w w.worldbank.org/​ e n/​ n ews/​ p ress-​ r elease/ ​ 2 014/ ​ 0 9/ ​ 2 4/ ​ t he- ​ w orld- ​ b ank- ​ a nd- ​ g ef​partner-​to-​restore-​migratory-​fisheries. 86   http://​ w w w.worldbank.org/​ e n/​ n ews/​ p ress-​ r elease/​ 2 014/​ 0 9/​ 2 4/​ t he-​ w orld-​ b ank-and-​ g ef-​ partner-​to-​restore-​migratory-​fisheries. 87   http://​w ww.worldbank.org/​en/​topic/​environment/​brief/​west-​a frica-​coastal-​areas. 81

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In response to demand from Benin, Côte d’Ivoire, Ghana, Mauritania, and Togo to manage coastal erosion and flooding, promote climate-​resilient coastal management, and improve livelihoods in West Africa’s coastal communities, the World Bank established this programme in 2015.88

(g) Coral Reef Rehabilitation and Management Programme—​Coral Triangle initiative (present status, Active) The objective of the Coral Reef Rehabilitation and Management Program:  Coral Triangle Initiative (COREMAP-​CTI) Project for Indonesia is to institutionalize the COREMAP approach of a viable, decentralized and integrated framework for sustainable management of coral reef resources, associated eco-​systems and bio-​diversity for the welfare of the communities in seven selected districts of five provinces in the country.89

This programme represents a fifteen-​year partnership between the Government of Indonesia, the World Bank, and the GEF. A total of 210 village communities in select districts in five provinces will participate in COREMAP-​CTI: Sikka in East Nusa; Selayar and Pangkep in South Sulawesi; Buton and Wakatobi in South-​east Sulawesi; Raja Ampat in West Papau; and Biak in Papau.90 The programme also supports thirteen Marine Conservation Areas, which cover approximately 5.7 million hectares, in addition to two fisheries management zones. COREMAP-​CTI is the principal mechanism that assists the Government of Indonesia to fulfil its pledge to set aside 20 million hectares of marine space for marine conservation area management by 2020: so far, 14 million hectares have been demarcated and 5.5 million hectares have been brought under management plans.91 It has been reported that some of the achievements include: • supporting the establishment of ‘marine protected areas’ in six districts; • significant improvements of live coral reef coverage in project-​managed areas; • the reduction by 60 per cent of illegal/​destructive fishing practices, from 2,200 infringements in 2005, to 880 infringements in 2010. Some 70 per cent of cases have been successfully prosecuted; • helping to increase communities’ income in COREMAP areas by 21 per cent since 2008; • the establishment of coral reef management agencies and plans in 358 villages; • training of teachers in 92 per cent of schools, with the curriculum translated into nearly all the local languages.92   http://​w ww.worldbank.org/​en/​topic/​environment/​brief/​west-​a frica-​coastal-​areas.   http://​projects.worldbank.org/​P127813/​c oral-​reef-​rehabilitation-​m anagement-​program-​phase-​ iii?lang=en. 90   http:// ​ w w w.worldbank.org/​ e n/​ n ews/​ p ress-​ r elease/​ 2 014/​ 0 2/​ 2 1/​ w orld-​ b ank-​ i ndonesia-​ coral-​reefs-​coastal-​communities. 91   http:// ​ w w w.worldbank.org/​ e n/​ n ews/​ p ress-​ r elease/​ 2 014/​ 0 2/​ 2 1/​ w orld-​ b ank-​ i ndonesia​coral-​reefs-​coastal-​communities. 92   http://​w ww.worldbank.org/​en/​news/​feature/​2014/​0 6/​05/​it-​t akes-​v illages-​to-​conserve-​i ndonesia-​ precious-​coral-​reefs. 88

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15.3.4 General assessment As can be seen in the section above, the World Bank plays a substantial role in oceans governance by its investments in a variety of projects which encompass a broad scope of human activity driven towards better marine and coastal assets and ecosystem services, and developing the necessary infrastructure to facilitate blue growth. On a general level, such activities include, inter alia, the promotion of sustainable fisheries, the establishment of marine protected areas, integrated coastal zone management, pollution reduction, and water resource management. It can also be inferred that the various programmes undertaken by the World Bank in relation to oceans governance adopt an ecosystem approach and a goal towards sustainable development, blue growth, and prosperity. Of particular significance are the projects that focus upon the conservation of marine biological diversity both within national jurisdiction and in spaces beyond national jurisdiction, and the establishment of marine protected areas (Coastal and Biodiversity Management Project in Guinea-​Bissau; Ocean Partnerships for Sustainable Fisheries and Biodiversity Conservation Project). In relation to conservation of marine biological diversity in national jurisdiction, Article 194(5) of UNCLOS provides a general obligation to include measures ‘necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’. Thus, Guinea-​Bissau and Indonesia are able to comply with their obligations pursuant to UNCLOS through the assistance of the World Bank and partnerships. As UNCLOS is silent with respect to conservation of marine biodiversity in areas beyond national jurisdiction, the Ocean Partnership for Sustainable Fisheries can be appreciated in the light of Article 64 of UNCLOS with regard to the need for cooperation with respect to highly migratory species. Nevertheless, its role in the conservation of marine biodiversity in areas beyond national jurisdiction make an important case study. Another aspect which is of great significance is the promotion of human rights and dignity through providing and promoting food security and job security, especially to rural fishing villages and communities which rely heavily on fishing and reef-​based tourism. For example, through the First South West Indian Ocean Fisheries Governance and Shared Growth Project and other collaborations, fishing communities in the Comoros develop fishing management projects, which provide jobs for women to dry the fish caught by men, thereby promoting gender equality.93 Furthermore, these fishing management projects allow the communities in Comoros to carry out subsistence agriculture, and allow access to the decision-​making process of which activities are implemented at their level. Additionally, the promotion of food security through the blue programmes are consistent with the Mission of the World Bank to reduce global poverty and share prosperity. In general, the World Bank, through its blue programmes, provides the financial assistance to provide knowledge, skills, expertise, which is necessary to reform, build, 93   http://​w ww.worldbank.org/​en/​news/​feature/​2 016/​0 6/​14/​f ishing- ​c ommunities-​i n-​t he- ​c omoros-​ develop-​fishing-​management-​projects.

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and strengthen the infrastructure for better marine resources and coastal resources management. The World Bank appears to contribute towards oceans governance on national, sub-​regional, and regional levels. This is consistent with the rather normative ‘integrated’ or ‘holistic approach’ to oceans governance,94 as well as the more positivist rules relating to international cooperation with regards to the protection of marine environment (Article 197 UNCLOS), the conservation of living resources (Articles 61, 118, and 119 UNCLOS), ​and highly migratory species (Article 64 UNCLOS). Perhaps this could be indicative of the dual approach towards oceans governance, which adheres to both the zonal approach and the ‘integrated’ or ‘holistic’ approach.95

15.4 Conclusion The World Bank, through its blue projects, plays a substantial role in oceans governance on national, sub-​regional, and regional levels. Bearing in mind its mission of ending extreme poverty and promoting shared prosperity, its contribution to oceans governance is predicated upon the promotion of blue growth of developing countries. The World Bank, together with its partnerships, provide financial assistance to developing states to bring their oceans to better health in a sustainable manner. This allows coastal communities and states to improve their economies as optimal levels of marine resources and ecosystem services provide both food security and job security. Yet, the benefits of optimal levels of marine resources also extend towards the international community as a whole, as overfishing and depletion of fish stocks, marine pollution, and climate change have adverse ramifications on the ecosystem in the ocean in its entire structure and function, as well as marine biodiversity. Thus, the World Bank’s efforts to promote healthier oceans through its various blue projects also serve the international community as a whole, in addition to developing countries.

 Tanaka, A Dual Approach to Ocean Governance (n 4) 16–​21.

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 ibid 25.

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16 Ethics of International Maritime Law and Ocean Governance Marko Pavliha

16.1 Introduction Sir Arthur C Clarke was a British science fiction writer, scientist, futurist, inventor, undersea explorer, and television series host who is also famous for his legendary quotes, for instance about our planet:  ‘How inappropriate to call this planet Earth when it is quite clearly Ocean’. Our planet is double blue—​not only in colour but also for its state of boiling sadness. Human beings are supposed to cherish humanity and love for nature, but the truth is terribly different. There are unimaginable apocalyptic forms of violence, wars, terrorism, dishonesty, discrimination, greed, hunger, thirst, pollution, climate deterioration, migrations, and other man-​made inventions of decay, raising a fatal question of whether we are about to destroy the civilization, this time not only partially but globally.1 Hopefully not; however, it does not look promising. It is therefore urgent to start educating our hearts, not only our minds. Ethics, together with the rule of law on an international, regional, national, and municipal level, planetary and locally, shall dominate the third millennium rather than technical development or scientific inventions, which should serve all sentient beings and not the other way around. Such an approach must also positively affect maritime trade2 and ocean governance, and sooner or later the new human settlements on Mars and possibly on other planets. It is time to start thinking universally, not only globally. As Blackburn put it vividly, we ‘have all learned to become sensitive to the physical environment’, however, ‘fewer of us are sensitive to what we might call the moral or ethical environment’, which gives us ‘our standards of behaviour’.3 He correctly suggests that the core of ethics is universal as every society ‘that is recognizably human’ will need some institution of property, the norms governing truth-​telling and promise-​giving, the standards restraining violence and killing, the devices for regulating sexual expression and some sense of what is appropriate by way of treating strangers, minorities, children, the aged, and the handicapped.4

1   This chapter is a substantially adapted and upgraded version of the following article: Marko Pavliha, ‘Essay on Ethics in International Maritime Law’ (2012) 5 European Transport Law 461. 2   See eg Francis Fernandes, ‘Ethics in Maritime Trade’ (2016) 2 European Transport Law 131. 3   Simon Blackburn, Ethics: A Very Short Introduction (Oxford University Press 2001) 1. 4  ibid 20.

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The words ethics and morality may be used interchangeably. To put it less philosophically and more understandably, it is a (wo)man’s intimate, inner understanding of good or bad, the moral beliefs and rules about right and wrong, manifested by external positive or negative behaviour towards all living creatures and even more, regarding the whole surrounding world and universe. Ethics does not depend (solely) on religion and it is not relative to the society in which one lives nor it is merely a matter of subjective taste or opinion; rather it ‘points towards the course of action that has the best consequences, on balance, for all affected’ (the so-​called preference utilitarianism).5 Both ethics and morality are spiritus agens of the global ethic (Weltethos, Ethique planétaire) which is primarily practical; it is a ‘golden’ moral compass directing our thinking and behaviour. In this light we should remember the unforgettable Mahatma Gandhi, who summarized his eternal wisdom in the following words: Your beliefs become your thoughts, your thoughts become your words, your words become your actions, your actions become your habits, your habits become your values, your values become your destiny.6

Legal practitioners and especially law professors are by far the most responsible actors in the process of cherishing and teaching ethical values. Legal education should become much more holistic, integrated, and interdisciplinary, less aggressive and rather richer with principles of natural law and ethics, including compassion, altruism, solidarity, pacifism, honesty, justice, intercultural dialogue, and unconditional respect of all human rights. We must walk our positive talks and teach others to do the same, instead of hurting each other in the name of money and success. The global ethic has been developed as a project and spread around the world by Hans Küng and his numerous deeds, actions, and publications.7 Drawing on many of the world’s religious and spiritual traditions, Küng’s Declaration Toward a Global Ethic identifies four affirmations being the shared principles essential to the global ethic and all people, religious and atheists, namely (i) commitment to a culture of non-​violence and respect for life, (ii) solidarity and just economic order, (iii) tolerance and a life of truthfulness, and (iv) equal rights and partnership between men and women.8 To describe it differently, a person should treat others as he would like to be treated by them (positive form of the so-​called Golden Rule), or one must not treat others in ways that she would not like to be treated (negative or prohibitive form). The Golden Rule was probably invented by Pitakos or Confucius hundreds of years before Christ   Peter Singer, Practical Ethics (3rd edn, Cambridge University Press 2001) 1–​15.   I do not know the exact source of this quotation which is explained in detail in Mohandas Karamchand Gandhi, An Autobiography or the Story of My Experiment with Truth (Penguin Books 2007). 7   Hans Küng, Handbuch Weltethos: eine Vision und ihre Umsetzung (Piper 2012) http://​w ww.weltethos. org (last accessed February 2018). See also Bradley Shingleton and Eberhard Stilz (eds), The Global Ethic and Law: Intersections and Interactions (Nomos Verlagsgesellschaft 2015). 8   Declaration was signed at the Parliament of the World’s Religions gathering in 1993 by more than 200 leaders from about forty different faith traditions and spiritual communities. Since 1993 it has been signed by thousands more leaders and individuals around the world. As such, it established a common ground for people of faith to agree and to cooperate for the good of all. 5 6



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and is still crucial for the modern concept of human rights, in which each individual has a right to just treatment and a reciprocal responsibility to ensure justice for others. Any person attempting to live by this rule should treat all people with consideration, not just members of his or her in-​group. The Golden Rule has its roots in a wide range of world cultures, and it is a standard different cultures use to resolve conflicts. It can be found in some form in almost every ethical tradition, for example in the ancient Roman law emphasized by Ulpianus in the famous maxim: ‘The following are the precepts of the law: to live honestly, not to injure another, and to give to each one that which belongs to him’.9 Having explained the gist of ethics we should now turn to the law and its relationship with morality. Their interconnection is often explained by two overlapping circles (probably for the first time by German philosopher Immanuel Kant), that is, M (morality) and L (law) where the crossed oval part (M + L) represents illegal acts and omissions which are at the same time also immoral. In simple words, whatever is against the law is also morally and ethically condemned. The remaining part of the right circle (L) symbolizes illegal behaviour which is not considered immoral (eg fishing for survival without a license) and the remaining side of the left circle (M) shows the immoral acts which are not against the law (for instance, screaming loud in a church, promiscuity etc) (see Figure 16.1).

M

M+L

L

Figure 16.1  Actual Relation between Morality and Law.

The ideal relation between morality and law can be pictured by two concentric circles where the smaller one (L) represents illegal and immoral behaviour (L + M) whereas the outside area of the larger circle (M) symbolizes any human acts or omissions which are immoral but not banned or otherwise governed by the law (see Figure 16.2). M L+M

Figure 16.2  Ideal Relation between Morality and Law.

The purpose of this chapter is to cast light upon certain issues of the morality in order to initiate a thorough research on the role of ethics and global ethic in a very   Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere. Ulp. D. 1, 1, 10, 1.

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specific legal field(s) of international maritime law and ocean governance, offering perhaps one of the first steps towards a new paradigm. It deals, first, with the general ethical flavour of international law, underlining a few examples of moral standards in the law of the sea and maritime law. Secondly, it considers a few susceptible issues of ocean governance and, finally, it suggests how to improve legal education with an obligatory course on legal ethics.10 It is submitted that the expression ‘international maritime law’ should be understood broadly as inspired by the International Maritime Organization’s International Maritime Law Institute (IMO IMLI),11 thus including the law of the sea as part of public international law, as well as the maritime law, also known as shipping, admiralty, or marine law. The first entails themes such as the status of internal waters, the territorial sea, the legal regime of straits, the continental shelf, the exclusive economic zone, the delimitation of maritime boundaries, the high seas, the international sea bed area, the marine scientific research and the protection of marine environment,12 and the second includes topics such as contracts of carriage of goods and passengers, towage, collision, limitation of shipowners’ liability, salvage, general average, and marine insurance.13 Both legal fields are interconnected and demand a holistic approach which is a precondition to form a solid backbone of the sustainable ocean governance.

16.2  Ethical Flavour of International Law It is well known that international law receives its legal substance from the following sources: (i) general or particular international conventions, establishing rules expressly recognized by the participating states; (ii) international customs, as evidence of a general practice accepted as law; (iii) the general principles of law recognized by civilized nations; and (iv) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.14 What is often neglected, however, is that the implementation and upgrading of international law should be constantly refreshed by the elementary, universal ethical rules which reach beyond any boundaries of countries, cultures, legal orders or religions. Mary Ellen O’Connell asserts that the highest ethical norms of international law are mandatory and imperative at all times, such as the prohibitions on aggression, 10   It is implied that the readers are familiar at least with the basic historical and philosophical elements of ethics, from Confucius to Peter Singer, Michael Sandel and many other scholars. An excellent starting point is The New Encyclopedia Britannica, vol 18, Macropædia (Encyclopaedia Britannica, Inc 1990) 492–​521 (Ethics). 11   http://​w ww.imli.org (last accessed July 2017). 12   Short and popular introduction to the modern law of the sea has been written by R R Churchill and A V Lowe, The Law of the Sea (3rd edn, Manchester University Press 1999). 13   See eg William Tetley, International Maritime and Admiralty Law (Éditions Yvon Blais 2002). 14  Statute of the International Court of Justice, art 38 http://​w ww.icj-​cij.org/​documents/​index. php?p1=4&p2=2&p3=0 (last accessed July 2017).



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genocide, slavery, arbitrary killing, apartheid, torture, and massive pollution of the environment.15 Jus cogens operates like public policy in national law, invalidating international or national laws that directly conflict with its norms. The 1969 Vienna Convention on the Law of Treaties makes it clear that a treaty is void if, ‘at the time of its conclusion, it conflicts with a peremptory norm of general international law’ which is ‘a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.16 The identification of jus cogens is predominantly a matter for courts and judges.17 Another notable author researching the general problems of jus cogens, its nature, place, and function in the international order is Ernest Petrič, a long-​standing and distinguished member of the International Law Commission. He is of the opinion that a norm to be a jus cogens should acquire general ‘consent’, which should reach beyond the consent of one state, and the rule should protect an important value at our stage of development of human society.18 For a better understanding of the ethical core of international law it is perhaps helpful to imagine a practical case where an international community represented by the IMO strives to adopt a new anti-​piracy treaty because the existing national and global rules do not suffice anymore. The Legal Committee would probably send out questionnaires to various stakeholders in order to identify problems to be governed at the international level, such as types, locations, and frequencies of attacks by pirates; safety of ships and crews; economic consequences of piracy; court jurisdiction and procedures; the real reasons for maritime crimes (poverty, survival, terrorism); insurance implications, etc. Any potential international convention would need to deal with preventive and repressive measures which will likely diminish piracy but not entirely eliminate it. A checklist linking ethics to ex ante evaluations19 would have to be prepared, incorporating the following crucial questions: What is the real problem or the challenge? What are the choice options and respective pros and cons? Is it ethical for the rest of the world to tolerate for so many years a transitional government in Somalia (or similar problems elsewhere), which is socially blind and self-​sufficient, turning its deaf ears to dying people who can survive only by stealing and robbing? What would be the ethical purpose of the international treaty in question? Which rules should be mandatory because of their ethical

15   Mary Ellen O’Connell, ‘International Law’s Higher Ethical Norms’ in Donald Earl Childress III (ed), The Role of Ethics in International Law (Cambridge University Press 2012) 78–​98. 16   Vienna Convention on the Law of Treaties, art 53. 17   See the case law cited in O’Connell (n 15), eg Barcelona Traction, Light & Power Co. (Belg. v Spain) [1970] ICJ 3 (5 February ) and Prosecutor v Furundzija, Case No IT-​95-​17/​1-​T, Trial Judgment, para 155 (Int’l Crim. Trib. for the Former Yugoslavia, 10 December 1988). 18  See Ernest Petrič, Principles of the Charter of the United Nations—​Jus Cogens? (2016) 7 Czech Yearbook of Public & Private International Law 3 https://​rozkotova.cld.bz/​r ww/​CYIL-​vol-​7-​20161/​32 (last accessed July 2017). 19   Cf Bert van Wee, Transport and Ethics: Ethics and the Evaluation of Transport Policies and Projects (Edward Elgar Publishing 2011).

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importance? What would be the ethical motives of the states and their representatives to abide by such a convention? Alford and Tierney have developed the moral reasoning theory of international law, suggesting that states and their representatives employ different types of moral reasoning to resolve ethical dilemmas, so the law and psychology perspective of compliance with international law presents an opportunity to understand a state actor’s reasoning in complying with international rules.20 They draw on the writings of Lawrence Kohlberg21 to explore the cognitive process of choosing between different interests, values, norms, and claims. According to Kohlberg, first, ‘the preconventional reasoning’ involves egocentrism without concern of social norms. The law is obeyed to avoid punishment and to maximize self-​interest. Secondly, ‘the conventional reasoning’ focuses on the individual as a member of society. The compliance motive is reputational, to be a good, law abiding citizen, and it is also based on the desire to maintain the overall functioning of social relationships and institutions. Thirdly, ‘the postconventional reasoning’ is based on the vision of how society should be structured, what rational people think an ideal, fair, and just society would require. It involves the human rights and social welfare morality arising from a social contract.22 Ratification and compliance with the anti-​ piracy treaty might therefore help avoiding sanctions from other countries, provide long-​term benefits outweighing the short-term costs, and improve the reputation of the ratifying and abiding state in the eyes of other nations. Furthermore, it would uphold a process of regulating the global issues by international law, conform with existing social contracts moving towards an ideal universal order and support the highest moral principles such as the right to life and safe and free navigation.23 The above logical approach, however, calls for experts, politicians, and other decision-​makers with the highest moral values who are desperately missed and needed in the real world. Morality should play an important role in everybody’s life literally from birth to death, from the cradle to the coffin, involving parents, kindergartens, schools, universities, civil society, the media (especially the internet), commercial companies, and public authorities. The law faculties should contribute much more in this regard.

16.3  Law of the Sea On 10 December 1982, the United Nations Convention on the Law of the Sea (UNCLOS) was opened for signature at Montego Bay, Jamaica, marking the culmination of over fourteen years of hard work. More than 150 countries participated, representing all regions and legal and political systems of the world. The codification and progressive development of the law of the sea was finally achieved in the highest 20   Roger P Alford and James Fallows Tierney, ‘Moral Reasoning in International Law’ in Donald Earl Childress III (ed), The Role of Ethics in International Law (Cambridge University Press 2012) 11–​51. 21   Lawrence Kohlberg, Essays on Moral Development, vol 2 (Harper & Row 1984). 22 23   Alford and Tierney (n 20) 25–​29.  ibid 37.



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ethical spirit, hoping that a new legal order for the seas and oceans would contribute to the strengthening of peace, security, cooperation, and friendly relations among all nations in conformity with the principles of justice and equal rights. The Convention is supposed to facilitate international communication and promote the peaceful uses of the seas and oceans; the equitable and efficient utilization of their resources; the conservation of fauna and flora; and the study, protection, and preservation of the marine environment. In addition, this ‘ocean bible’—​now binding 168 states as of 23 May 201724—​shall promote the economic and social advancement of all peoples of the world in order to realize a just and equitable international economic order, taking into account the mankind as a whole and, in particular, the special interests and needs of developing coastal and land-​locked countries.25 Legal text of the Convention is woven by many ethical standards as a compromise between the two historic doctrines of mare liberum and mare clausum, including the maximum customary breadth of the territorial sea and other maritime zones; the right of innocent passage by third parties; the rights of access to and from the sea and freedom of transit of land-​locked countries; the freedoms of the high seas; the principle of common heritage of mankind applying to the seabed, ocean floor, and the subsoil thereof beyond the limits of national jurisdiction; the obligation to protect and preserve the marine environment; and the obligation to settle disputes by peaceful means. The key ethical rule is embodied in the binding promise of state parties to UNCLOS to fulfil in good faith all the obligations under the Convention and to exercise the rights, jurisdiction, and freedoms in a manner which would not constitute an abuse of right.26 In other words, the states should exercise their rights and jurisdictions recognized by UNCLOS in such a manner as not to unnecessarily or arbitrarily harm the rights of other countries or the interests of the international community as a whole. The provision was proposed by Mexico as a new introductory article at the very beginning of the Convention, but it was later moved to the end under the heading ‘General Provisions’.27 Reference to ‘good faith’ reflects the UN Charter which obliges all members of the United Nations that ‘in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter’.28 It also follows from the Vienna Convention on the Law of Treaties that every international convention in force is binding on the parties to it (pacta sunt servanda) and must be performed by them in good faith.29 The concept of ‘abuse of rights’ can be explained as the exercise by a state of a particular right in such a manner or in such circumstances as indicated that it was for that state an indirect means of avoiding an international obligation imposed upon that

24   http://​w ww.un.org/​depts/​los/​reference_​fi les/​chronological_​lists_​of_​ratifications.htm (last accessed July 2017). 25   The Law of the Sea, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, New York, 1997 (see Introduction and Preamble). 26   UNCLOS, art 300. 27   Myron H Nordquist (ed), United Nations Convention on the Law of the Sea 1982: A Commentary, vol V (Martinus Nijhoff Publishers 2002) 150–​52. 28 29   UN Charter, art 2(2).   Vienna Convention on the Law of Treaties, art 26.

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state, or was carried out with a wrong, illegitimate purpose (in fraudem legis agere). The concept is accepted in international law, although there is little relevant state practice or case law.30 It is not too difficult to notice the beam of the Golden Rule in the ancient behavioural norm of compassion and diligence that the countries ‘shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment’—​sic utere tuo ut alienum non laedas.31 It is possible to argue that the modern doctrine of sustainable development and environment protection means considerably more than a mere sum of preventive, curative, and repressive measures; it also involves a duty of states to cooperate32 and improve33 the quality of the environment. In case of a dispute where the parties agree so, the court or tribunal decides a case ex aequo et bono, according to what is right and good, giving the judges or arbitrators enormous potential to think ethically and creatively.34 Similarly, a fresh ethical and legal standard had been created by The Common Heritage of Mankind Doctrine which had taken place in two major international agreements:  the 1979 Agreement Governing the Activities of States on the Moon and other Celestial Bodies, providing that the moon and its natural resources are the common heritage of mankind and that an international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible; and the UNCLOS of 1982, which declares certain areas of the oceans and their resources to be the common heritage of mankind. Namely, in 1967 the legendary Maltese Ambassador Arvid Pardo had proposed to the UN General Assembly that the seabed should constitute part of the ‘common heritage of mankind’, a phrase appearing now in Article 136 of the UNCLOS. Pardo’s visionary achievement can be compared to Professor David J Attard’s proposal in 1988 to the Government of Malta to request the UN to take action to protect the global climate.35 He was struck by the scientific work that had been carried out on climate change as there was already the evidence on anthropogenic (caused by human beings) climate change; however, international law was incapable of dealing with ecological threats to the planet. As the role of international law, in his strong belief, is to regulate international life and protect humankind, not only against armed conflict and aggression, but also against growing environmental threats, he reacted

30   Nordquist (n 27) 152; Certain German Interests in Polish Upper Silesia (Germany v Poland), PCIJ, Ser. A, No 7, at 30 (1926); Free Zones case (France/​Switzerland), PCIJ, Ser A/​B, No 46, at 167 (1932); the Nuclear Tests cases (interim protection) (Australia v France; New Zealand v France) [1973] ICJ Reports 99, 118. 31   UNCLOS, art 194(2). 32   For instance, as to the importance of cooperation of the Adriatic states and the role of the Barcelona Convention with its Protocols see Mitja Grbec, Extension of Coastal State Jurisdiction in Enclosed or Semi-​enclosed Seas: An Adriatic Sea Perspective (Doctoral Thesis (IMO IMLI: 2010)) 223–​68. 33 34   Treaty on European Union, art 3(3).   UNCLOS, art 293 (2). 35   Professor Attard has been Director of IMO IMLI for many years and he is also a judge at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg.



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proactively and his proposal led to the 1992 UN Convention on the Protection of Global Climate.36 By far the most important ethical, political, and legal purpose of the UN is to maintain international peace and security, and to that end it is: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of just­ ice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.37

Moreover, the UN must do everything possible to develop ‘friendly relations among nations based on respect for the principle of equal rights and self-​determination of peoples, and to take other appropriate measures to strengthen universal peace’, as well as to ‘achieve international co-​operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.38 Pacific settlement of disputes shall be therefore treated preciously as the mother and the father of all ethical and international legal rules. The parties to any dispute, ‘the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’.39 When it deems necessary, the Security Council shall call upon the parties to settle their dispute by such means.40 Obligation to settle disputes by peaceful means is also provided by UNCLOS41 and is found in most ‘private’ international maritime law conventions. This is especially significant if not fatal in light of the dangerous tension between China and Japan regarding the uninhabited Senkaku (Diaoyu) Islands in the East China Sea, because of the potential oil reserves. Similarly, the Paracel Island in the South China Sea are disputed by China, Vietnam, and Taiwan and the Spratly Islands by Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam. If we consider these problems in light of the scary fact that there are presently sixty-​seven countries and 763 militias-​ guerrillas and terrorist-​separatist-​anarchic groups involved in wars,42 we must reach the only possible and logical solution which is pacifism, a philosophy of non-​violence, and compassion. One of the recent examples of a relatively good practice is the Arbitration Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia signed in 2009, which inter alia requires the Arbitral Tribunal to determine Slovenia’s junction to the high sea, applying ‘international law, equity and 36   See Francesca Vella, ‘Interview: Climate: the Common Heritage of Mankind’ The Malta Independent Online (12 January 2009) http://​w ww.independent.com.mt/​articles/​2009-​01-​12/​news/​interview-​climate-​ the-​common-​heritage-​of-​mankind-​218791/​ (last accessed February 2018). 37 38 39 40   UN Charter, art 1.  ibid.   ibid art 33.  ibid. 41   UNCLOS, arts 279 and 280. 42   https://​w ww.warsintheworld.com (last accessed February 2018).

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the principle of good neighbourly relations in order to achieve a fair and just result by taking into account all relevant circumstances’.43 The ruling44 was announced on 29 June 2017 by Gilbert Guillaume, President of the Arbitration Tribunal situated in the Hague, but Croatia unethically and illegally refused to recognize the judgment, saying it had withdrawn from the arbitration in 2015 after Slovenia violated and ‘contaminated’ the terms of the process. However, the award is now part of international law, final and legally binding for Slovenia and Croatia, and thus it is to be followed unconditionally. As for the time being Croatia is resisting applying the arbitration award and consequently is in breach of the rule of law, one of the fundamental values of the European Union, as well as the principle of loyal cooperation, it faces a possible legal action before the Court of Justice of the European Union in Luxemburg.

16.4 Maritime Law Drafters of recent international maritime treaties appear to be somehow more inspired by natural law, morality, and ethics than their predecessors, which is a promising sign of reviving humanity. This is particularly true in light of the environmental consciousness of the IMO, which is now shining from various conventions including the International Convention on the Control of Harmful Anti-​Fouling Systems (2001), the International Convention on Civil Liability for Bunker Oil Pollution Damage (2001), the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (2004), the Nairobi International Convention on the Removal of Wrecks (2007), and the Protocol of 2010 to amend the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996.45 Unfortunately, some of them have not entered into effect yet or have not been implemented efficiently in practice. There are also other optimistic traces of increasing awareness of ethics in maritime law. For instance, the UN General Assembly declared expressly that the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules of 2008)46 would modernize and harmonize the rules governing the international carriage of goods involving a sea leg, thus enhancing legal certainty, improving efficiency, and commercial predictability and reducing legal obstacles to the flow of international trade ‘on a basis of equality, equity and common interest’, contributing ‘to the well-​being of all peoples’.47 From an ethical perspective it is encouraging to note the provision that in the interpretation of this Convention ‘regard is to be had to its international character and to the need to promote uniformity

  http://​ w w w.vlada.si/​ f ileadmin/​ d okumenti/​ s i/​ p rojekti/​ 2 010/​ A rbitrazni_ ​ s porazum/​ 10.a_​ Arbitražni_​sporazum_​-​_​podpisan_​EN.pdf (last accessed July 2017). 44   https://​w ww.pcacases.com/​web/​sendAttach/​2172 (last accessed July 2017). 45   http://​ w ww.imo.org/ ​ K nowledgeCentre/ ​ H owAndWhereToFindIMOInformation/​ P ages/​ AbbreviationsOfIMOConventions.aspx (last accessed July 2017). 46   http://​w ww.uncitral.org/​uncitral/​uncitral_​texts/​transport_​goods/​2008rotterdam_​rules.html (last accessed July 2017). 47   See Resolution adopted by the UN General Assembly at 67th plenary meeting in December 2008, A/​ RES/​63/​122, and the Preamble of the Rotterdam Rules. 43



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in its application and the observance of good faith in international trade’.48 The Rules are composed of a number of minimum liability provisions, codifying jus cogens and therefore embodying moral and ethical standards. The next example of symbiosis of ethics and law is the Maritime Labour Convention (MLC), which was adopted in 2006 under the umbrella of the International Labour Organization (ILO)49 in order to provide efficient and modern protection at work for the world’s seafarers. It sets out their rights to decent working conditions, aiming to apply globally, replacing almost seventy existing conventions and regulations and benefiting shipowners with a clear, consistent set of standards with which all must comply. MLC was entered into force on 20 August 2013, that is, twelve months after the date on which there have been registered ratifications by at least thirty state parties (members) with a total share in the world gross tonnage of ships of 33 per cent.50 The seafarers remain to be covered by the provisions of other ILO instruments and have, of course, the fundamental rights and freedoms applicable to all persons. Each state party must ensure the freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory work, the effective abolition of child labour and the elimination of discrimination in respect of employment and occupation.51 Every seafarer has the right to (i) a safe and secure workplace that complies with safety standards, (ii) fair terms of employment, (iii) decent working and living conditions on board ship, and (iv) health protection, medical care, welfare measures, and other forms of social protection.52 As of July 2017, the MLC has been ratified by eighty-​four countries, which is a solid number but far from being perfectly ethical. Another illustration of the legal–ethical twins is one of the oldest sets of unique maritime rules named marine insurance which has been coloured throughout the centuries by morality and ethics because of its very nature. For instance, a contract of marine insurance is said to be a contract based upon the utmost good faith (uberrimae fidei) meaning that especially the insured is obliged to disclose all the material facts and must not misrepresent them to the insurer. The principle applies prior to the conclusion of contract and also during the contract. If it is not observed by either party, the contract may be avoided by the other party.53 However, in this regard one must not overlook the new UK Insurance Act 2015, which received royal assent on 12 February 2015, implementing considerable reforms to marine insurance and came into force in August 2016.54 The Act applies to every insurance

  Rotterdam Rules, art 2.   http://​w ww.ilo.org/​g lobal/​s tandards/​m aritime-​l abour-​c onvention/​l ang-​-​e n/​i ndex.htm (last accessed July 2017). 50  MLC, art VIII http://​w ww.mlc2006.com/​t he_​convention/​MLC_​Maritime_​Labour_​Convention,_​ 2006_​/​ (last accessed July 2017). 51 52   ibid art III.   ibid art IV. 53   See ss 17–​21 of the UK Marine Insurance Act 1906; Carter v Boehm (1766) 3 Burr 1905; Manifest Shipping Co Ltd v Uni-​Polaris Insurance Co Ltd and La Réunion Européene (The Star Sea) [2001] 1 Lloyd’s Rep 389 (HL); Pan Atlantic Insurance Co v Pine Top Insurance Co Ltd [1995] 1 AC 501 (HL); Banque Financière de la Cité SA v Westgate Insurance Co Ltd [1991] 2 AC 249. 54   See full text of the Insurance Act 2015 ch 4 at http://​w ww.legislation.gov.uk and Explanatory Notes to Bills: Insurance Bill [HL] at http://​w ww.publications.parliament.uk (both last accessed July 2017). 48 49

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policy, as well as to contracts of reinsurance and retrocession written in England and Wales, Scotland, and Northern Ireland. It is very ‘civilian’ in its nature, leaving behind some very old common law principles of insurance. For instance, policy-​holders are subject to a new duty of fair presentation replacing the existing duty of disclosure. The contracts of insurance continue to be of the utmost good faith, however, the insurer has different remedies depending on the situation. There are also significant new rules on warranties, abolishing the basis of the contract clauses which effectively convert every statement made by a policy-​holder before the contract is signed into a warranty. The new legislation replaces the existing harsh remedy for breach of a warranty in an insurance contract, which is contained in section 33(3) of the 1906 Marine Insurance Act.55 Last but not least, shipowners and other carriers have been historically entitled to limit their liability per package or unit of damaged, lost, or delayed cargo. Indeed, such a privilege also exists in the case of injured or dead passengers during the carriage which is, in my humble opinion, no longer ethically acceptable, not even for commercial reasons as the insurance industry is prepared to cover virtually everything. A major positive step forward was achieved by the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air, which was inspired by the consumers’ protection movements, private aviation sector and the EU legislation, in dubio pro consumatore. The Convention provides a two-​tier liability regime, a genius combination of fault and strict liability without any upper limit for carrying passengers. It is time to reconsider ‘what money can’t buy’, what are ‘the moral limits of markets’56 and make proper amendments to the existing transport treaties.57

16.5  Ocean Governance Ocean governance is usually described as a holistic conduct of the policy, actions, and affairs regarding oceans and seas on our planet. Besides states and international organizations it involves the influence of universities, funds, institutes, non-​governmental organizations, and other stakeholders. Despite maritime delimitations and respective state control, most of the oceans belong to humankind, which must be reflected by international law and based on solid ethical and/​or moral values. According to the European Union and European Academies’ Science Advisory Council (EASAC) policy report, oceans and seas are essential components of the biosphere and crucial for global food security, human health, and regulation of climate as the marine sustainability and human society are intrinsically interlinked. Given the fact that the livelihoods of over three billion people worldwide depend upon service from marine and coastal biodiversity, it is more than sensible and rational that over the past ten years there has been increasing focus on marine and maritime governance

55  For more about the reform see Marko Pavliha, ‘Reform of the UK (Marine) Insurance Law:  A Compromise between Common and Civil Law’ (2016) 1 European Transport Law 3. 56   See Michael J Sandel, What Money Can’t Buy:  The Moral Limits of Markets (Farrar, Straus and Giroux 2012). 57   See eg the 2002 Athens Protocol (sea), CVR convention (road) and CIV convention (railway).



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both within the European Union and beyond. The fundamental challenge for all policy-​makers is how to achieve a sustainable use of the oceans that ensures the availability of marine goods and services for future generations while meeting the demographic and economic demands.58 Although the law of the EU and its integrated maritime policy as related to ocean governance is discussed elsewhere, it is important to note because of the moral context that almost a revolutionary and highly ethical provision can be found in the third paragraph of Article 3 of the Treaty of the European Union to the effect that the Union shall establish an internal market, promote scientific and technological advance, and work for the sustainable development of Europe ‘based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment’, as already mentioned. Similarly, Article 37 of the Charter of Fundamental Rights of the European Union requires that a ‘high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’. In other words, it is worth repeating that it is not sufficient anymore to merely protect the environment but we must improve its quality. One of the crucial pillars of the EU holistic maritime policy is blue growth, in addition to international ocean governance, marine knowledge, skills and ocean literacy, maritime spatial planning, integrated maritime surveillance, maritime security strategy, and sea basins. Blue growth entails aquaculture, coastal tourism, ocean energy, seabed mining, and blue biotechnology.59 With respect to the latter, Koren Shadmi interestingly explains how the scientists alter our genetic code and engineer new forms of material that improve nature, ‘from flowers that can detect bombs to bacteria that secretes fuel’. That is the promise of synthetic biology, a technology which can also affect our oceans and seas, because it is ‘poised to change how we feed ourselves, clothe ourselves, fuel ourselves—​and possibly even change our very selves’:60 If the idea of synthesizing an entire human genome alarms you, you’re not alone—​ even some synthetic biologists, like Stanford’s Endy, are wary of the notion. The researchers behind GP-​w rite have made it clear that they have no intention of creating artificial people with their synthesized DNA; rather, their work will be confined to synthesizing human cells, in an effort to better understand how the human genome works—​and, potentially, how to make it work better. But any attempt to engineer the genetic code of living beings raises ethical concerns—​first over safety, and even more so, over success. What happens if an engineered plant or animal escapes into the wild, where its impact on the environment would be hard to predict? Engineering

58   European Union and European Academies’ Science Advisory Council, Marine Sustainability in an Age of Changing Oceans and Seas, EASAC Policy Report 28, Brussels, January 2016. 59   https://​ec.europa.eu/​maritimeaffairs/​home_​en (last accessed July 2017). 60   http://​w ww.newsweek.com/​2017/​07/​07/​natural-​selection-​new-​forms-​l ife-​scientists-​a ltering-​d na-​ 629771.html (last accessed July 2017).

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human cells to eliminate deadly genetic disorders might seem straightforward, but where would we draw the line between treatment and enhancement?61

On 25 September 2015 the UN member countries adopted seventeen goals to ‘transform our world’, to end poverty, protect the planet, and ensure prosperity for all as part of a new sustainable development agenda.62 Each goal has specific targets to be achieved over the next fifteen years, and the goals are the following: no poverty; zero hunger; good health and well-​being; quality education(!); gender equality; clean water and sanitation; affordable and clean energy(!); decent work and economic growth; industry, innovation and infrastructure; reduced inequality; sustainable cities and communities; responsible consumption and production; climate action(!); life below water(!); life on land; peace, justice, and strong institution; and partnership for the goals. It is perhaps not too pessimistic to assert that we must do our best and more to achieve all of the aforementioned goals because they are crucial for our survival, at least on the existing beautiful blue planet. It is not difficult to agree with Peter Singer,63 a distinguished Australian moral philosopher, that we need a frank, de facto, public, and ‘open government’, as well as ‘open diplomacy’ as to what should be also one of the crucial missions of media and internet. ‘We could’, in his opinion, ‘try to get closer to that ideal’, because: If government did not mislead their citizens so often, there would be less need for secrecy, and if leaders knew that they could not rely on keeping the public in the dark about what they are doing, they would have a powerful incentive to behave better.64

It is perhaps interesting to mention that the high-​level UN Conference to Support the Implementation of Sustainable Development Goal 14: Conserve and sustainably use the oceans, seas and marine resources for sustainable development was convened at UN Headquarters in New York from 5 to 9 June 2017, coinciding with the World Oceans Day, to support the implementation of Sustainable Development Goal (SDG) No 14. The Governments of Fiji and Sweden had the co-​hosting responsibilities of the conference, which aimed to be the game changer that would reverse the decline in the health of our ocean for people, planet, and prosperity. The conference has adopted two resolutions. The first one is dedicated to ‘Our ocean, our future: call for action’. The leaders and representatives of governments have been mobilized ‘by a strong conviction that our ocean is critical to our shared future and common humanity in all its diversity’, being determined to act decisively and urgently, and convinced that only the collective action will make a meaningful difference to the people, the planet, and prosperity. They recognize again the notorious fact that our oceans and seas cover three-​quarters of our planet, connect our populations and markets, form an important part of our natural and cultural heritage, supply

 ibid.   http://​w ww.un.org/​sustainabledevelopment/​sustainable-​development-​goals/​ (last accessed July 2017). Compare to Agenda 21 an UN-​O ceans:  http://​w ww.unoceans.org/​a bout/​en/​#c267737 (last accessed July 2017). 63 64   Peter Singer, Ethics in the Real World (Princeton University Press 2016) 253–​56.  ibid. 61

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nearly half the oxygen we breathe, absorb over a quarter of the carbon dioxide we produce, play a vital role in the water cycle and the climate system, and that they are an important source of our planet’s biodiversity and of ecosystem services. Furthermore, the marine waters contribute ‘to sustainable development and sustainable ocean-​based economies, as well as to poverty eradication, food security and nutrition, maritime trade and transportation, decent work and livelihoods’. The well-​being of present and future generations is inextricably linked to the health and productivity of the oceans. The high representatives were particularly alarmed ‘by the adverse impacts of climate change on the ocean, including the rise in ocean temperatures, ocean and coastal acidification, deoxygenation, sea-​level rise, the decrease in polar ice coverage, coastal erosion and extreme weather events’. They have called on all stakeholders to conserve and sustainably use the oceans, seas, and marine resources for sustainable development by taking, inter alia, the following actions (hereinafter cited verbatim from paragraph (a) to (v) because of their importance65) on an urgent basis, including by building on existing institutions and partnerships:









(a) Approach the implementation of Goal 14 in an integrated and coordinated way and promote policies and actions that take into account the critical interlinkages among the targets of Goal 14, the potential synergies between Goal 14 and the other Goals, particularly those with ocean-​related targets, as well as other processes that support the implementation of Goal 14; (b) Strengthen cooperation, policy coherence and coordination among institutions at all levels, including between and among international organizations, regional and subregional organizations and institutions, arrangements and programs; (c) Strengthen and promote effective and transparent multi-​stakeholder partnerships, including public-​private partnerships, by enhancing engagement of Governments with global, regional and subregional bodies and programs, the scientific community, the private sector, the donor community, non-​ governmental organizations, community groups, academic institutions and other relevant actors; (d) Develop comprehensive strategies to raise awareness of the natural and cultural significance of the ocean, as well as of its state and role, and of the need to further improve knowledge of the ocean, including its importance for sustainable development and how it is impacted by anthropogenic activities; (e) Support plans to foster ocean-​related education, for example as part of education curricula, to promote ocean literacy and a culture of conservation, restoration and sustainable use of our ocean; (f) Dedicate greater resources to marine scientific research, such as interdisciplinary research and sustained ocean and coastal observation, as well as the collection and sharing of data and knowledge, including traditional knowledge, in order to increase our knowledge of the ocean, to better understand the relationship between climate and the health and productivity of

65   https://​sustainabledevelopment.un.org/​content/​documents/​15662FINAL_​15_ ​June_ ​2017_​Report_​ Goal_​14.pdf (last accessed July 2017).

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Marko Pavliha the ocean, to strengthen the development of coordinated early warning systems on extreme weather events and phenomena, and to promote decision-​ making based on the best available science, to encourage scientific and technological innovation, as well as to enhance the contribution of marine biodiversity to the development of developing countries, in particular small island developing States and least developed countries; (g) Accelerate actions to prevent and significantly reduce marine pollution of all kinds, particularly from land-​based activities, including marine debris, plastics and microplastics, nutrient pollution, untreated wastewater, solid waste discharges, hazardous substances, pollution from ships and abandoned, lost or otherwise discarded fishing gear, as well as to address, as appropriate, the adverse impacts of other human-​related activities on the ocean and on marine life, such as ship strikes, underwater noise and invasive alien species; (h) Promote waste prevention and minimization; develop sustainable consumption and production patterns; adopt the 3Rs—​reduce, reuse and recycle—​ including through incentivizing market-​based solutions to reduce waste and its generation, improving mechanisms for environmentally sound waste management, disposal and recycling and developing alternatives such as reusable or recyclable products or products that are biodegradable under natural conditions; (i) Implement long-​term and robust strategies to reduce the use of plastics and microplastics, in particular plastic bags and single-​use plastics, including by partnering with stakeholders at relevant levels to address their production, marketing and use; (j) Support the use of effective and appropriate area-​based management tools, including marine protected areas and other integrated, cross-​sectoral approaches, including marine spatial planning and integrated coastal zone management, based on best available science, as well as stakeholder engagement and applying the precautionary and ecosystem approaches, consistent with international law and in accordance with national legislation, to enhance ocean resilience and better conserve and sustainably use marine biodiversity; (k) Develop and implement effective adaptation and mitigation measures that contribute to increasing and supporting resilience to ocean and coastal acidification, sea-​level rise and increase in ocean temperatures, and to addressing the other harmful impacts of climate change on the ocean as well as coastal and blue carbon ecosystems, such as mangroves, tidal marshes, seagrass and coral reefs, and wider interconnected ecosystems impacting on our ocean, and ensure the implementation of relevant obligations and commitments; (l) Enhance sustainable fisheries management, including to restore fish stocks in the shortest time feasible at least to levels that can produce maximum sustainable yield as determined by their biological characteristics, through the implementation of science-​based management measures, monitoring, control and enforcement, supporting the consumption of fish sourced from sustainably managed fisheries, and through precautionary and ecosystem approaches as appropriate, as well as strengthening cooperation and

















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coordination, including through, as appropriate, regional fisheries management organizations, bodies and arrangements; (m) End destructive fishing practices and illegal, unreported and unregulated fishing, addressing their root causes and holding actors and beneficiaries accountable by taking appropriate actions, so as to deprive them of benefits of such activities, and effectively implementing flag State obligations as well as relevant port State obligations; (n) Accelerate further work and strengthen cooperation and coordination on the development of interoperable catch documentation schemes and traceability of fish products; (o) Strengthen capacity-​building and technical assistance provided to small-​ scale and artisanal fishers in developing countries, to enable and enhance their access to marine resources and markets and improve the socioeconomic situation of fishers and fish workers within the context of sustainable fisheries management; (p) Act decisively to prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, eliminate subsidies that contribute to illegal, unreported and unregulated fishing and refrain from introducing new such subsidies, including through accelerating work to complete negotiations at the World Trade Organization on this issue, recognizing that appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of those negotiations; (q) Support the promotion and strengthening of sustainable ocean-​based economies, which, inter alia, build on sustainable activities such as fisheries, tourism, aquaculture, maritime transportation, renewable energies, marine biotechnology and seawater desalination as means to achieve the economic, social and environmental dimensions of sustainable development, in particular for small island developing States and least developed countries; (r) Increase efforts to mobilize the means necessary for the development of sustainable ocean-​related activities and the implementation of Goal 14, particularly in developing countries, in line with the 2030 Agenda, the Addis Ababa Action Agenda and other relevant outcomes; (s) Actively engage in discussions and the exchange of views in the Preparatory Committee established by General Assembly resolution 69/​292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, so that the General Assembly can, before the end of its seventy-​second session, taking into account the report of the Preparatory Committee to the General Assembly, decide on the convening and on the starting date of an intergovernmental conference; (t) Welcome follow-​ up on the partnership dialogues and commit to implementing our respective voluntary commitments made in the context of the Conference; (u) Contribute to the follow-​up and review process of the 2030 Agenda by providing an input to the high-​level political forum on sustainable development

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For the time being, the aforementioned actions need no additional comments, just let us hope they will be realized in the not too distant future.

16.6  Conclusion: The Crucial Importance of Upbringing and Education It is rather naive to expect professionals and particularly lawyers to think and act ethically (morally) if they were not brought up and educated under the umbrella of moral values and virtues. Once they enrol in a school of law it is already late if not too late but it is nevertheless strongly recommended to introduce an obligatory course on holistic legal ethics in the first year of undergraduate legal studies, accompanied by teaching ethical issues throughout the curriculum and perhaps an additional syllabus on ethics in the last year of law school, as well as during postgraduate studies and training for bar exams. It has already been suggested elsewhere67 that such an approach could serve as a truly holistic method which would cover a number of issues, such as an introduction to ethics, ethics and natural law, rhetoric and ethics, multiculturalism, equality, life, health, poverty, personal integrity, environment and climate change, civil disobedience, violence and terrorism, professional responsibility, and ethical decision-​making and ‘good lawyering’. A good, skilful, and moral lawyer would feel and know which international goals are of such a planetary and ethical importance they need to be achieved by mandatory rules; how to govern oceans and the rest of the environment and climate sustainably for future generations; how to construe legally and ethically certain norms, standards, and principles; how to implement international treaties in practice; how to adjudicate disputes in the name of justice, how to settle disputes by peaceful means; how to be professional, fair, honest, and compassionate at all times and, most importantly, how to be human. Is this too much to ask? Beware: every tiny and huge change begins with you and me, with every enlightened individual, because ‘two is one and one is none’, to quote the Navy Seals, if one prefers militaristic jargon instead of pacifistic terminology.

 ibid.  Marko Pavliha, ‘The Significance of Ethics in Legal Education:  Towards the Holistic Method’ (2011) (1–​2) Slovenian Law Review 115. See also contributions by numerous authors participating at the ‘Roundtable on Legal Ethics in Legal Education: Should it be a Required Course?’ (2011) 14 Legal Ethics 109. 66 67

17 Intergenerational Equity, Ocean Governance, and the United Nations Malgosia Fitzmaurice*

17.1 Introduction In the message on 8 June 2014 on the occasion of the World Oceans Day, the Secretary-​ General stated as follows: The observance of World Oceans Day this year coincides with the 20th anniversary of the entry into force of the United Nations Convention on the Law of the Sea. Known as the ‘Constitution for the Oceans’, this instrument provides a comprehensive legal regime for all ocean activities and is critical to the sustainable use of the world’s seas and oceans. We have to ensure that oceans continue to meet our needs without compromising those of future generations. They regulate the planet’s climate and are a significant source of nutrition. Their surface provides essential passage for global trade, while their depths hold current and future solutions to humanity’s energy needs. On this World Oceans Day, let us reflect on the multiple benefits of the oceans. Let us commit to keep them healthy and productive and to use their resources peacefully, equitably and sustainably for the benefit of current and future generations.1

There is no doubt that there is great commitment within the United Nations (UN) organization to the needs of future generations, in the fulfilment of the concept of intergenerational equity or solidarity. This is evidenced by various statements of the Secretary-​General of the UN, of which the most important was issued in 2013.2 The concept of intergenerational equity is inexorably linked to the principle of sustainable development; in fact, it is one of its elements. This was acknowledged already in 1987 Report Our Common Future, the so-​called Brundtland Report, issued by the United Nations World Commission on Environment and Development (WCED). The definition of sustainable development included in this report was formulated as follows: ‘development that meets the needs of the present

*   The author would like to express her gratitude to HE Judge David Attard for his very thoughtful comments on the first draft of this chapter. 1  See http://​www.unric.org/​it/​messaggi-​discorsi-​dichiarazioni-​e-​commenti-​del-​segretario-​generale-​ 2013/​30120-​secretary-​generals-​message-​on-​the-​worlds-​ocean-​day-​08-​june-​2014 (last accessed October 2016). 2   Report of the Secretary-​General Intergenerational Solidarity and the Needs of Future Generations (Sixty-​eighth session, United Nations General Assembly) https://​sustainabledevelopment.un.org/​content/​documents/​2006future.pdf (last accessed October 2016).

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without compromising the ability of future generations to meet their own needs’.3 The WCED noted that: ‘We act as we do because we can get away with it: future generations do not vote, they have no political or financial power; they cannot challenge our decisions’.4 As understood in the Secretary-​General’s Report, the concept of intergenerational solidarity refers most frequently to ‘relations between the younger and older generations of those living, including children–​parent relations, social participation of elderly people and children in communities, affordability of pensions and elderly care’.5 The trend is, however, inclusion of all generations, due to rapidly ageing societies, where family-​oriented policies need to take into account the changing role, needs, and demands of all generations. There are other UN adopted documents that include all generations into the concept of inter​generational solidarity. For instance, the Madrid International Plan of Action on Ageing 2002, adopted at the United Nations Second World Assembly on Ageing, provides that ‘Solidarity between generations at all levels—​in families, communities and nations—​is fundamental for the achievement of a society for all ages. Solidarity is also a major prerequisite for social cohesion and a foundation of formal public welfare and informal care systems’.6 Furthermore, the ECOSOC has identified ‘social integration and intergenerational solidarity’ as one of the three themes to guide the Commission on Social Development’s preparations for the twentieth anniversary of the International Year of the Family.7 The concept of intergenerational equity (solidarity) is wider as it embraces future generations, who do not yet exist, and is therefore not limited to the relations among currently living representatives.

17.2  The Concept of Intergenerational Equity within the Context of Sustainable Development and the Protection of the Environment Professor Brown-​ Weiss was the first scholar to conceptualize the concept of intergenerational equity within the context of the protection of the environment.8 According to her, this concept encompasses all generations because ‘we, the human species, hold the natural environment of our planet in common with all members of our species: past generations, the present generation, and future generations’.9 Each generation is both a trustee for the planet with duties to care for it and a beneficiary with rights to use it.

3  See Our Common Future http://​w ww.un-​documents.net/​our-​common-​f uture.pdf (last accessed October 2016). 4 5  ibid.   See n 1, at 6. 6   Report of the Second World Assembly on Ageing, Madrid, 8–​12 April 2002, A/​CONF.197/​9, annex II para 42. 7   E/​R ES/​2012/​10. 8   Edith Brown-​Weiss, ‘Our Rights and Obligations to Future Generations for the Environment’ (1990) 84 American Journal of International Law 198. See also extensively on this topic Zena Hadjiargyrou, ‘A Conceptual and Practical Evaluation of Intergenerational Equity in International Environmental Law’ (2016) (3–​4) International Community Law Review 248. 9   Brown-​Weiss (n 8) 198–​99.



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There are three basic principles of intergenerational equity—​the ‘conservation of options’, which entails conserving the diversity of the natural and cultural resource base, to a level comparable to that enjoyed by the previous generation, the ‘conservation of quality’, which entails passing on a planet which is comparable in quality to that enjoyed by previous generations and ‘the conservation of access’, which entails rights of access to past legacies. Furthermore, ‘Intergenerational planetary rights may be regarded as group rights . . . they exist regardless of the number and identity of individuals making up each generation’.10 Brown-​Weiss introduced the concept of trust between the generations, which is based on the concept of trust in common law. She proposed the establishment of a guardian for future generations in order to enforce laws for their benefit for and to represent them. This can be done by in the form of an ombudsman.11 Brown-​Weiss’ theory of trust is not without controversy, in particular concerning the rights and obligations created.12 She argues that ‘the rights are always associated with obligations’.13 She then claims that ‘each generation is both a trustee for the planet with obligations to care for it and a beneficiary with rights to use it’.14 According to Hadjiargyrou, this analysis is prima facie entirely legal as it implies that beneficiaries have rights by virtue of their status as beneficiaries and that trustees have obligations by virtue of their status as trustees which is indeed the case in the law of trusts. There is no reason for it; the mere creation of a trust gives rise to such contingencies. Brown-​Weiss also adds to her theory of trust a moral dimension, stating that the rights and obligations ‘represent at first a moral protection of interests, which must be transformed into legal rights and obligations’,15 thus avoiding a legal analysis instead transcending to principles of morality, which translate into legal rights and obligations.16 One of the most severe critics of the theory of Brown-​Weiss is Vaughan Lowe. He defined this theory as the ‘Chimera’,17 and then asked the following question: ‘Who are the beneficiaries? What are their rights of actions? What are the duties of trustees?’ He also notes that intergenerational equity lacks any legal content and the perceived rights of future generations are purely metaphorical. According to Lowe, obligations and duties of trustees are not enforceable, as ‘international law lacks institutions and mechanisms with the authority and ability to make rational choices of this kind’.18 There were also other critical comments regarding the theory of Brown-​Weiss,19 on the basis of the Derek Parfit’s paradox analysis,20 and that of the chaos theory, which looks at the long-​term effects that even the flapping of a butterfly’s wings can have on the environment. D’Amato argues that we cannot discharge our obligation if in the process of doing so we deprive the designated future generation of life due to our intervention. Therefore, is it better to live in a degraded environment than not to live at all. D’Amato also criticized Brown-​Weiss’ theory as anthropocentric. 11 12 13  ibid 203.  ibid 205.   See Hadjiargyrou (n 8) 4.   Brown-​Weiss (n 8) 202. 15 16  ibid 200.  ibid 202.   Hadjiargyrou (n 8) 4. 17   Vaughan Lowe, ‘Sustainable development and Unsustainable Arguments’ in A Boyle and D Freestone (eds), International Law and Sustainable Development:  Past Achievements and Future Challenges (OUP 1999) 27. 18  ibid 28. 19   Anthony D’Amato, ‘Do We Owe a Duty to Future Generations to Preserve the Global Environment’ (1990) 84 American Journal of International Law 190, 191. 20  Derek Parfit, ‘On Doing Best for Our Children’ in M Bayles (ed), Ethics and Population 100 (Schenkman Publishing Co 1976). 10 14

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The philosophical basis of Brown-​Weiss’ trusts theory is the theory of distributive justice of John Rawls, termed ‘justice as fairness’, 21 and which is a conception of justice . . . shared by citizens as a basis of a reasoned, informed, and willing political agreement’.22 He formulated two principles of justice, which regulate institutions and form the basic structure of society: (i) ‘Each person has an equal claim to . . . equal basic rights and liberties’ and (ii) ‘social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second they are to be of the greatest benefit of the least advantaged members of society’.23 Rawls introduced the famous veil of ignorance and uses the ‘original position’ to explain his perspective of justice, operating behind a veil of ignorance, in order to treat everybody equally.24 Unlike Rawls, Brown-​Weiss elaborated her theory based on the concept of justice as the just savings principle; the difference principle, the original position, and the veil of ignorance are applied by Brown-​Weiss in an intergenerational context, which Rawls’ theory does not do.25 There are several theoretical obstacles to the application of the Rawls theory in the intergenerational context. How can an agreement be arrived at, which forms the very basis of any contract theory, when the parties to the contract are not even present? ‘Rawls’ social contract theory is very much limited to the relationship between physically existing people’,26 given that the principles must be chosen and agreed upon within a society which currently exists. It might be speculated that indirect reciprocity underpins Rawls’ just savings principle, which requires that each generation passes on in real capita in return for what it received which also underpins Brown-​Weiss’ entire theory in that the planet should be passed on in no worse condition than it was received in.27 As it was noted: ‘It comes as no surprise that a concept, which is so malleable within its own terms, proves to be highly problematic when invoked in practice’.28

17.3  International Conventions and Soft Law Instruments Including the Principle of Intergenerational Equity The concept of future generations has part and parcel of numerous legally binding international environmental agreements. The 1946 International Convention for the Regulation of Whaling states ‘the governments . . . safeguarding for future generations . . . whale stocks’.29 Another example of hard law, which appeals to future generations, is the 1992 United Nations Framework Convention on Climate Change (UNFCCC),30 a treaty adopted at the Rio Conference in 1992. Article 3 states:   John Rawls, A Theory of Justice (Harvard University Press 1999). 23   John Rawls, Political Liberalism (Columbia University Press 1996) 9.   ibid 5–​6. 24 25  ibid 11.   Hadjiargyrou (n 8) 9. 26  Malgosia Fitzmaurice, Contemporary Issues in International Environmental Law (Edward Elgar Publishing 2009) 116. 27 28   Hadjiargyrou (n 8) 10.  ibid 10. 29   1946 International Convention for the Regulation of Whaling 161 UNTS 72. 30   1992 United Nations Framework Convention on Climate Change 1771 UNTS 107. 21

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‘(1) The parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity. . . (2) take precautionary measures to anticipate, prevent . . . causes of climate change’. The 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals states ‘the contracting parties . . . aware that each generation of man holds the resources of the earth for future generations and has an obligation to ensure that this legacy is conserved . . . used wisely’ (emphasis added).31 Principle 2 of the 1972 Stockholm Declaration on Human Environment states ‘The natural resources of the earth . . . must be safeguarded for the benefit of present and future generations’32 and Principle 3 of the 1992 Rio Declaration on Environment and Development states: ‘The right to development must be fulfilled as to equitably meet developmental and environmental needs of present and future generations’.33 The element of intergenerational equity is inexorably linked with the concept of sustainable development, as had already been defined in the Brundtland report. Therefore, such milestone events as the Johannesburg Summit on Sustainable Development;34 the 2012 Rio +20 Conference and its outcome document The Future We Want;35 ‘Transforming Our World: the 2030 Agenda for Sustainable Development’36 through the means of sustainable development also include and promote the concept of intergenerational equity. The 2002 Johannesburg Declaration on Sustainable Development acknowledged future generations, referring to children:

3. At the beginning of this Summit, the children of the world spoke to us in a simple yet clear voice that the future belongs to them, and accordingly challenged all of us to ensure that through our actions they will inherit a world free of the indignity and indecency occasioned by poverty, environmental degradation and patterns of unsustainable development. 4. As part of our response to these children, who represent our collective future, all of us, coming from every corner of the world, informed by different life experiences, are united and moved by a deeply felt sense that we urgently need to create a new and brighter world of hope.37



The document The Future We Want includes the following: We resolve to take urgent action to achieve sustainable development. We therefore renew our commitment to sustainable development, assessing the progress to date and the remaining gaps in the implementation of the outcomes of the major summits   1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals19 ILM 15 (1980).   Stockholm Declaration on Human Environment http://​w ww.unep.org/​documents.multilingual/​default.asp?documentid=97&articleid=1503 (last accessed October 2016). 33   The Rio Declaration on Environment and Development http://​w ww.unep.org/​documents.multilingual/​default.asp?documentid=78&articleid=1163 (last accessed October 2016). 34  The Johannesburg Declaration on Sustainable Development http://​w ww.joburg.org.za/​pdfs/​ johannesburgdeclaration.pdf (last accessed October 2016). 35  See the 2012 Rio +20 Conference, and its outcome document The Future We Want https://​ sustainabledevelopment.un.org/​rio20/​f uturewewant (last accessed October 2016). 36   Transforming Our World:  the 2030 Agenda for Sustainable Development https://​ sustainabledevelopment.un.org/​post2015/​transformingourworld. 37  The Johannesburg Declaration on Sustainable Development http://​w ww.un-​documents.net/​ jburgdec.htm (last accessed October 2016). 31

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on sustainable development and addressing new and emerging challenges. We express our determination to address the themes of the United Nations Conference on Sustainable Development, namely, a green economy in the context of sustainable development and poverty eradication, and the institutional framework for sustainable development (para 12).

And finally, ‘Transforming our world: the 2030 Agenda for Sustainable Development’ used the following formulation: The challenges and commitments contained in these major conferences and summits are interrelated and call for integrated solutions. To address them effectively, a new approach is needed. Sustainable development recognizes that eradicating poverty in all its forms and dimensions, combating inequality within and among countries, preserving the planet, creating sustained, inclusive and sustainable economic growth and fostering social inclusion are linked to each other and are interdependent (para 13).

17.4  The 1982 United Nations Convention on the Law of the Sea and Intergenerational Equity The 1982 United Nations Convention on the Law of the Sea (UNCLOS) includes in its part XI a concept of the common heritage of mankind (CHM), covering the ‘Area’ (ie the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction). This concept was introduced at the forum of the United Nations by the Maltese ambassador Arvid Pardo to the United Nations General Assembly (UNGA) in 1967. He suggested that the seabed and ocean floor beyond national  should be under the CHM regime. Under this regime, resources of the Area are to be used by the international community of states, subject to international administration and management for the common good of all humanity, in contrast to the freedom of the seas. Article 136 declares the Area and its resources to be under the regime of ‘common heritage of mankind’. The Area and its resources cannot be claimed, appropriated, or owned by any state or person (Article 137). All rights to resources belong to mankind as a whole, with the International Seabed Authority (ISA) acting on mankind’s behalf (Article 140). The ISA’s task is to ensure the equitable sharing of financial and other benefits arising from activities in the Area, taking into particular account the needs and interests of developing states and others. The ISA’s functions are also promotion of research, transfer of technology to developing states, and protection of the marine environment’s ecological balance (Articles 143–​145). There is no doubt that this concept takes into account future generations and the needs of developing countries.38 Further clarification and elucidation 38   Prue Taylor, ‘The Common Heritage of Mankind: A Bold Doctrine Kept within Strict Boundaries’ The Wealth of Commons. The World Beyond the Market & State http://​wealthofthecommons.org/​essay/​ common-​heritage-​mankind-​bold-​doctrine-​kept-​w ithin-​strict-​boundaries (last accessed October 2016). See also the chapter on ‘High Seas’ by David Attard and Patricia Mallia, and on ‘The International Seabed Area’ by Helmut Tuerk, in David Attard, Malgosia Fitzmaurice, and Norman A Martinez Gutierrez (eds), IMLI Manual on International Maritime Law, vol I: The Law of the Sea (OUP 2014).



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of the function of the ISA in relation to the rights of future generations is found in the Advisory Opinion of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) on Responsibilities and Obligations of States with Respect to Activities in the Area.39 According to the Advisory Opinion, neither the UNCLOS nor the relevant regulations specify what constitutes compensatable damage, or which subjects may be entitled to claim compensation. The Chamber explained that it may be envisaged that the damage would include damage to the Area and its resources constituting the common heritage of mankind, and damage to the marine environment (paragraph 179). Although there is no provision of the UNCLOS explicitly entitling the ISA to make such a claim, it may, however, be argued, the Chamber said, that such entitlement is implicit in Article 1372 of the UNCLOS, which states that the ISA shall act ‘on behalf of mankind’. Each state party may also be entitled to claim compensation in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area. The Chamber made a reference to Article 48 of the ILC Articles on State Responsibility.40 It may be added that these Articles also include the obligations erga omnes partes which give a standing to a state part of a multilateral convention to bring a case before the Court, even without a direct harm.41 There is therefore a real possibility with such wide understanding of the functions of the ISA and also standing granted by Article 48, the interests of the future generations can be secured and redressed.

17.5  International Case Law and Future Generations The first and visionary case which can be said advocated the concept intergenerational equity was the Pacific Fur Seal Arbitration,42 the subject matter of which was a dispute between the UK and the USA concerning seal hunting. The British Government disputed the US’s claim to sovereignty of the Bering Sea and fur seals found therein, outside the three miles of sea bordering its islands. The arguments the USA adopted were forward looking, if not visionary. The USA announced its claim was justified on the grounds of a common interest or property of mankind: Either [seals] they belong to, or are within, the jurisdiction and control of the United States, as that country claims, or else they are the common property of all mankind. These are the alternatives on the question of ownership which confront Great Britain.

39   Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, 10. 40   ‘Any State other than an injured State is entitled to invoke the responsibility of another State   . . .   if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole.’ See Responsibility of States for Internationally Wrongful Acts 2001 http://​legal. un.org/​i lc/​texts/​instruments/​english/​draft_​articles/​9_​6 _​2001.pdf (last accessed October 2016). 41  The Whaling in Antarctic case is an example of such a case where Australia and New Zealand intervening sued Japan over scientific whaling. Whaling in the Antarctic (Australia v Japan:  New Zealand intervening), Judgment, ICJ Reports 2014, 226. See also Malgosia Fitzmaurice and Dai Tamada (eds), Whaling in Antarctic: Significance and Implications of the ICJ Judgment (Brill/​Martinus Nijhoff 2016). 42   Pacific Fur Seal Arbitration (United States of America v Great Britain) (1893) 1 Moore’s International Arbitral Awards 733.

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Intergenerational equity might be said to hold some of its roots in the concept of a common interest of mankind.43 The International Court of Justice, the juridical organ of the UN, made important statements in relaxation to nuclear testing and the use of threat of use of nuclear weapons concerning intergenerational equity and future generations. In particular, the former judge and vice-​president of the Court, Christopher Weeramantry in his separate judgments, has made a long-​lasting contribution to further clarification of this concept. The 1995 Nuclear Tests II case44 was a result of the Nuclear Tests I case45 of 1974. Paragraph 63 of the 1974 judgment stated that: ‘[i]‌f the basis of this Judgment were to be affected, the Applicant could request an examination of the situation . . .’. The 1974 cases concerned the atmospheric testing whilst the 1995 case, underground testing. In 1995 France had planned to conduct eight final underground nuclear weapons tests in the South Pacific. The Court, in 1995, found that the judgment of 1974 dealt exclusively with atmospheric nuclear tests and that this formed the basis of the judgment. Therefore, the Court declined its jurisdiction, as the new case related to underground nuclear tests. New Zealand requested the induction of provisional measures by the Court for France to refrain from further nuclear tests before the environmental impact assessment would have been conducted and that no action be taken which might aggravate the dispute. This request for provisional measures was rejected. The Court’s narrow interpretation of its jurisdiction gave rise to the controversy, as it was argued that the Court focused on technicalities rather than merits of the case. Judges Weeramantry, Koroma, and Judge ad hoc Sir Geoffrey Palmer viewed the Court’s role from a broader perspective, inter alia, as a trustee of rights of future generations. According to Judge Weeramantry’s dissenting opinion, the Judgment was a very unwelcome decision in relation to nuclear tests, due to their well-​documented long lasting effects. Judge Weeramantry stated that: The case before the Court raises . . . the principle of intergenerational equity—​an important and rapidly developing principle of international law . . . if the damage of this kind alleged had been inflicted on the environment by the people of the Stone Age, it would be with us today . . . this is an important aspect that an international tribunal cannot fail to notice. This court must regard itself as trustee of those (intergenerational rights) . . . The rights of the people of New Zealand include the rights of unborn posterity. Those are rights which a nation is entitled, and indeed obliged, to protect.46

  In this case the arbitral tribunal upheld the position of Great Britain regarding the freedom of the high seas. 44   Request for an Examination of the Situation in Accordance With Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) ICJ Reports 1995, 317; Nuclear Tests (Australia v France), Judgment, ICJ Reports 1974, 253. 45   Nuclear Tests (New Zealand v France), Judgment, ICJ Reports 1974, 457. 46   Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case, Order of 22 September 1995 (Dissenting Opinion of Judge Weeramantry) ICJ Reports 1995, 317–​62. 43



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In cases like that, it was further viewed, the principle on intergenerational equity is very important and has to be recognized in its own right. Judge Weeramantry supported the concept of trust the present generations’ rights includes those of posterity. In 1996 the International Court of Justice gave an Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons, pursuant to Article 96(1) of the UN Charter. The UNGA asked the Court: ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?’ It was stated that: The Court recognises that  . . .  the environment  . . .  represents  . . .  the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction  . . .  respect the environment of other States or of areas beyond national control is now part of the corpus of international law . . . (para. 29) . . . The destructive power of nuclear weapons cannot be contained in either space or time . . . the use of nuclear weapons would be a serious danger to future generations. Ionizing radiation has the potential to damage the future environment . . . and to cause genetic defects and illness in future generations (para 35) . . . it is imperative for the Court to take account of the unique characteristics of nuclear weapons . . . [and] their ability to cause damage to generations to come (para 36).47

The opinion of the Court raised certain dissatisfaction as the Court stopped short of explicitly relying on a principle of intergenerational equity. It may be stated, however, that although non-​binding, advisory opinions play a very important role in the crystallization of international law and, in this particular Opinion, the Court stressed the importance of the environment and in this context of the rights of future generations. The case concerning the Gabčíkovo-​Nagymaros Project48 concerned a dispute between the Slovak Republic (the case was brought before the Court after the separation of Czechoslovakia) and the Republic of Hungary concerning the construction and operation of a hydroelectric power plant on the Danube River, based on a bilateral treaty, which did not have termination clauses. Only a part of the project had been finished before Hungary suspended and then terminated the project, partly due to environmental concerns. The Court stated: It is clear that the Project’s impact upon . . . the environment are of necessity a key issue  . . .  vigilance and protection are required on account of the often irreversible character of damage to the environment  . . .  Throughout the ages, mankind has, for economic . . . reasons, constantly interfered with nature. Owing to . . . a growing awareness of the risks for mankind—for present and future generations—of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed . . . such norms have to be . . . given proper weight . . . this need

  Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226.   Case Concerning the Gabčíkovo-​Nagymaros Project (Hungary v Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 77–​78, para 140. 47

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to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development...49

Judge Weeramantry, in his Separate Opinion, referred to the ‘trusteeship of earth resources’, and asserting that ‘since flora and fauna have a niche  . . .  they must be expressly protected. There is a duty lying upon all members of the community to preserve the integrity and purity of the environment. Natural resources are not individually, but collectively, owned’.50 In the Case Concerning Certain Phosphate Lands in Nauru,51 concerning a dispute over the rehabilitation of certain phosphate lands mined under Australian administration before Nauru gained independence, the latter claimed that Australia had breached the trusteeship obligations it had accepted under Chapter XII, Article 76 of the UN Charter 1945 and Articles 3 and 5 of the Trusteeship Agreement for Nauru of 1 November 1947. More specifically, Article 3 of the Trusteeship Agreement lays out the obligations to administer the territory in such a way that achieves the requirements of Article 76 of the UN Charter, which requires the promotion of ‘[t]‌he political, economic, social and educational advancement of the inhabitants of the trust territories and their progressive development towards self-​government  . . .’, while Article 5(2)(a) of the Trusteeship Agreement further provided that the Administering Authority would ‘[r]espect the rights and safeguard the interests both present and future, of the indigenous inhabitants of the territories’. Nauru argued that it had a legal entitlement to the Australian allocation of the overseas assets and that Australia was under a duty to make appropriate reparations for losses caused to the Republic of Nauru as a result of the breaches of its legal obligations and its failure to recognize the interest of Nauru in the overseas assets. The case before the Court had elements of rights of future generations as Australia was placed in the position of both trustee and beneficiary as it had once enjoyed the benefits of the phosphate and was later in a position of administering the phosphates. Both present and future generations of the Nauru peoples were in the position of beneficiaries; thereby creating a system of distributive justice through the operation of a trust. Additionally, trust funds were set up to rehabilitate the worked-​out land, operating as a system of corrective justice for damage done. The Nauru case exhibits both elements of Brown-​Weiss’ theory, that is, corrective and distributive justice (intergenerational justice and trust). In conclusion, it may be said the International Court of Justice has noted in its jurisprudence the rights of future generations. It, however, has not elaborated either on their legal character or on its role as a trustee of such rights. Such a role is very difficult to define as the nights of future generations are rather vague from a legal and positivist point of view. Such rights are a nexus of legal and moral rights, whereas the Court

 ibid.  Separate Opinion of Vice-​ President Weeramantry http://​w ww.icj-​cij.org/​docket/​fi les/​92/​7383. pdf http://​w ww.icj-​cij.org/​fi les/​case-​related/​92/​092-​19970925-​JUD-​01-​03-​EN.pdf (last accessed February 2018). 51   Case Concerning Certain Phosphate lands in Nauru (Nauru v Australia), Judgment of 26June 1992 [1992] ICJ Reports 240. 49

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adjudicates its cases on a legal basis, therefore the result of the Court’s examination of rights of future generations and the concept of intergenerational equity, may appear to be not entirely satisfactory, or fulfilling expectations. There is also a tension between the rights of future generations and those of the present, in particular including economic rights. Such a problem is very complex and it cannot be rationally expected that the Court is in the position to clarify and crystallize all issues pertaining to the rights of future generations and to the concept of intergenerational equity.

17.6  National Case Law and Future Generations Turning to national case-​law, without doubt the Minors Oposa litigation is the most famous case concerning intergenerational equity.52 A  group of children, including those of environmental activist Antonio Oposa, brought this lawsuit in conjunction with the Philippine Ecological Network, Inc. (a non-​profit organization) to stop the destruction of the fast disappearing rain forests in their country. The minors claimed that they were ‘entitled to the full benefit, use and enjoyment of the natural resource treasures that is the country’s virgin tropical rainforests’. The children claimed that they represented themselves and generations yet unborn, thereby incorporating intergenerational equity into their suit. Standing was permitted insofar as it accommodated the right to a healthful ecology as embodied in Sections 15 and 16 of Article II of the Philippine Constitution. The Court held: Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors’ assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come . . . While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-​preservation and self-​perpetuation—​aptly and fittingly stressed by the petitioners—​the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-​founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the

52   Minors Oposa v Secretary of the Department of Environment and Natural Resources (DENR), Supreme Court of the Philippines, 30 July 1993, 33 ILM (1994) 173.

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present generation, but also for those to come—​generations which stand to inherit nothing but parched earth incapable of sustaining life.53

This case, however, also illustrates the legal difficulties the position of future generations in issues such as the standing before the Court. These considerations were very aptly expressed by Judge Feliciano in his Separate Opinion: The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and maintenance of this suit (Decision, pp 11–​12). Locus standi is not a function of petitioners’ claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of ‘class’ here involved—​membership in this ‘class’ appears to embrace everyone living in the country whether now or in the future—​it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries’ right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries’ right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown (‘prior exhaustion of administrative remedies’), is not discussed in the decision and presumably is left for future determination in an appropriate case.54

Similar considerations were expressed by Gatmaytan, who was of the opinion that ‘Oposa is overrated’, and that the praise and acclamation it has received in recent years are misdirected.55 He stated, inter alia, that the decision did not affect the government’s conduct towards Timber Licensing Agreements (TLAs) which were not cancelled thereby, judgment of the Court having no practical effect on future generations. He also opined that the granting of standing to sue on behalf of future generations was only obiter dictum thereby not really affecting the value of intergenerational equity as a binding legal right or obligation. As Judge Feliciano, Gatmaytan observed that in this case the issue of standing in the Philippines is approached very widely and loosely. Overall, Gatmaytan has admitted that the Oposa case was a valuable decision, but only as it recognized as justiciable the constitutional right to a healthful ecology, in contrast to issues regarding intergenerational equity in this case, which he has not considered as meaningful or adding any new legal dimension. Lowe also expressed a negative evaluation of the Oposa case. He has stated that ‘it is not the right of a future generation, but the duty of some members of the present

 ibid.  See Judge Feliciano, Separate Opinion http://​hrlibrary.umn.edu/​research/​Philippines/​Oposa%20 v%20Factoran,%20GR%20No.%20101083,%20July%2030,%201993,%20on%20the%20State’s%20 Responsibility%20To%20Protect%20the%20Right%20To%20Live%20in%20a%20Healthy%20 Environment.pdf (last accessed October 2016). 55   Dante B Gatmaytan, ‘The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory’ (2003) 15 Georgetown International Environmental Law Review 459. 53

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generation that is being enforced at the instance of other members of the present generation’,56 as the future generations, he says could not be bound by Oposa. According to him, future generations cannot possess rights of enjoyment or exercise their duty even to mitigate logging because they do not exist. Lowe argued the invocation of future generations in this case only served as a rhetorical device.57 There are several other cases in which the concept of intergenerational equity was invoked but with varied results. In M Farooque v Bangladesh and Others, 58 the petitioner appealed to Oposa to sue on his own behalf and also on behalf of future generations. Oposa, however, was entirely rejected due to the fact that no constitutional right inherently entailed the rights of future generations in Bangladesh, as was the case in the Philippines. In Pakistan, however, the concept has never been applied. In India, in People United for Better Living Calcutta v State of West Bengal (1992)59 on water pollution and the maintenance of wetlands in Calcutta, the Court held that: ‘there shall be a proper balance between the development and the environment’, thereby invoking sustainable development whilst claiming that: ‘The present day society has a responsibility towards the posterity . . . to breathe normally and live in a cleaner environment  . . .’,60 thereby creating an ethos of intergenerational duty. In S Jagannath v Union of India (1996),61 the petitioners filed a claim against intensified shrimp farming, which posed a serious threat to the environment and ecology. The Court held that it had ‘no hesitation in holding that Sustainable Development . . . has been accepted as a part of the customary international law, thereby recognising the rights of future generations  . . .  some of the salient principles of Sustainable Development  . . .  are Inter-​Generational Equity’.62 Through recognizing sustainable development as primary international law, the court recognized and identified intergenerational equity as such, and required it as an element to be taken account of in any environmental impact assessment. In the High Court of Delhi, in Vedanta Alumina Ltd v Prafulla Samantra and Others,63 the petitioner filed a complaint against the construction of an aluminium smelter plant. Reference was made to ND Jayal v Union of India,64 which stated that: ‘Weighty concepts like inter-​generational equity . . . public trust doctrine . . . could only be nurtured by ensuring sustainable development’.65 This overview of cases clearly indicates that although the intergenerational equity has been invoked several times, its legal content and the standing in cases of its invocation is not entirely clear or straightforward. Somehow, the very wide and imprecise formulation of this concept does not sit easily with strict requirements of national law regarding rules of standing before courts. Indeed, as Lowe stated, at times it appears that the reliance of intergenerational equity is a purely rhetorical device.

57   Lowe (n 17) 27.  ibid.   AIR 1993 Cal 215, 97 CWN 142. 62 63  ibid.   LPA 277/​2009 56 59

  (1997) 49 DLR (AD) 1. 60 61  ibid.   AIR 1997 SC 811 (11 December 1996). 64 65   (2004) 9 SCC 36.  ibid. 58

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17.7  Constitutional and Institutional Protection of the Rights of Future Generations There are several Constitutions that refer to the rights of future generations. The 2010 Constitution of Kenya, currently in operation, makes multiple references to future generations. The preamble of the Constitution states: ‘We the people of Kenya . . . respectful of the environment, which is our heritage, and determined to sustain if for the benefit of future generations’. Articles 42, 69, 70, and 201 make further references to the rights of future generations. The Argentinian Constitution Article 41(1) states that: ‘All inhabitants are entitled to the right to a healthy and balanced environment . . . productive activities shall meet present needs without endangering those of future generations; and shall have the duty to preserve it’. The Constitution of Poland Article 74(1) states that: ‘Public authorities shall pursue policies ensuring the ecological security of current and future generations’. Article 20a of the German Constitution states: ‘Mindful also of the responsibility toward future generations, the State shall protect the natural bases of life by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order’. The Constitution of South Africa includes both the right to a clean environment and generational justice. In 2015, in Wales was promulgated the Well-​being of Future Generations (Wales) Act 2015, which is based on the sustainable development concept. Interestingly, it also established the office of Future Generations Commissioner for Wales in order to promote the needs of future generations by monitoring and reporting on the extent to which the public bodies are setting and seeking to meet their well-​being objectives in accordance with the sustainable development principle; and to provide for the Commissioner to carry out reviews of public bodies.66 In Israel, the Commission for Future Generations operated from 2001 until 2006. The Commission regulated matters that were of special interest to future generations, providing parliament with recommendations on bills and secondary legislation. The Commission had a policing role in stating that it had ‘powers to examine each legislative act wherever there is a suspicion of possible prejudice to future generations’.67 In particular, the Commission performed four basic functions: ‘To give opinions regarding bills brought . . . that are of concern to future generations’; ‘[t]‌o give opinions regarding secondary legislation and regulations . . . that are of concern to future generations’; ‘[t]o provide parliament  . . .  with recommendations on any matter the Commissioner [head of the commission] considers to be of importance to future generations’; and ‘[t]o provide the members of the parliament with advice on matters that are of special interest regarding the future generations’.68 The Commissioner had the 66  Well-​ being of Future Generations (Wales) Act 2015 http://​w ww.legislation.gov.uk/​a naw/​-​2015/​ 2/​part/​1/​enacted http://​gov.wales/​topics/​people-​a nd-​communities/​people/​f uture-​generations-​act/​ ?lang=en (last accessed February 2018). 67   Fitzmaurice (n 26) 151. 68  As cited in ‘Models for Protecting the Environment for Future Generations Science and Environmental Health Network The International Human Rights Clinic at Harvard Law School’ 18



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authority to review any prospective primary or secondary legislation and participate in all top-​level debate on the legislation. The Commissioner had his right to access relevant information: The Knesset Commissioner for Future Generations may request from any organization or body being investigated . . . any information, document or report . . . in the possession of that body and which is required by the Commissioner for the implementation of his tasks; the aforesaid body will give the Commissioner the requested information.69

Former Deputy Commissioner Nira Lamay wrote that the ‘motto was that while the political world was busy with issues of defence and war, we would prepare for the “day after” peace, when future generations would have clean water to drink and clean air to breathe’.70 However, it ceased to exist in 2006 because allegedly the Commission was unnecessary, ineffective, and wasted public funds. In Hungary, the Office of the Parliamentary Commissioner for Future Generations was established in 2008 (the so-​called Green Commissioner) in 2012 and was also incorporated into the Office of the Commissioner for Fundamental Rights, together with the Office of the Parliamentary Commissioner for Civil Rights and the Office of the Parliamentary Commissioner for the National and Ethnic Minorities Rights.71 The Green Ombudsman ‘serves as a consultative body to the Parliament regarding environmental legislation, may initiate proceedings at the Constitutional Court or intervene in court litigations in the interest of future generations and the enforcement of the right to a healthy environment’. However, ombudspersons in Hungary have no authority to issue binding and enforceable resolutions. Nonetheless, the office contributed the identification of possible solutions of environmental conflicts. The Green Ombudsman also participates in ongoing discussions related to the general issues of environmental policy and environmental law and regularly contributes to the legislative process by issuing proposals.72 The Finnish Parliamentary Committee for the Future generates dialogue with the government about problems concerning the future whilst forwarding possible solutions. One of its responsibilities is to prepare Parliament’s response to the Government’s Report on the Future during each electoral period. The themes covered in the parliamentary term 2007–​2011 included climate change and in 2011–​2015 included sustainable growth, which according to some entails questions of intergenerational equity. The Canadian Commissioner of the Environment and Sustainable Development, appointed by the auditor general, ‘provides parliamentarians with objective, independent

http://​w ww.sehn.org/​pdf/​Models_​for_​Protecting_​t he_​Environment_​for_​Future_​Generations.pdf (last accessed October 2016). 69  ibid. 70   See Common Ground News Service 2009 http://​w ww.commongroundnews.org/​article. php?id=25099&lan=en&sid=1&sp (last accessed October 2016). 71   See further http://​jno.hu/​en/​ (last accessed October 2016). 72  See Dr Marcel Szabó, Deputy-​ Commissioner for Fundamental Rights, Hungary, ‘The Way Forward:  Protecting Future Generations through the Institution of Green Ombudsman’ http://​w ww. futurejustice.org/​blog/​g uest-​contribution/​a n-​example-​g uest-​post/​ (last accessed October 2016).

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analysis and recommendations on the federal government’s efforts to protect the environment and foster sustainable development’.73 Finally, there were several proposals for the establishing of the Ombudsperson for Future generations on the UN level. In preparation for the Rio+20 (UN Conference on Sustainable Development), a coalition of Civil Society and the Major Group Youth/​ Children have introduced the idea for the establishment of ‘Ombudspersons for Future Generations’ at global, national, and local level, in order to advocate ‘sustainable development as envisaged and defined by the Brundtland Commission: to enhance the well-​being and prospects of present and future generations to meet their needs, serve as an auditor at the heart of governments and deal with citizens complaints’.74 The following were criteria for Effective Representation of Future Generations: each Ombudsperson for Future Generations needs to be designed in accordance with local or national legal and cultural reality. Sustainable Development Councils, in states where they exist, should be mandated to act as the representative for future generations. The Ombudsperson and its staff should be independent and not hold another governmental post that would influence their freedom of reasoning nor should they have any interests in commercial sectors. The office should be established on the principles of legitimacy and should enjoy large public support, and also of civil society. The selection process of the actual Ombudsperson should be designed to guarantee broad support and citizens who should have the direct access to deliver inputs and receive information. In order to enjoy and increase trust, the office should also be based on the principle of transparency, that is, provide a clear mandate to access all information, especially early in the policy-​making process. It should maintain open relationships with all stakeholders during investigations and should report regularly about its work in a format that is accessible to all citizens. Such an office should also have some authority; the ‘shadow of enforcement’ for the more effective intervention.75

17.8  The United Nations and Future Generations The Major Group Children and Youth suggested the establishment of national level ombudspersons for Future Generations in order to provide an assessment of the long-​ term impacts of public policies and legislative proposals. Their functions would be as follows: responding to citizen petitions, investigating claims of environmental crimes and offences and engaging in either conciliation or litigation. The call was reiterated in the Declaration adopted at the sixty-​fourth annual Conference of the Department of Public Information for Non-​Governmental Organizations held in Bonn, Germany,

 See http://​jno.hu/​en/​ (n 71).  Dr Maja Göpel, Director Future Justice, World Future Council, ‘Ombudspersons for Future Generations as Sustainability Implementation Units’ 12 http://​w ww.stakeholderforum.org/​fi leadmin/​ files/​SDG%204%20Ombudspersons%20for%20Future%20Generations%20Thinkpiece.pdf http://​ w ww.stakeholderforum.org/​ f ileadmin/​ f iles/​ S DG%204%20Ombudspersons%20for%20 Future%20Generations%20Thinkpiece.pdf This is correct (last accessed February 2018). 75  ibid 13. 73 74



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3–​5 September 2011.76 This Declaration proposed the establishment of ombudspersons for future generations at the global, national, and local levels, who will support sustainable development, as envisaged and defined by the Brundtland Commission, to enhance the well-​being and prospects of present and future generations to meet their needs, serve as an auditor at the heart of governments and deal with citizens’ complaints.77 It was submitted that the establishing of the High Commissioner for Future Generations (HCFG): would further the global objectives of intergenerational justice by encouraging focus on issues that are of critical importance to the wellbeing of future generations but are often side-​lined within the structure and procedures of present political and legal systems. The existence of such an office at the United Nations would help address, in a focused manner, the long-​term consequences of present-​day actions, by spotlighting impact on the future in tangible, non-​abstract terms and by rallying support for integrating sustainability into planning decisions by governments, business, and individuals. The office would also play an advocacy role by highlighting the moral imperative of leaving behind a healthy world in which future generations will live out their lives. Finally, such an office may function best in the context of the United Nations, where the vision of a better tomorrow and planning for future generations are in keeping with the United Nations Charter and are among the driving values of the Organization’.78

The core powers and responsibilities of HCFG would include: international agenda-​ setting and leadership; monitoring, early warning, and review; public participation; capacity for innovation at national and sub-​national levels; public understanding and evidence; and reporting.79 As an international entity within the UN system, the HCFG is envisaged thus as having significantly different functions from similar national institutions set up to serve future generations. Supporters argue that ‘the political dynamics, responsibilities, and powers of national institutions would largely be absent at an international level, with a High Commissioner for Future Generations . . . playing a more limited role’.80 Other approaches addressing the needs of future generations include raising awareness and focus on future generations within existing institutions and offices, recognition of the needs of young people and future generations in the Sustainable Development Goals, or establishing a special envoy. Proponents for the establishment of a HCFGs argue, however, that this will be the most effective way of protecting the interests of future generations.81 There was submitted a wide spectrum of options.

76  See http://​w ww.unric.org/​it/​messaggi-​discorsi-​dichiarazioni-​e-​commenti-​del-​segretario-​generale-​ 2013/​30120-​secretary-​generals-​message-​on-​t he-​worlds-​ocean-​day-​08-​june-​2014 (n 1)  paras 54 and 55, at 35. 77   ibid para 55, at 35–​36. 78   Halina Ward, ‘Committing to the Future We Want: A High Commissioner for Future Generations at Rio+20’, Discussion Paper (2012), as cited in n 1, para 56, at 36. 79 80 81   ibid., para 57, at 36.   ibid para 58, at 37–​38.   ibid para 60, at 38–​39.

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The idea which garnered the most support was setting up a Commissioner for Future Generations. The Commissioner would advocate support for intergenerational solidarity through interactions with the member states and other stakeholders, as well as across the UN entities and specialized agencies. Such an office could initiate research and foster expertise on policy practices to enhance intergenerational solidarity in the context of sustainable development on the international, regional, national, and sub-​national level and disseminate this expertise as deemed appropriate. It could, on request from the UN (or any of its entities, specialized agencies, or affiliated organizations), offer advice on implementation of existing intergovernmental commitments to enhance the rights and address the needs of future generations and could, upon request, also offer its support and advice, including to individual member states on best practices and policy measures to enhance intergenerational solidarity. It could also undertake research on policy practices to enhance intergenerational solidarity in the context of sustainable development on the international, regional, national, and sub-​ national level and disseminate this expertise as deemed appropriate.82 Another option, less supported, was the establishment of a Special Envoy of the Secretary General on Future Generations to serve ‘as a global independent advocate for intergenerational solidarity, with a particular concern for the welfare of future generations, and would promote and facilitate the inclusion of best practices in policy-​making at all levels. The Special Envoy would promote and facilitate the engagement and full participation of all stakeholders in the UN processes related to intergenerational solidarity and future generations, such as the High-​level Political Forum, as well as conduct public advocacy to raise awareness of measures needed globally’.83 Yet another proposal was the setting up of the Agenda item in high-​level political forum. The high-​level political forum ‘could address intergenerational solidarity and the needs of future generations as a recurring agenda item, which would serve to keep the issue on the agenda of international decision-​making and promote its integration within the sustainable development framework. Specifically, intergenerational solidarity and future generations could be addressed through thematic plenary or roundtable discussions and result in possible recommendations included in the Forum’s declarations’.84 Finally, the inter-​agency coordination on the needs of future generations was suggested. ‘The Secretary-​General could be invited to promote intergenerational solidarity and future generations within the UN System through the Chief Executives Board (CEB) and its mechanisms to ensure policy coherence within the system.’85 There is also a specific question of the rights of future generations in relation to the oceans. The present author is of the view that the suggestion of Professor Brown-​ Weiss, who supported the creation of an institution of an Ombudsman to secure the rights of future generations at the international for a, is a very valid proposal. Such an institution would participate in negotiations of any Convention which would relate to ocean governance. In setting up such a body, states must be mindful of the   ibid para 63, at 39–​40.   ibid para 67, at 42.

82 85

83

  ibid para 65, at 41.

84

  ibid para 66, at 41.



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interests of multiple stakeholders participating in ocean activities and the principle of sustainable development, which includes the principle of sustainable use. Therefore, the Oceans Ombudsman should balance the needs of present and future generations and the sustainable use of natural resources. Various interests of future generations should be taken into account such as their wealth, welfare, education etc. It would be of a benefit to set up a permanent body (similar to the ISA) which would oversee and protect the rights of future generations and analyse reports from states how they implement in their legislation regarding oceans the rights of future generations, that is, such a body would also act similarly to the Commission on Sustainable Development (at present High-​level Political Forum on Sustainable Development) which analyses the reports from states regarding implementing sustainable development in their countries. In conclusion, it may be said that the question of national legislations and the institutional aspect of an establishment of an ombudsperson for future generations is a complex and varied matter. There is no one single pattern of the institutional development. There is also quite little practice as there are not many institutions set up to exclusively deal with the interests of future generations. Some of the national legislations include the interests of future generations. Within the organs dealing with sustainable development, the most instructive was the institution set up in Israel, which although ceased to exist, developed an extensive list of functions for the Ombudsman for Future Generations. However, there is no doubt that there is a real need to establish such an institution at the international level, within the United Nations. Growing pollution and the destruction of the environment call for the United Nations to take an action, as evidenced by the Report of the Secretary-​General. This is supported by civil society and non-​governmental organizations.

17.9 Conclusions There are a few subjects in international and national laws, and philosophy that have resulted in such vibrant and robust discussions as the rights of future generations. It is a multidisciplinary subject and confining it to only the legal dimension does not reflect the true nature of the problem. It has a very important aspect of ethics in it and distributive justice. However, as the review of views in this report indicate, the theoretical aspect of the concept of intergenerational equity results in robust but inconclusive debate. Therefore, the way forward is to look for practical solutions, as evidenced by the reports of the UN Secretary-​General. It is needed and it is feasible.

Index AoA (assessment of assessments)  50 ABE-​LOS (Advisory Body of Experts on the Law of the Sea)  34, 40n, 46, 59 ABNJs (areas beyond national jurisdiction)  18, 175–​9, 212, 216–​22,  225–​6 ABS (access to and benefit sharing)  219, 222,  225– ​6 abuse of rights, concept of  345–​6 ACP (African, Caribbean, and Pacific)  319 ADUs (associate data units)  48 AEEs (aircraft engine emissions)  74, 76 aerial hot pursuit concept  72n AISs (artificial islands and structures)  66, 68,  74–​5 ALLFISH (Alliance for Responsible Fisheries)  332 AMCEN (African Ministerial Council on the Environment)  171–​2,  177 APFIC (Asia-​Pacific Fisheries Commission)  21–​2 armed robbery against ships, definition of  307n ASARs (aeronautical operations)  70 ASLs (archipelagic sea lanes)  66–​7, 72n, 78 aviation facilities in oceans, concept of  67 Benguela Current Commission (BCC)  91, 93, 95 biological diversity, definition of  327 blue economy concept  53 Blue Growth Initiative  10–​11 Brown-​Weiss’ theory of trust  359–​60,  366 CBD (Convention on Biological Diversity)  12n, 25, 27, 30, 37, 46, 59, 86, 169, 182, 212n, 222 CCAMLR (Commission for the Conservation of Antarctic Marine Living Resources)  13, 24, 176, 188 CCLME (Canary Current Large Marine Ecosystem)  168 CCP (Container Control Programme)  239,  241–​2 CCPCJ (Commission on Crime Prevention and Criminal Justice)  227–​31,  240 CCRF (Code of Conduct for Responsible Fisheries)  11n, 12n, 15–​17, 19, 20, 22–​3, 27 CDIP (Committee on Development and Intellectual Property)  213, 224 CECAF (Fishery Committee for the Eastern Central Atlantic)  21,  167–​8 chaos theory  359 Chicago Convention (Convention on International Civil Aviation)  61–​72, 77, 144n Chimera theory  359 CHM (common heritage of mankind)  362 concept/​principle of  218, 345, 364 CITES (Convention on International Trade in Endangered Species)  6, 24, 25n, 27, 169, 182, 234 class, concept of  368

CMS (Convention on the Conservation of Migratory Species of Wild Animals)  169–​71,  182 CND (Commission on Narcotic Drugs)  229, 230n COAST (Collaborative Actions for Sustainable Tourism)  200 coastal zone management approach  334 COFI (Fishery Committee)  5–​6, 13, 16–​17, 20, 22 COMHAFAT (Ministerial Conference on Fisheries Cooperation among African States Bordering the Atlantic Oceans)  167–​8 common interest of mankind, concept of  364 see also CHM (common heritage of mankind) conditionalities, definition of  128n cooperative approach  35 COREMAP approach  336 COREP (Regional Fisheries Committee for the Gulf of Guinea)  167–​8 CORSIA (Offsetting and Reduction Scheme for International Aviation)  73 CPA (comprehensive plan of action)  252, 255 CPP (Counter Piracy Programme)  240 CPPS (Permanent Commission for the South Pacific)  158, 163, 174–​5, 177, 189 customary law principles  253 danger areas  69 decent work, concept of  102 development, definition of  84 difference principle  360 DISERO (Disembarkation Resettlement Offers)  250–​1 distress situation, definition of  256 DMLC (declaration of maritime labour compliance)  116 DNAs (designated national agencies)  47 DOALOS (Division for Ocean Affairs and the Law of the Sea)  257, 319 EAFs (ecosystem approaches to fisheries)  17 EASAC (European Academies’ Science Advisory Council)  350, 351n EBSAs (ecologically or biologically significant marine areas)  169 ecosystem approach  10–​13, 25–​7, 154, 160, 165–​7, 172, 174, 180, 192–​3, 313n, 330, 337 definition of  330 ecosystem-​based management approach  38n, 45–​6, 53, 55, 89, 95, 173, 194 ecosystems, definition of  165 EEZ (Exclusive economic zone)  46, 63n, 86, 88–​9, 178, 307n, 323–​4, 326 environmental health, concept of  272 equal rights and self-​determination of peoples  347

378 Index ethics of international maritime law  339–​56 context  339–​42 education and upbringing  356 ethical flavour of international law  342–​4 law of the sea  344–​8 maritime law  348–​50 ocean governance  350–​6 exclusive flag ship jurisdiction, principle of  307n FAL (Facilitation Committee)  254, 255n FAO (Food and Agriculture Organization of the United Nations)  3–​27 basic components  4–​6 membership 5 structure  5–​6 context  3–​4,  27 forum for developing international instruments, norms and standards  8–​26 information collection, analysis and dissemination  6–​8 legal and policy instruments  14–​26 Code of Conduct for Responsible Fisheries (CCRF)  15–​20 compliance agreement  14–​15 FAO and regional fisheries bodies  21–​2 Port State Measures Agreement  20–​1 relationship to inter-​governmental bodies  22–​6 normative influence  11–​14 ecosystem approach to fisheries management  12–​13 IUU fishing  13–​14 precautionary approach  11–​12 statistics  6–​8 farm-​to-​table approach  277 FENSA (Framework of Engagement with Non-​State Actors)  270 FIR (flight information region)  69 fisheries management, ecosystem approach to  12–​13 freedom in the high seas, principle of  324 future generations, concept of  360 GAR (Global and Alert Response)  280 GCOS (Global Climate Observing System)  46 GDMSS (Global Maritime Distress Safety System)  144–​51 GEBCO (General Bathymetric Chart of the Ocean)  37, 49 GEF (Global Environment Facility)  37, 43, 50, 54, 85–​98, 101, 161, 200, 335–​6 genetic resources, definition of  212n, 221n genuine link, concept of  291 GEO (Group of Earth Observations)  45 GEOSS (Global Earth Observation System of Systems)  45 GESAMP (Joint Group of Experts on the Scientific Aspects of Marine Environment Protection)  37, 43, 267n, 274, 282 GFCM (General Fisheries Commission for the Mediterranean)  21, 166, 168 GHGs (greenhouse gas emissions)  72–​4,  76 GLEWS (Global Early Warning System for Major Animal Diseases)  280 global public goods  93

GLOSS (Global Sea Level Observing System)  47 GMP (good manufacturing practice)  278 GOARN (Global Outbreak Alert and Response Network)  280 GOBI (Global Ocean Biodiversity Initiative)  42, 55 good neighbourly relations principle  348 GOOS (global ocean observing system)  37, 44–​7, 51, 59, 60 GOST (Global Observatories on Sustainable Tourism)  203 GPA (Global Programme of Action on the Protection of the Marine Environment from Land-​based Activities)  153, 170, 179, 192 GRs (genetic resources)  214–​23 GRAs (GOOS Regional Alliances)  45 GT (gross tonnage)  117 HAB (harmful algal bloom)  42, 51, 267 HACCP (hazard analysis critical control point)  278 Hamburg Rules (United Nations Convention on the Carriage of Goods by Sea)  285, 292–​3, 298, 299, 301–​2 harmonization  98 HCFG (High Commissioner for Future Generations)  373 health, definitions of  271 HIPCs (heavily indebted poor countries)  129, 131 HNS Convention (Hazardous and Noxious Substances Convention)  305 holistic approach  16, 134, 178, 199, 232, 338, 342, 356 human rights, concept of  341 IBRD (International Bank for Reconstruction and Development)  322–​3,  333 ICAM (integrated coastal area management)  53–​4,  57 ICAO (International Civil Aviation Organization)  61–​78, 119, 144n, 150–​2 aviation  66–​8 context/​background  61–​2 environment  72–​5 air quality  74 climate change  73–​4 noise  74–​5 general comments and conclusions  77–​8 global ocean governance and  62–​5 outlook  75–​7 civil-​military cooperation in air and sea  76 knowledge building for environmental protection and management  75–​6 preparedness for emerging technological challenges 77 safety/​security  68–​72 areas bearing hazards to civil aviation  69–​70 right of hot pursuit  71–​2 search and rescue  70–​1 three pillars of interaction  65–​75 ICC (International Chamber of Commerce)  296–​8

Index ICEM (Intergovernmental Committee for European Migration)  244 ICSID (International Centre for the Settlement of Investment Disputes)  322–​3 IDA (International Development Association)  322–​3, 333, 335 IFC (International Finance Corporation)  322–​3 IFPRI (International Food Policy Research Institute)  326 ILBI (internal legally binding instrument) 218–​19, 221,  225–​6 illegal fishing, definition of  18 illegal, unreported and unregulated (IUU) fishing  13–​14,  20 ILO (International Labour Organization) 102–​20, 257, 269n, 349 context  102,  119–​20 fishers’ work and seamen’s books  116–​19 biometric standards for seafarers’ identity documents  118–​19 Work in Fishing Convention  116–​18 international protection of maritime labour  103–​5 Maritime Labour Convention  105–​16 compliance and enforcement  110–​12 format of  107–​8 Geneva Accord  105–​6 hard law  107–​8 ILO’s Joint Maritime Commission  105–​6 labour standards  110–​12 new blueprint for maritime standard-​ setting  106–​7 new seafarers’ complaint options  112 Regulations and the Code  112–​16 revision process  109–​10 scope of  108 soft law  107–​8 steering the course and room for manoeuvre 109 IMF (International Monetary Fund)  121–​35, 293n, 323 Bretton Woods institutions  121–​4 context  121, 135 historical background  121–​4 institutional profile  124–​31 functions  127–​31 low-​income member countries eligible for concessional loans  130 member countries eligible for HIPC assistance 131 membership  124–​5 organs  125–​7 voting power allocations  127 role in global ocean governance  132–​4 IMO (International Maritime Organization)  6, 9, 23, 27, 31, 37, 43, 50, 64n, 65, 67n, 70, 71n, 73n, 76n, 78, 85, 87, 91, 98, 100, 101, 106, 107, 109, 111n, 113n, 119, 136, 139, 145n, 147, 148, 149, 150, 151n, 152, 192, 238, 251, 252, 253, 254, 255, 256, 257, 274, 282, 285, 294, 298n, 304n, 307n, 308n, 313, 319, 342, 343, 346n, 348 IMSO (International Mobile Satellite Organization)  136–​52 context 136

379

history  137–​8 IMSO 2016  147–​52 INMARSAT and  143–​7 maritime communications  138–​9 technical background  136 in fraudem legis agree  346 INFOSAN (International Food Safety Authorities Network)  280 INMARSAT (International Maritime Satellite Organization)  136–​52 see also IMSO (International Mobile Satellite Organization) INSTO (International Network of Sustainable Tourism Observatories)  202–​3 interception, definition of  247, 257n intergenerational equity  357–​75 constitutional and institutional protection of rights  370–​2 context  357–​8,  375 environmental protection  358–​60 future generations, protection of  363–​75 international case law  363–​7 international conventions  360–​2 national case law  367–​9 principle of  360–​2 soft law instruments  360–​2 sustainable development  358– ​60 United Nations  372–​5 UNCLOS and  362–​3 international approach  41 IOC (Inter-​governmental Oceanographic Commission)  31–​52 collaboration with other international bodies  36–​8 data management  47–​9 Bathymetric data of the ocean  49 data exchange policy  47 International Oceanographic Data and Information Exchange Programme  47–​8 Ocean Biogeographic Information System (OBIS)  48–​9 definition of  32 information and warning systems  51–​2 GOOS and HAB services  51–​2 Tsunami warning systems  52 international collaboration  35–​8 IOC strategy  38–​9 participation in the UN system  35–​6 observation systems  44–​7 GOOS  44–​6 GOOS-​related components  46–​7 ocean assessment  49–​51 assessment of assessments  49–​50 OBIS contribution  51 transboundary waters assessment  50–​1 world ocean assessment  50 ocean governance-​related activities of the IOC  38–​52 ocean research, legal basis of  39–​4 4 climate change  40 eutrophication and deoxygenation  42–​3 harmful algal bloom (HAB)  42 ocean acidification  41 ocean biodiversity  42 ocean carbon  40–​1

380 Index IOC (cont.): ocean research, legal basis of (cont.) participation in GESAMP activities  43 regional activities  43–​4 world ocean science report  44 see also UNESCO IOCAFRICA (Sub-​Commission for Africa and the Adjacent Islands)  34 IOCCP (International Ocean Carbon Coordination Project)  40 IOCINDIO (Committee for the Central Indian Ocean)  35, 58 IODE (International Oceanographic Data and Information Exchange)  47–​8, 50, 57, 59 IOM (International Organization for Migration)  238,  256–​7 IOTC (Indian Ocean Tuna Commission)  22 IP (intellectual property)  140, 143n, 209–​16, 219, 221, 224 IPHAB (Intergovernmental Panel on Algal Blooms)  42 IPOAs (international plans of action)  10, 16–​20, 22–​4,  27 IRO (International Refugee Organization)  243 ISA (International Seabed Authority)  62n, 362–​3,  375 ISPS Code (International Ship and Port Facility Security Code)  306 issue-​oriented approach  38 ITLOS (International Tribunal for the Law of the Sea)  346n, 363 ITPGRFA (International Treaty on Plant Genetic Resources for Food and Agriculture)  222 ITU (International Telecommunication Union)  137, 139, 146, 150n, 152 IUU (illegal, unreported, and unregulated)  4, 9–​11, 13–​14, 17–​23, 27, 118, 312, 315–​18, 320 JCOMM (Joint Technical Commission for Oceanography and Maritime Meteorology)  36,  47–​8 just savings principle  360 justice, concept of  360 Kuwait Action Plan (Action Plan for the Protection and Development of the Marine Environment and the Coastal Areas)  173 Kuwait Convention (Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution)  158, 163, 167n, 168, 173, 189 LDCs (least developed countries)  284, 308, 312, 316–​17,  321 Lima Convention (Convention for the Protection of the Marine Environment and Coastal Areas of the South-​East Pacific)  158, 163, 174,  176–​7 liner conference, definition of  289 listening and learning approach  134 LLDCs (landlocked developing countries)  284 LMEs (large marine ecosystems)  54, 81, 84, 88–​101,  166–​8 concept and approach  88–​9, 92–​3, 167

LOA (length overall)  117 LOSC (Law of the Sea Convention)  64–​9, 71, 74–​ 5, 77, 247, 252–​3 see also UNCLOS loyal cooperation principle  348 LRIT (Long-​Range Identification and Tracking of Ships)  147–​52 management of marine and coastal assets  330 MAPS (mainstreaming, acceleration, and policy support)  101 mare clausum doctrine  345 mare liberum doctrine  345 marine spatial planning, concept of  54 Maritime Labour Convention see International Labour Organization (ILO) MAT (mutually agreed terms)  58, 215 MDGs (millennium development goals)  25–​6, 204, 206, 281, 311 MEAs (multilateral environmental agreements)  153, 160, 169–​71, 193 MGRs (marine genetic resources)  212,  216–​26 MIGA (Multilateral Investment Guarantee Agency)  322–​3 MLC (maritime labour certificate)  115–​16,  120 MLC (Maritime Labour Convention)  106–​20,  349 moral reasoning theory of international law  344 MPAs (marine protected areas)  55, 173, 176–​7 MPP-​EAS (Prevention and Management of Marine Pollution in the East Asian Seas)  91 MSAR (maritime operations)  70–​1 NEAFC (North-​East Atlantic Fisheries Commission)  166, 168 NGOs (non-​governmental organizations)  16, 20, 202, 239, 269–​70, 277, 283, 310, 320 no more favourable treatment principle  115, 117 NODCs (national oceanographic data centre)  47–​8 non-​refoulement principle  246, 248–​9, 255, 257 OBIS (Ocean Biogeographic Information System)  37n, 48–​9, 51, 57 ocean governance concept of  28, 85, 165, 214, 274 integrated approach to  87 ODINs (oceanographic data and information networks)  48, 57 OFMP (Pacific Oceanic Fisheries Management Project)  97 OSPAR Convention (Convention for the Protection of the Marine Environment of the North-​East Atlantic)  158, 163, 168, 176 Paris Convention (International Air Navigation Convention)  61 patent system  215n PCBs (polychlorinated biphenyls)  265, 278n PCT (Patent Cooperation Treaty)  211 PEMSEA (Partnerships in Environmental Management for the Seas of East Asia)  91–​9 people-​centred approach  231 PIC (prior informed consent)  215 piracy, definition of  307n

Index pollution, definition of  74n pollution of the marine environment, definition of  298 precautionary approach  11–​12, 16–​17, 23, 27, 98, 174, 313n PROFISH (Global Programme on Fisheries)  331–​2 PROG (partnership for regional ocean governance)  171, 175, 177 public trust doctrine  369 RACs (regional activity centres)  163–​4 Ramsar Convention (Convention on Wetlands of International Importance)  170, 193, 207 RASRO (Rescue at Sea Resettlement Offers)  251–​2 RCUs (regional coordination units)  162 RECOFI (Regional Commission for Fisheries)  22, 167–​8, 173 refugees and displaced persons, definition of  243, 246 regime-​building approach  89–​99 regional approach  45, 97, 153–​4, 156, 165–​6, 241 resources, definition of  219 responsible fishing, concept of  8–​9 RFBs (regional fisheries bodies)  9,  20–​2 RFMOs (regional fisheries management organizations)  13–​24, 27, 93, 160, 194 Rio+20 (UN Conference on Sustainable Development)  25, 92, 98, 202, 205, 313 RNODCs (responsible national oceanographic data centres)  48 ROPME (Regional Organization for the Protection of Marine Environment)  158, 163–​4, 167–​8, 171, 173–​4, 189 RSSDs (regional seas strategic directions)  158– ​60,  192–​4 safety for rescued persons  254 Sanitation Safety Plans  276 SAP (strategic action programme)  89–​101 SAR (search and rescue)  66, 71, 76–​78, 148,  252–​7 SAR (special administrative region)  70–​1 SARPs (standards and recommended practices)  65, 68, 77n, 152n SCOR (Scientific Committee on Ocean Research)  37, 40, 42, 56n SCP (sustainable consumption and production)  164, 199 SDGs (sustainable development goals)  26, 78n, 133, 154, 157, 160, 167, 171, 173, 175, 180, 181, 183, 196, 198–​9, 212–​13, 223–​6, 281–​2, 311–​14,  317–​21 SDS SEA (Sustainable Development Strategy for the Seas of East Asia)  91–​2, 95, 97, 99 SEA (seafarers’ employment agreement)  111, 113, 115 seafarer, definition of  108 sectoral approach  165, 167, 173, 179, 232 serious crime, definition of  233 ship, definition of  108 shipowner, definition of  108 SIDs (seafarers’ identity documents)  116,  118–​19

381

SIDSs (small island developing states)  194, 199, 203, 205–​7, 225, 284, 300, 308–​12, 314n, 316, 317,  320–​1 SIOFA (South Indian Ocean Fishery Agreement)  7, 22 SMEs (small and medium-​sized enterprises)  316 SMTAs (standard material transfer agreements)  222 social contract theory  360 SOLAS (International Convention on the Safety of Life at Sea)  106, 139, 145, 147, 252–​5, 306 solidarity see intergenerational equity SOOP (ship of opportunity programme)  47 SPAMIs (Specially Protected Areas of Mediterranean Importance)  176 SPREP (South Pacific Regional Environment Programme)  90n, 94n, 158, 162–​3, 190 SRFC (Sub-​regional Fisheries Commission)  168 STC (Special Tripartite Committee)  109, 110 STP (Sustainable Tourism Programme)  199 strategic approach  56 SUA Convention (Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation)  238, 307n substantial equivalence, concept of  107, 109 sustainable development principle  8, 351, 357, 366, 370, 375 definition of  357–​8, 361, 372–​3 sustainable tourism, definition of  202 sustainable use of living resources, principle of  8–​9 sustainable use principle  375 SWIOFish (Shared Growth Project for the Africa region)  334 SWIOFC (South-​west Indian Ocean Fisheries Commission)  21, 166, 168 systemic interpretation principle  237 TCEs (traditional cultural expressions)  214–​16 TDA (transboundary diagnostic analysis)  89–​ 90, 94–​7,  100–​1 planning approach  89–​90 TDB (Trade and Development Board)  318 TEMA (training, education, and mutual assistance)  56 territory, definition of  68 thalassotherapy, concept of  264 TK (traditional knowledge)  214–​16,  221n TPP (Trans-​Pacific Partnership)  318 transparency principle  372 tripartism  102 TRIPs (Trade-​related Aspects of Intellectual Property Rights)  210 trust between generations, concept of  359, 365 see also intergenerational equity TWAP (transboundary waters assessment programme)  50–​1 UAVs (unmanned aerial vehicles)  77 UNCAC (United Nations Convention against Corruption)  228–​9, 231, 233, 240 UNCED (UN Conference on the Environment and Development)  9, 30, 32, 36, 38, 53, 58, 348, 363

382 Index UNCTAD (United Nations Conference on Trade and Development)  284–​21 Ad Hoc Expert Meeting on Oceans and Sustainable Fisheries  319 admiralty law  304–​5 background  284–​6 carriage of goods  298–​303 climate change  307–​11 general average  304–​5 International Legal Framework for Oil Pollution Damage from Tankers  305 international trade law  298–​303 marine insurance  304–​5 maritime and supply-​chain security  306–​7 container security  306 costs and trade-​related financing  306–​7 initiatives 306 international developments  306 ISPS implementation  306–​7 maritime security  306–​7 maritime transport  307–​11 multimodal transport  301–​2 oil pollution  305 outlook  311–​14 policy research and advice  297–​311 recommendations, list of  319 role in the governance of trade in fish  315–​19 expert dialogue pillar  318–​19 Oceans Economy report (2014)  317 policy research pillar  317–​18 Sustainable Fisheries report (2015)  317 Trade and Environmental Review (2016)  318 role in ocean governance  286–​97 consensus building in addressing harmful incentives 320 contracting states  288–​9 economic aspects of shipping  287–​91 enforcement of maritime claims  294 ICC Rules for Multimodal Transport Documents 297 International Convention on Arrest of Ships  294–​5 International Convention on Maritime Liens and Mortgages  294 international conventions  286–​97 liability for carriage of goods by sea and multimodal transport  291–​3 Minimum Standards for Shipping Agents 296 Model Clauses on Marine Hull and Cargo Insurance  296–​7 model rules  286–​97 non-​mandatory standards  295–​7 standards  286–​97 UN Convention on the Carriage of Goods by Sea (Hamburg Rules)  292–​3 UN Convention on a Code of Conduct for Liner Conferences  287–​90 UN Convention on Conditions for Registration of Ships  290–​1 UN Convention on Multimodal Transport of Goods  291–​2 UNCTAD XIV Mandate  320–​1 ship-​source pollution: liability and compensation for  304–​5

technical advice and assistance (Rotterdam Rules)  302–​3 transport documents in international trade 301 transport law and policy, studies and reports  299–​300 UNCTAD/​ICC Rules (UNCTAD/​ICC Rules for Multimodal Transport Documents)  296–​7 UNDCP (United Nations International Drug Control Programme)  227–​8 undermining, definition of  14 UNDP (United Nations Development Programme)  81–​101 basic approach to governance  82–​6 context  81–​2,  99–​101 current and former activities  87–​99 history of  82–​6 jurisdiction approach  87–​9 principles and objectives  89–​99 regime-​building approach  89–​99 regulatory frameworks  89–​99 sector specific approaches to large marine ecosystems  87–​9 UNDG (UN Development Group)  101 UNEP (United Nations Environment Program)  12n, 17n, 25n, 31, 37, 42–​4, 46, 49–​51, 160n, 169–​71nn, 178–​82nn, 186, 200, 206, 234n, 273–​4nn, 310, 319–​20 UNEP Regional Seas Programme  153–​94 action plans and convention  161 areas beyond national jurisdictions (ABNJs)  175–​9 ABNJ and regional seas programmes  176–​8 overview  175–​6 UN Environment work on ABNJs  178–​9 context  153–​4,  179–​81 institutional arrangements  162–​4 decision-​making bodies  162 regional activity centres  162–​4 secretariats 162 mandate of UN Environment on Oceans and Seas  154–​7 marine ecosystems  167–​9 multilateral environmental agreements (MEAs)  169–​71 Conservation of Migratory Species of Wild Animals (CMS)  170–​1 Convention on Biological Diversity  169–​70 developed under UNEP  182 overview  157–​8,  186–​91 regional activities centres (RACs)  164 regional ocean governance  165–​8 overview  165–​6 regional fisheries bodies  166–​8 regional ocean policies and strategies  171–​5 African ocean governance strategy  171–​2 overview 171 Partnership for Regional Ocean Governance (PROG) 175 Permanent Commission for the South Pacific (CPPS)  174–​5 Regional Organization for the Protection of the Marine Environment (ROPME)  173–​4 Strategic Ecosystem Management project  172–​3

Index regional seas programmes  158 regional seas strategic directions (RSSDs)  158–​61,  192–​4 sustainable development goals (SDGs)  183–​5 UN environment-​administered regional seas programmes 163 UNESCO (United Nations Educational, Scientific and Cultural Organization) 28–​60, 65, 78, 98, 220n, 269n, 274n capacity development  55–​8 need for assistance  55–​6 regional focus  57–​8 specific activities  57 strategic approach  56 transfer of marine technology  58 context  28–​9,  59–​60 need for ocean knowledge  28–​9 ocean governance  28 enhancement of ocean governance  52–​5 integrated coastal management  53–​4 large marine ecosystems  54–​5 marine spatial planning  54 regional partnerships  55 UN activities  52–​3 existing legal commitments  29–​31 marine conventions  30 soft law  30–​1 UNCLOS  29–​30 purpose and organizational structure  32–​5 membership and financing  33 organizational structure  33–​5 purpose and functions  32–​3 see also Inter-​governmental Oceanographic Commission UNFCCC (United Nations Framework Convention on Climate Change)  73n, 160, 310, 360 UNGA (United Nations General Assembly)  4n, 14n, 17n, 22–​3nn, 26n, 30–​1nn, 33n, 36n, 50n, 56n, 58n, 65n, 148, 203–​4, 227–​35, 243–​5nn, 274n, 281n, 284–​5nn, 311–​14nn, 362, 365 UNHCR (United Nations High Commissioner for Refugees)  243–​57 contribution to ocean governance  257 creation and establishment  243–​5 Executive Committee, role of  246–​7 Irregular Migration by Sea Crises  248–​52 Haitian crisis  248–​9 Indochinese crisis  249–​52 progressive expansion of mandate  245–​6 Search and Rescue (SAR) services  252–​7 inter-​institutional dialogue  254–​7 international legal framework  252–​4 normative developments  254–​7 United Nations High Commissioner for Refugees (UNHCR)  243–​57 UNICPOLOS (Informal Consultative Process on Ocean Affairs and the Law of the Sea)  36 UNIDO (United Nations Industrial Development Organization)  200, 269n, 274n UNKRA (United Nations Korean Reconstruction Agency)  244

383

UNODC (United Nations Office on Drugs and Crime)  227–​42,  257 2030 Agenda for Sustainable Development  230–​2 context 242 contribution to ocean governance  238–​41 container control programme  239–​40 global maritime crime programme  240–​1 establishment of  227–​9 governance and budget  229–​30 ocean governance  232–​4 prevention and repression of crime at sea  232–​4 UNTOC and UNCLOS  234–​8 UNREF (United Nations Refugee Emergency Fund)  244 unregulated fishing, definition of  18 unreported fishing, definition of  18 UNRWA (United Nations Relief and Works Agency for Palestine Refugees in the Near East)  244 UNTOC (United Nations Convention against Transnational Organized Crime)  228–​9, 231, 233–​4, 237–​8, 240, 242 UNWTO (World Tourism Organization)  195–​208,  319 aims  195–​6 context 195 ecotourism and protected areas  204–​5 environmental protection  204–​5 International Network of Sustainable Tourism Observatories (INSTO)  202–​4 meetings and conferences  206–​7 ocean governance  199–​202 overview  195–​8 poverty eradication  204–​5 sea-​related tourism  198–​208 structure and governance  196–​8 Executive Council  197 General Assembly  197 membership 198 Secretariat  197–​8 sustainable development: goals  198–​9 of tourism  199, 202–​8 tourism: employment 199 promotion of economic growth  199 small island developing states (SIDS)  205–​7 sustainable consumption and production (SCP) 199 wetlands  207–​8 UN Conference on Small Islands Developing States  207 Vienna Convention (Vienna Convention for the Protection of the Ozone Layer)  153 VMEs (vulnerable marine ecosystems)  17–​18, 25, 330 WCED (World Commission on Environment and Development)  357–​8 WCO (World Customs Organization)  239

384 Index WCPF Convention (Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean)  93 WCRP (World Climate Research Programme)  40 WDCs (world data centres)  48 WECAFC (Western Central Atlantic Fishery Commission)  21,  167–​8 WGISL (Working Group on International Shipping Legislation)  285 WHO (World Health Organization)  261–​83 contribution to GOC  273–​81 environmental health  272–​3 general assessment  273–​5 international standards for safety of seafood  276–​8 quality of ocean and coastal waters  275–​6 ship sanitation  280–​1 specific areas of intervention  275–​81 waterborne and foodborne diseases  278–​80 governing texts and bodies  270–​2 institutional profile  268–​70 oceans and human health  261–​8 food and water  262–​3 health benefits  262–​4 marine-​derived bioproducts  263–​4 recreational water activities  264 public health risks  265–​8 anthropogenic and natural hazards  265–​8 atmospheric pollution  268 chemical pollution  265–​6 climate change  268 harmful algal blooms (HAB)  267 microbiological pollution and waterborne pathogens  266–​7 natural events  268 pollution from vessels  267 Sustainable Development Goals (SDGs)  281–​2 UN system, position within  268–​70 visible role of  282–​3 WOA (World Ocean Assessment)  50–​1 World Bank  322–​38 Blue Growth and sustainable economic expansion  330–​2 capacity building  331 effective governance systems  331 food security  331 healthy ocean  331 innovative systems  331 long-​term viability  331 social equity  331 sustainable livelihoods  331 sustainable use of marine and coastal resources 331 institutional overview and structure  322 mission and objectives  323 natural assets, ecosystems, and economies  323–​30 challenges 329 climate change  328 coastal economies  323–​5 coastal states  323–​5

duties and obligations  323–​5 food security  325–​7 marine biodiversity and  327–​8 marine and coastal area asset management  329–​30 overview 338 partners 332 position in UN system  323 projects  332–​6 Coastal and Biodiversity Management Project in Guinea-​Bissau  333 Coral Reef Rehabilitation and Management Programme—​Coral Triangle initiative 336 First South West Indian Ocean Fisheries Governance and Shared Growth Project  334–​5 Integrated Coastal Zone Management—​ India  334 Ocean Partnerships for Sustainable Fisheries and Biodiversity Conservation Project 335 West Africa Coastal Areas Management Programme  335–​6 West Africa Regional Fisheries Programme  333–​4 strategy towards healthier oceans  330–​8 general assessment  337–​8 World Intellectual Property Organization (WIPO)  209–​26 2030 Agenda for Sustainable Development  223–​5 capacity building  222–​3 definition and scope  209–​14 future role in evolving sustainable ocean governance  225–​6 legal foundations and mandate  212–​14 normative work  214–​22 assessment of key issues  220–​1 dispute resolution under ILBI  221–​2 genetic resources, protection of  214–​17 historical background on MGRs in UNCLOS 219 intellectual property protection  214–​17 marine biological diversity of ABNJs  217–​20 traditional cultural expressions  214–​17 traditional knowledge  214–​17 WIPO Arbitration and Mediation Center  221–​2 ocean-​related matters and  214 practical activities and tools  222–​3 share of fee income  211 share of PCT income  211 Sustainable Development Goals  223–​5 work of  214–​23 WSSD (World Summit on Sustainable Development)  30, 36, 49, 58, 192–​4 WTO (World Trade Organization)  6, 19, 24, 27, 126n, 195, 210, 221, 315–​20 XBTs (expendable bathythermographs)  47 zonal approach  323, 338