Securing A Sustainable Future for the Oceans Beyond National Jurisdiction

1. Securing A Sustainable Future for the Oceans Beyond National Jurisdiction Robin Warner Australian National Centre for Ocean Resources and Security University of Wollongong

2. Gaps in the High Seas Legal and Institutional Framework • The legal and institutional regime for the high seas is fragmented and incomplete. • Governance, regulatory, substantive and implementation gaps limit the effectiveness of the high seas regime in securing sustainable conservation and use of the marine environment beyond national jurisdiction, its resources and biodiversity. • The effective protection of the high seas marine environment requires an integrated governance structure which adequately protects not only the interests of individual users but also of the international community.

3. Governance Gaps • Governance gaps include those resulting from the Grotian principle of high seas freedoms and the predominance of flag State jurisdiction on the high seas. • There is no international rule making structure for the high seas which can hold individual states accountable for their failure to act in the face of State actions which have adverse impacts on the high seas marine environment.

4. Regulatory Gaps • Regulatory gaps include gaps in high seas coverage by RFMOs and arrangements which may not apply to all fisheries within a geographic region • Lack of coordination and cooperation between the fisheries regimes and between the fisheries and environmental sectors.

5. Substantive Gaps • No regulatory regime for existing and emerging high seas activities including marine scientific research, bioprospecting, the laying of cables and pipelines, military activities, climate change mitigation schemes floating installations and deep sea tourism. • Lack of clarity on the interaction of the legal regimes of the high seas and the outer continental shelf. • No global rules which elaborate on the basic requirements in the LOSC and CBD for environmental impact assessment for existing and emerging high seas activities.

6. Implementation Gaps • High seas management is fragmented among a variety of sectoral and geographically based bodies including the treaty regimes established under the IMO and RFMOs. • Implementation of these regimes is largely dependent on compliance by flag States many of whom are unable or unwilling to fulfil their obligations to protect the high seas marine environment.

7. Central Challenge of High Seas Governance • The central challenge for high seas governance stems from the nature of the high seas as a common property open access regime with equal rights of user and exclusive flag state jurisdiction. • The freedom of open access leads inexorably to the tragedy of the commons. • Flag state jurisdiction is ineffective in halting this tragedy.

8. The Legal Basis for a New Approach to High Seas Governance • In view of the flaws in the current high seas regime, the time has come for a more communitarian approach to high seas regulation based on the integrated and comprehensive regulation of all high seas uses and activities in the common interest of all states. • Do any principles exist on which to base an international regime consistent with the LOSC?

9. The Legal Basis for a New Approach to High Seas Governance • Expansion of the application of the common heritage of mankind principle is often proposed as a starting point for discussion of a new high seas governance regime. • A CHM regime differs from a common property regime in that it allows all states to participate in the benefits gained from exploitation of a resource even if they cannot participate in its exploitation.

10. The Legal Basis for a New Approach to High Seas Governance • Expanding the application of the CHM regime to the high seas is difficult as the definition and scope of the principle are matters of deep contention. • It may be possible to devise a regime which straddles the divide between the common property and CHM principles in a manner which protects the common interests in the resources of the high seas and the common concern of humanity for the protection and preservation of the marine environment.

11. The Legal Basis for a New Approach to High Seas Governance • Common ground might be found in the concept of the high seas as a public trust to be used and managed in the interests of present and future generations. • Open access to high seas resources would continue but those who exercise that access must do so subject to rules for sustainable management adopted by regional stewards and potentially a small percentage contribution from profits derived from resource exploitation to a global oceans organization or regional seas organizations for ongoing environmental protection of marine environment beyond national jurisdiction.

12. The Legal Basis for a New Approach to High Seas Governance The public trust model could be applied as the juridical basis for establishment of a coherent integrated global system of fiduciary oceans governance which regulates access and use (as opposed to access and benefit sharing) in the common interest/common interest of all

13. The Shape of a 21st Century Regime for High Seas Governance Building on the concept of international public trusteeship or even prior to the establishment of a trust, a range of mechanisms and tools might be adopted by the international community to address the deficiencies of the current high seas regime.

14. Improving Global Coordination and Cooperation • Stronger horizontal and vertical links should be forged between regional environmental protection organisations and other global and regional bodies with sectoral responsibilities for high seas activities such as RFMOs, IMO, ISBA, FAO and regional port state groups eg intergovernmental steering committee. • Development of integrated oceans management bodies building on existing regional seas arrangements (trustees for the high seas).

15. Improving Global Coordination and Cooperation • Global instrument or mechanism could be adopted which: • establishes a global body with the power to review and endorse high seas conservation and management programmes and measures initiated at the regional or sectoral level or provides criteria against which such measures can be measured • Establishes a default mechanism for the interim regulation of new and emerging activities pending formal regulatory measures

16. Improving Global Coordination and Cooperation This instrument could take a number of form including an implementing agreement to the LOSC or a stand alone agreement.

17. Improving Participation and Compliance • An effective high seas governance regime requires the articulation of clear criteria and standards against which the conduct of states (beneficiaries of the trust) can be judged and a response determined by the integrated oceans management bodies eg capacity building, technical assistance, arrest, port and licence denials, trade measures. • These criteria and standards could be included in a global binding instrument.

18. Improving Assessment, Evaluation and Regulation of Existing and New Uses • Fundamental to protection of the high seas marine environment is the ability to assess and monitor existing and emerging uses of the high seas to mitigate adverse effects on the marine environment. • Application of modern conservation norms such as the precautionary approach, the requirement for prior and ongoing environmental impact assessment and an ecosystem based approach to all high seas activities is imperative.

19. Environmental Impact Assessment for High Seas Activities • There are a number of examples of EIA systems in marine areas beyond national jurisdiction and in transboundary areas of ocean space which could be used as models for an instrument or guidelines on EIA for high seas activities. • These include the ISBA Polymetallic Nodules Regulations, the EIA Annex to the Madrid Protocol to the Antarctic Treaty and the Guidelines for EIA in the Arctic.

20. Environmental Impact Assessment for High Seas Activities Features of EIA systems in international and transboundary areas include: • Requirement for prior and ongoing EIA of activities by proponents • Collection of environmental baseline data • Establishment of impact reference zones and preservation reference zones • Establishment of thresholds at which adverse impacts on the environment justify suspension of activities • Guidelines for technical responses to incidents or activities which cause serious harm to the marine environment. • Mechanisms for determining liability for damage to the marine environment from particular activities.