Download Overdue reforms to ocean governance: an update

Overdue reforms to ocean governance
Jon Nevill
[email protected]
18 October 2007
It is a widely held view that governance, not science, remains the weakest link in the fishery
management chain (Mooney-Seus & Rosenberg 2007:vi, Grafton et al. 2006, Browman &
Stergiou 2004, Swan & Greboval 2003, Caddy & Cochrane 2001, Sutton 2001), and this is
especially true with respect to the high seas.
The lead-up discussions for the 2006 round of the United Nations General Assembly
(UNGA) began on 2 October 2006 in New York. Amongst the many draft resolutions
circulated amongst member States were two of particular importance for the marine
environment: the Law of the Sea resolution and the Fisheries resolution.
The purpose of this paper is to highlight the parlous state of marine environments and
marine governance, and to ask to what extent are urgent long-term governance reforms
being progressed by the UNGA process. The paper argues that ‘freedom of the high seas’ is
now a major impediment to ocean conservation and sustainable use. The other major
impediment relates to the focus of the bulk of marine management globally on harvesting
rather than conservation. I argue that the pervasive and long-standing failures of fishery
management will remain the rule rather than the exception until fisheries management
agencies, both national and regional, are re-badged and re-focused as ‘biodiversity asset
management’ agencies.
Although relevant globally, this document was written for an Australian audience.
Oceans in crisis:
The oceans of the world are being severely damaged. According to a United Nations
advisory committee (GESAMP 2001):
The state of the world’s seas and oceans is deteriorating. Most of the
problems identified decades ago have not been resolved, and many are
worsening. New threats keep emerging. The traditional uses of the seas and
coasts – and the benefits that humanity gets from them – have been widely
undermined.
Overfishing, far from being a modern phenomenon, has been occurring in certain regions for
a considerable time (Lotze et al. 2006). Overfishing has been the rule rather than the
exception, even in artisanal fisheries. As Jackson (2001) points out: “Untold millions of large
fishes, sharks, sea turtles and manatees were removed from the Caribbean in the 17 th to 19th
centuries. Recent collapses of reef corals and seagrasses are due ultimately to the losses of
these large consumers as much as to more recent changes in climate, eutrophication, or
outbreaks of disease.” According to Pauly et al. (2002): “Fisheries have rarely been
‘sustainable’. Rather, fishing has induced serial depletions, long masked by improved
technology, geographic expansion and exploitation of previously spurned species lower in
the food web”. The disturbingly high rate of fishery collapse has not improved over recent
years (Mullon et al. 2005). Continuing disregard by fishery managers of scientific advice has
been common-place (Murawski 2001).
Populations of ocean fishes have been hugely reduced over the last two centuries. Historical
evidence suggests that earlier stocks may have been an order of magnitude 1 greater than
stocks in the last half-century (Steele and Schumacher 2000) – which themselves have now
often been reduced by another order of magnitude.
According to Jackson (2001): “Ecological extinction caused by overfishing precedes all other
pervasive human disturbance to coastal ecosystems, including pollution, degradation of
water quality, and anthropogenic climate change”. Duda & Sherman (2002) express similar
concerns: “Continued over-fishing in the face of scientific warnings, fishing down food webs,
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destruction of habitat, and accelerated pollution loading  especially nitrogen export  have
resulted in significant degradation to coastal and marine ecosystems of both rich and poor
nations.”
Subsidization of national fishing fleets continues, in spite of warnings by scientists (eg: Pauly
1995) and the FAO2 (www.fao.org) that excessive fishing pressures are the primary cause of
fisheries collapse. Global fishing fleets are two or three times the size necessary to harvest
the approximate reported annual global catch of around 100 million tonnes. Many fisheries
have “staggering levels of discarded bycatch” which, when combined with unreported,
unregulated and illegal fishing, pushes the true global annual catch to around 150 million
tonnes (Pauly & Christensen 1995). These figures, although a decade old, are still roughly
accurate if Chinese reports of fishing take are adjusted for expected error.
Governance failures:
As Botsford et al. (1997) pointed out, it is abundantly clear that, at a global level, “[fishery]
management has failed to achieve a principal goal, sustainability”.
The application of the ecosystem and precautionary approaches have been widely
advocated since the early 1980s, and consolidated in international soft law in 1995 through
the FAO Code of Conduct for Responsible Fisheries. The Code of Conduct was explicitly
endorsed by 124 nations (including Australia) through the Rome Declaration 1999. In hard
law, the UN Fish Stocks Agreement 1995 applied these approaches to straddling and
migratory fish stocks.
The first marine protected areas were created over 100 years ago. While their fishery
benefits remain the subject of much discussion and differing views, the value of networks of
marine protected areas for biodiversity conservation is now widely recognised within the
marine science community. However, in spite of considerable discussion and enthusiasm on
the part of practitioners, and endorsement through international soft law, these areas still
occupy only a minute fraction of the ocean 3 (virtually all within national EEZs). While it can
be argued that some parts of the high seas are protected, the weakness of these protective
mechanisms has so far prevented such areas being listed on the World Database of
Protected Areas. The high seas, and their protection, remain ‘someone else’s problem’.
Considerable guidance is now available on the application of the ecosystem and
precautionary approaches to fishery management – through FAO guidelines and conference
proceedings, through papers in the scientific press, and even through explicit inclusion of
recommended approaches in the addendum to the UN FSA.
The UN Convention on the Law of the Sea (UNCLOS) substantially modified the prior
doctrine of ‘freedom of the high seas’, partly by the EEZ framework, and partly by defining
broad responsibilities accompanying the new rights created within the EEZ framework.
However, while EEZ rights have been enthusiastically endorsed by nation-States, the
environmental responsibilities defined by UNCLOS have been substantially ignored within
EEZs, and almost completely ignored on the high seas. This is the case in spite of the
provisions of the Convention on Biological Diversity, the UN FSA, the resolutions of Rio and
Johannesburg, and the FAO Code of Conduct.
Nations around the world are attempting to respond to these concerns. Fishery management
within national EEZs is improving where nations are beginning to develop management
regimes incorporating ecosystem and precautionary approaches, and where effective
compliance monitoring and enforcement programs are being developed. Smaller third world
States have understandable problems in this respect.
The high seas remain, however, largely without effective regulation, and fishing operators
forced out of EEZs by increasingly restrictive national fishery regimes have been able to
continue to operate under flags of convenience. The freedom of the high seas provides
unregulated fishing vessels with a golden opportunity. As industry spokesman Martin Exel
(Austral Fisheries) puts it: “Until the high seas are managed they will remain sinkholes for
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unregulated and unreported fishing, and that is unacceptable in this day and age of
knowledge and understanding of our oceans”.
Regional fisheries management organisations (RFMOs) have, for the most part, been
ineffective, with little attempt to apply precautionary or ecosystem approaches, or even to
monitor and enforce their own fishery rules. For example a recent FAO report indicated that,
although several regional fishery management organisations claimed to be using a
precautionary approach, only two (CCAMLR and NASCO) could actually name
precautionary elements in their management framework (FAO 2005). This same report (in an
assessment of implementation of Article 8 of the Code of Conduct – dealing in part with
environmental protection responsibilities) found that about 30 percent of the responding
RFMOs indicated that they “had not yet taken steps to ensure that only fishing operations in
accordance with the fisheries management measures adopted were conducted within their
areas of competence”. Considering that only about half of the world’s RFMOs responded to
the FAO survey, this suggests that most RFMOs have yet to implement effective compliance
monitoring and surveillance regimes.
Amongst fishery managers and marine scientists, there is a general consensus that
“governance, not science, remains the weakest link in the management chain” (Browman &
Stergiou 2004:270). In spite of the urgency of the situation, several important reforms put
forward at the FAO FSA Review Conference (2006) did not achieve consensus, resulting in
marginal progress in strengthening or widening the provisions of what is perhaps the most
important international hard law in the fisheries area (Beintema et al. 2006).
It is time now to consider further major restrictions on freedoms which are being widely
abused, to the great detriment of the planet and its inhabitants.
The path not taken:
Einstein is often quoted as saying that the most difficult problems of today cannot be solved
through the same thinking which created them. This is very much the case with the high
seas, where the very concept of MPAs rests on the premise that most of the ocean is at risk
- and this in turn rests on the historic acceptance of freedom of the seas and the freedom to
fish. This is the thinking we need to confront and change.
Who benefits by these freedoms today? Martin Exel recently said that legitimate fishing
companies want governments to manage the high seas, and that freedom of the seas
primarily benefits unregulated fishers, operating under flags of convenience. In theory,
political pressure (through the UN) could be put on nations offering flags of convenience, but
this course of action has been discussed for decades with little significant progress. It is
becoming increasingly obvious Exel’s point is legitimate and important – the freedom of the
high seas benefits only pirates, scoundrels, and other IUU fishers. Yet in a recent document,
the Australian Government stated: "We support the freedoms of the high seas, but recognise
that States have obligations to protect and preserve the marine environment..." As a nation,
I believe that Australia needs to take a different line - one that increasingly suggests that
these freedoms need to be replaced with an effective international governance regime.
Where do we need to go in the long term? Sylvia Earle (echoing the concerns of marine
scientists and conservation biologists worldwide 4) has said: "We must place biodiversity
conservation at the center of ocean governance." (Earle & Laffoley 2006). This is the crucial
point. And governance of the high seas is a necessary condition before biodiversity can be
protected and resources managed in a sustainable way.
The resources of the deep ocean floor, under the terms of the Law of the Sea, are seen as
the ‘common heritage of mankind’. Russ & Zeller (2003) have argued, I believe persuasively,
that this concept needs to be extended to the entire high seas ocean, not just the sea floor.
They suggest that the high seas should be zoned and managed, and that fishing in these
zones, now often seen as a right, should become a privilege, mandated through enforced
conditions. This may seem a large step from the current governance arrangements – but
perhaps this is more an appearance than a reality. Most of the high seas now fall under the
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(admittedly often ineffective) governance of regional fisheries management organizations. In
fact it may not be such a major step to strengthen these agencies and expand their scope.
Government wildlife agencies in many countries have, over long periods, undergone
important name changes and changes in focus. In Victoria (Australia), for instance, the late
19th century "Department of Hunting and Game" evolved into the 20th century "Department
of Wildlife" which is now part of a large "Department of Sustainability and Environment". The
activities and priorities of a department, and the culture of its staff, are importantly shaped by
department name, charter and statutory focus – which in this example has evolved from a
harvesting charter to a conservation charter. Fishery Departments around the world have not
evolved in the same way, to the great detriment of marine biodiversity, and, in many
cases, to the great detriment of the fisheries themselves.
We need to be pushing the Australian Government towards a future which will see Fishery
Departments replaced by Ocean Conservation Departments, where biodiversity conservation
is placed at the centre of their statutory charters. And the Australian Government in turn
needs to be pushing the United Nations General Assembly, and through the UNGA, the
wider global community.
The CCAMLR convention5 is the best model we have in the world today for this fundamental
change in outlook, partly due to the embodiment of the precautionary and ecosystem
approaches into its charter (Constable et al. 2000). While certainly not faultless, the
Commission is by far the most effective RFMO globally. Yet (and again this is the point) it is
not an RFMO, it is a organisation focussed on conservation. It is an "ocean conservation
agency" and a model for the growth of "regional ocean conservation agencies" throughout
the world. Article 2 of the Convention states: "The objective of this Convention is the
conservation of Antarctic marine living resources. For the purposes of this Convention, the
term ‘conservation’ includes rational use." As already mentioned, the convention rests
explicitly on the principles of ecosystem-based management and precaution, with a
requirement that these principles must be applied, monitored and reported. As a
consequence, the whole of the CCAMLR area, vast as it is, technically meets the IUCN
criteria for a class IV protected area (putting aside for a moment the issue of non-member
State fishing).
However, this issue put aside is in fact the broken thread on which the entire global marine
governance framework is unravelling – and will continue to unravel in spite of the best
intentions of marine scientists, managers and lawyers around the world.
The Vienna Convention on the Law of Treaties 1969 establishes a principle that a nationState cannot be bound by international law which it has not, at an earlier time, agreed to.
Within the CCAMLR area, there are currently at least as many fishing vessels flagged to
non-member States as there are ‘legitimate’ fishing vessels flagged to member States.
CCAMLR estimates that around half of the annual take from their area goes to IUU fishers
(illegal, unreported or unregulated fishing vessels). Most of these vessels are in fact
operating under flags of convenience. Increasingly, the IUU fishing industry is using vessels
purpose-built to operate under the flags of nations which do not support CCAMLR, the UN
FSA, or any other RFMO (Gianni & Simpson 2005).
Four factors combine to provide a recipe for ineffective management and the inevitable slide
of marine ecosystems into deeper crisis:

the freedom to fish the high seas, still endorsed by UNCLOS;

the provisions of the Vienna Convention;

the willingness of some nations to put short-term (and relatively small) economic
gains ahead of important principles of international cooperation and ecosystem
management; and

the financial incentives driving the IUU industry.
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The UN FSA attempts to moderate the provisions of the Vienna Convention by allowing
boarding and inspection rights over non-member State vessels. While to be applauded, this
approach has not yet been successful in assisting the establishment of a workable
governance framework over high seas fish stocks. These provisions were also the subject of
heated debate between member and non-member participants at the recent FSA Review
Conference (Beintema et al. 2006).
Conclusion:
Two major changes are necessary to address the current crisis:
The first change is to revoke the “freedom to fish” on the high seas and replace it with
absolute accreditation rights vested in authoritative regional bodies (such as RFMOs or
CCAMLR). In other words, only vessels accredited by the regional bodies would have a legal
right to fish in the areas under the jurisdiction of these bodies.
The second change is to re-name and re-direct existing RFMOs along the lines of the
CCAMLR model, so that they become regional high seas ocean conservation agencies, not
regional fishery management organisations as they are now.
Although these changes are obvious to many within the marine fraternity (and the first has
been advocated by some fishing industry representatives 6 for many years) they represent
major shifts in thinking from current governance frameworks. They are not being discussed
widely within mainstream international law circles. The negotiations which took place in early
2006 within the frameworks of the UN FSA Review Conference and the Conference of the
Parties to the Convention on Biological Diversity have not addressed these issues in
outcome statements, although undoubtedly they featured in verbal discussions.
The International Seabed Authority (created under the provisions of UNCLOS) provides
another model for international governance beyond areas of national jurisdiction. The ISA is
founded on the essential principle that the resources of the sea bed are “the common
heritage of mankind”. While focussed on utilisation, principles of equity between nations, and
sustainability are also embodied in the Authority’s charter.
These changes need to be backed up by political will. The financial incentives behind the
IUU fishing industry must be removed. A combination of satellite surveillance, catch
documentation schemes, port State and flag State controls, and provisions for the seizure of
the financial assets of those funding the industry, could be very effective if widely applied.
As mentioned above, two resolutions are of particular importance in the coming UNGA
meeting in October-November 2006. The UNGA sent the Coordinators First Draft of the
Fisheries Resolution to States for comment on the 25th of August 2006. In my view, although
in many respects comprehensive, it entirely fails to promote the evolution in governance
which is so desperately needed. It rests, in Einstein's words, on the thinking that has created
the problems.
And, unless fishing agencies and conservation agencies push their States to move towards
this evolution, nothing will change. The UNGA is the most appropriate vehicle to promote this
change, and we have an opportunity now. Unless this matter is raised at the UNGA
discussions scheduled to commence in New York on 2 October 2006, the opportunity to
promote gradual (but vital) change will have been lost for this annual cycle of the
negotiations.
Acknowledgements:
Graeme Kelleher (IUCN); Martin Exel (Austral Fisheries); Alistair Graham (WWF Australia).
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Endnotes:
Used here, the term ‘order of magnitude’ means approximately a factor of ten.
FAO: the United Nations Food and Agriculture Organization, based in Rome.
3 Marine protected areas listed on the World Database on Protected Areas (www.unepwcmc.org) account for less than 2% of ocean area, while fully protected areas (no-take)
account for less than 0.2%.
4 See, for example, comments like those of Dr Bill Ballantine (Leigh Marine Laboratory NZ):
“The main challenge facing MPAs is to make the concept redundant as soon as possible”
(MPA News October 2005, p.3).
5 CCAMLR: Convention for the Conservation of Antarctic Marine Living Resources 1980.
6 Martin Exel (Austral Fisheries) pers. comm. 10 September 2006. The concept is also
advocated by fisheries scientists such as Constable (2006).
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