UNCLOS and the promises of its entry into force.

Susan Buck in her book “The Global commons”[1] coins the suggestive statement “technology has caught up with desire” to describe the current situation where  technology for extracting value and for establishing and sustaining property rights from the vast spatial domains considered as global commons now exists. The United Conventions of the law of the Sea (UNCLOS), which text was adopted in December 1982 in Montego Bay, Jamaica, and entered into force the 16 of November 1994, provided for the “largest transfer of resources in the history of humanity”[2] by defining the limit of the territorial sea as 12 miles, the adjacent zone to 24 miles, the continental shelf up to its natural limit and creating the Economic Exclusive Zones extending to 200 miles offshore from straight-line baselines at the coast, with the possibility of extending it up to 350 miles under special circumstances. Excluding the deep-sea bed mining regime contained in part XI and its subsequent Implementation Agreement, UNCLOS is the most recent and classic case of enclosure in international law, it encloses 36% of the world's ocean, including 90% of commercially exploitable fish and 87% of projected offshore oil reserves (Buck[3]). Has this transfer been effective for the protection of the ecological services and good management of the resources the ocean contains?

UNCLOS provides an integrated legal framework on which to build sound and effective regulations to the different uses of the ocean. These have been implemented by the UN specialized agencies and programs over the last 30 years. Nevertheless, severe limitations exist for monitoring and enforcing these regulations. National and international institutions are fundamentally weak. They are usually compartmentalized on a sector by sector division of duties and responsibilities, leaving little room for integrated policy-making or addressing issues that cut across several domains.

The ocean environment is a fluid in constant flux. Because of the highly interconnected and dynamic nature of the ocean environment, human activities (or natural processes) -- taking place locally at one site – can influence and affect the outcome of another activity (or natural process) at a very distant location. Elizabeth Mann Borgese drew the consequences of these properties for key concepts of the classical legal order on land: “the ocean force us to think differently (…) many “terrestrial” concepts simply will not work in the ocean medium. These concepts include property in the Roman Law sense, sovereignty in the sense of the “Westphalian era” and “territorial boundaries”, which neither fish nor pollution will respect”[4]. In her book, a report written for the Club of Rome, Mann-Borgese explores the most ambitious and visionary picture on how to expand the new ocean law regime “for the making of a genuinely new international/national political, legal and social order”.

What we face in the ocean is a problem of management. Sectors tend to define the problems they face as internal, and seek solutions exclusively from within the sector, when in fact many factors affecting the sector or being impacted by sector activities lie outside it. Technically this compartmentalization externalizes the costs to other sectors and is globally inefficient. Somebody is dumped with the external cost either now or in future generations.

The sustainable use of the ocean and of its resources calls for the application of an integrated management regime. Despite the call contained in Chapter 17 of Agenda 21 (1992)[5] which formulated a comprehensive prescription for the integrated development of the ocean environment, it is only recently, with the increased uses of the ocean and its resources, that many shortcomings of the sector approach have become apparent.

Although progress has been slow, there are important initiatives that have gained terrain and maintain the general process moving. Some of the recommendations made in 1998 by the Independent World Commission on the Ocean[6], chaired by Mario Soares the former president of Portugal, have been successfully implemented, like the establishment of an Informal Consultative Process at the level of the General Assembly of the United Nations, a forum conceived to provide an opportunity to discuss every year the Ocean agenda with the direct participation of governments, the specialized agencies and programs of the UN and the representatives of NGO’s and civil society.

Several countries have established and issued principles of National Ocean Policy, usually codified in a public document by a high-level authority, setting up standards for all the activities to be conducted in the ocean-space under national jurisdiction, usually empowering cross-sectoral coordination[7]. Many countries have developed plans and institutions aimed at progressing towards the integrated management of their coastal zones, starting with the application of spatial zoning schemes to the near-shore environment.

Successful cooperation exists at the regional level in several parts of the world, providing for the voluntary implementation of the principles of UNCLOS or Chapter 17 of Agenda 21, as well in the enforcement of international law within and beyond the limits of national jurisdiction, like in the case of the Partnerships in Environmental Management for the Seas of East Asia (PEMSEA), the very successful follow-up of a GEF Project started in 1994. There are signs that the integrated management of the maritime spaces within the 200 miles EEZ is starting to be seen and handled by some governments as a single challenge and opportunity, underpinning a significant Ocean Economy, like in China where is equivalent to a 4 to 11% of the GNP, and therefore a key factor for their development. Several of the seventeen conventions of Regional Seas have achieved a significant level of agreement on policies, have built effective institutions and regularly implement functional tasks, like conducting assessments.

In the Mediterranean basin, the Barcelona Convention system created in 1996 what is essentially a regional Commission for Sustainable Development with an innovative structure and function. There are 36 members, the 21 contracting parties and 15 representatives of local authorities, socio-economic actors and non-governmental organizations working in the fields of environment and sustainable development. Moreover, the representative of the parties, is not necessarily always the minister of the environment, as is traditional in the Regional Seas Conventions, but “one high level representative (21) who may be accompanied by such alternates and advisers as may be required in order to ensure interdisciplinary participation of relevant ministerial bodies of the Contracting Parties (e.g. ministries of environment, tourism, economy, development, industry, finance, energy, etc.) (...) local authorities, socio-economic actors and non-governmental organizations, shall be represented by five representatives (total 15) and an equal number of alternates, to be selected by the meeting of the Contracting parties.(...) All 36 members shall participate in the Commission on an equal footing”.[8]

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[1]  Buck, loc cit.

[2]  Federico Mayor, 1994 Opening Address II International Oceanographic Conference, Lisbon.

[3]  Buck, loc. cit, 84.

[4]  Mann-Borgese, E. (1998) The Oceanic Circle, Governing the seas as a global resource. United Nations University Press, Tokyo, N.York, Paris. pag. 19.

[5]  Agenda 21 (1992)

[6]  IWCO (1998) The Ocean our Future: The Report of the Independent World Commission on the Oceans.Cambridge University Press, Cambridge, 248 pp.

[7] Intergovernmental Oceanographic Commission (2007)  National Ocean Policy. The Basic texts from: Australia, Brazil, Canada, China, Colombia, Japan, Norway, Portugal, Russian Federation, United States of America. Paris UNESCO, 280pp.

[8]   UNEP(OCA)/MED IG  8/CRP/9, cited in Mann-Borgese loc.cit.