For the Ocean: 2011

mardi 8 mars 2011

The bare minimum: The Oceans under permanent review.

Pure and simple application of the precautionary approach: because of the alarming trends on the status of several ocean ecosystems, the World Summit on Sustainable Development in 2002 decided to keep the oceans under permanent review via global and integrated assessments of the state of ocean processes. This conclusion was reached because there were worrying signs that the sector by sector arrangements to manage ocean activities had proven insufficient and there was no instrument capable to identify the combined impact on the natural systems responsible for the health of the ocean, of two, three or more activities being assessed and regulated independently. The same year, the UN General Assembly not only endorsed the outcome of WSSD, welcoming the Johannesburg Plan of Implementation, but also decided through Resolution 57/141 to establish, and I quote from paragraph 45, […] “Decides to establish by 2004 a regular process under the United Nations for the global reporting and assessment of the state of the marine environment, including socio-economic aspects, both current and foreseeable, building on existing regional assessments“. This is the most comprehensive initiative undertaken by the UN system yet to improve Ocean Governance.

Not to be surprised the initiative faced some resistance in the General Assembly. Countries not sufficiently attentive to these developments adopted a non committal attitude. Some others questioned the very reasons why the process was being developed, defending the view, for example, that living marine resources should be excluded from the exercise because FAO had “exclusive jurisdiction” to pass judgment on fisheries issues. After a couple of intergovernmental Workshops, in 2005 the UN General Assembly finally managed to move forward through resolution 60/30, requesting UNESCO’s Intergovernmental Oceanographic Commission (IOC) and the United Nations Environment Programme (UNEP) to take the lead in getting the process started.

The report of three years of work is impressive[1]. The group of experts analyzed over 200 ocean assessments out of a data base of more than 415 assessments and data collection. The study was peer-reviewed by 85 independent experts and was open to comments by member states, and since April 2009 has been available in full on the web.[2]. Following best practices, the Group of Experts fully documented the peer-review process, cataloguing all the questions raised by reviewers and member states, recording if the comment was taken on board or not by experts and giving the reason why.

The report gave an unqualified yes to the question of feasibility and proposes a clear way-forward for the Regular Process. By putting together the first ever comprehensive overview of the ocean assessment landscape, the Report gives the essential elements to plan and conduct the first Global Integrated Assessment of the Ocean by 2014-15, in full accordance with UN General Assembly resolution 57/141, only ten years later[3]. The Summary for Policy Makers, translated into the six UN languages, was analyzed at the 63th General Assembly of the UN by a Working Group of the whole composed by all members of the UN in August-September 2009. A large plurality of participating countries agreed that there is an urgent need to conduct an integrated global assessment of the ocean, including socio-economic aspects, and that the main elements of the proposal emerging from the work done by the Group of Experts was a necessary and sufficient basis to start the first cycle. A first cycle of the regular process could be conducted between 2010 and 2015 and at the same time report to CSD, if the commission so agreed.

The report proposes a process that can genuinely integrate the different existing institutions, at the global, regional and national level in order to produce the assessment. Experts emphasized that much more important than to have a full new set of perfect data, is to apply the best practices flowing from the many assessments analyzed in the study, with the aim of building a robust global institutional base that using the same principles, can come up with the first integrated assessment of the world ocean. This first assessment, by necessity, will be far from being perfect despite being global will be uneven in coverage. All the regional organizations that need to participate are not equal and do not receive the same level of support from its members. The enhancement of capacity to conduct assessments in some regions is an essential prerequisite that needs to be addressed for the full realization of the Regular Process.

Because they need evidence-based policies for many ocean issues, nations of the world spend and will continue to spend significant amounts of resources in assessments, and new activities are being planned. For example, the assessment planned for the next five years by the nations surrounding the North Pacific, grouped under North Pacific Science Organization (PICES) or the next assessments planned under OSPAR, HELCOM or the Mediterranean Plan of Action.

Beyond the Integrated product that is anticipated by 2014-2015, it is the way that is proposed to unfold the process that is extremely relevant. The Group of experts devised an incremental approach which will be inclusive and influential. The Regular Process is envisaged as a global mechanism/forum which will become increasingly relevant to a range of existing processes and institutions and which will develop focused interim products (“thematic assessments”) and benefits to Member States and ocean entities. Implementing the first Integrated Assessment of the Ocean is a bare minimum.

After reading this paper and getting the distinct impression that we are still climbing sand dunes, I cannot refrain of narrating what until now has been a private conversation I had the privilege to hold in Reykjavík with H.E. Ólafur Ragnar Grímsson, President of Iceland in 2002. Answering one of his questions, I was carefully choosing my words to report on the progress on ocean governance in the UN. He interrupted my polite discourse to say: “Why are you being so careful, young man? When in fact we all can recognize now the big mistake we made in 1945 by not creating the UN Ocean Agency. If we need the UN in one place is in the Ocean”. Now, talking of creating a new UN Agency is perhaps the most politically incorrect statement you can make in the UN, a sort of political suicide, but I am a firm believer that unless we think out of the box, we will fail to stand up to our responsibilities vis a vis the Ocean and future generations.

[1] The full report of the Assessment of Assessment is composed of three publications: a Summary for Decisions Makers (44 pages) the Report (208 pages) and a series of Regional and Supra-Regional Summaries and Technical Annexes (432 pages)

[2] Accesible from “AoA Report” in Http://www.unga-regular-process.org/

[3] 2014-15 are the years when the Commission on Sustainable Development (CSD) has tentatively scheduled to conduct a review of oceans and coastal issues.

Surveillance, Enforcement and the Status quo.

Today this special international space is regulated by 589 bilateral and multilateral agreements[1], a fact that is in itself an indictment, reflecting the low priority that the calls for improving environmental, or ocean governance has among world political leaders. It also reflects the general complacency of users of this special international space with the “status quo”, regardless of its effectiveness as a regulatory framework. Furthermore, as the current piracy crisis has revealed, many dangerous gaps exists in the governance in this unique international space. Enforcement of international agreements is usually the responsibility of each state party. In UNCLOS this responsibility is exerted by coastal states, flag-states and port-states. There is a wide range of good and bad practices that could be catalogued for each of the major conventions and agreements. For example, the practice of using a flag of convenience in shipping is widely accepted as a lesser evil and forms part of the status quo.

On the other hand, finding solutions it is not easy, as the Somali piracy crisis has shockingly showed the world. Even at the coast, expanding the role of the defense community for “constabulary” and “benign” roles always faces cultural and practical obstacles. Even in the case of prosecuting criminal acts, restrictions exist on most navy organizations to undertake “police functions” in terms of law enforcement outside national territorial waters. When such actions are possible, the tangle of legal arrangements necessary to render it effective soon becomes overwhelming. In the Caribbean Region, for example, with an intensive illegal traffic of drugs and people, the US Coast Guard works under more than 22 bilateral agreements, allowing for law enforcement within the territorial waters of other countries[2]

But there are positive signs. The Malacca Strait is a critical and strategic waterway in the global trading system. It carries more than one fourth of the world’s commerce and half the world’s oil. In 2006, having rejected a previous offer of the USA to patrol the strait, Singapore, Malaysia and Indonesia signed the straits of Malacca Patrol Joint Coordination Committee Terms of Reference (TOR) and the Standard Operation Procedures (SOP) to jointly act in order to tighten security in the Strait. In 2008 Thailand too became part of the joint committee for joint air and surface patrols. This combined effort had a decisive effect in limiting the piracy activity in the strait. In 2004 there were 38 cases of piracy, 2 in 2008 and in 2009, to date only one.

[1] The University of Oregon maintains a project that catalogues and updates a data-base with all the existing bilateral and multilateral International Environmental Agreements (IEA). Http://iea.uoregon.edu

[2] Ocean Security Initiative (OSI) 2007. International Conference on Ocean Security in the Wider Caribbean: Congressman Solomon P. Ortiz, Findings and Recommendations; International Center, Corpus Christi, Texas –USA

The United Nations[1]

Similar to what happen at the national level, where almost all ministries of a government have some function or authority related to ocean affairs, in the United Nations system almost all specialized agencies and programs are involved in ocean affairs. The International Maritime Organization (IMO), the International Sea-bed Authority (ISA) and the Intergovernmental Oceanographic Commission (IOC of UNESCO) are exclusively devoted to ocean affairs: IMO for shipping, ISA for sea-bed mining and IOC for ocean sciences and ocean services.

The United Nations Educational Scientific and Cultural Organization, UNESCO, the Food and Agriculture Organization, FAO and the United nations Environment program, UNEP have broader mandates, including divisions dealing with ocean affairs: UNESCO although having eliminated its Oceans Sciences Division in 1982 in favor of concentrating ocean sciences under IOC, still maintains other programs focusing on small islands development states (SIDS), culture (the secretariat for the Underwater Cultural Heritage Convention) and Education (Division on Education on Sustainable Development), FAO for fisheries and aquaculture and UNEP for regional seas and marine environment.

Other UN organizations are also involved with the ocean, like the World Meteorological Organization (WMO) dealing with ocean-atmosphere interaction, marine meteorology and climate and its implications, the International Atomic Energy Agency, IAEA for nuclear marine pollution, the United Nations Industrial Development Organization, UNIDO with industrial marine technology, the International labor Organization, ILO for the protection of maritime workers in the shipping and fisheries industries, the World Health Organization, WHO for ocean-related health problems and food-safety, the united nations development program, UNDP and the World Bank, financing the sustainable development of ocean and coasts.

Several Division of the central UN Secretariat have play also a role: the Division of Economic and Social Affairs (UN-DESA) acting as the secretariat for the Commission on Sustainable Development, coordinating programs of coasts and ocean and, the Division of Ocean Affairs and the Law of the Sea (UN-DOALOS), acting as the secretariat for UNCLOS, the Commission on the limits of the Continental Shelf and by default of any other meeting on ocean that is organized under the central system, like is the case today of the Informal Consultative Process on Oceans.

Although the streamlining of agencies and programs and the harmonization of policies has long been in the agenda of UN and was entrusted in the past to the Administrative Coordination Committee, composed by all heads of agencies and programs and chaired by the UN Secretary General, little progress has obtained. Perhaps realizing the limits of the inter-secretariat level to tackle this type of institutional policy formulation, one of the reform measures of former Secretary General Kofi Annan was to abolish the ACC itself[2] and therefore all its subsidiary bodies, including the Inter Agency Committee on Sustainable Development and its Sub-Committee on Oceans and Coastal Areas (IACSD-SOCA), created after the Rio de Janeiro Conference on Environment and Development. Although following looser rules of engagement, the UN-Oceans network[3] was re-created after, it is clear that the momentum from the Rio Summit to apply the program contained in Chapter 17 of Agenda 21 to enhance coordination and streamline ocean institutions was partially lost.

I am painfully aware that this is a “tour de force” of names of little known agencies, secretariats and a soup of acronyms, only known to insiders, but this is what the UN system offers today. It also offers many options to pick the forum where you want an issue to be discussed. As is well known to international lawyers, the first thing that they advise their clients to choose is the court in which they want their case to be heard. In my view, to recover the momentum, a larger forum with strong participation of civil society is needed: a truly multi stakeholder forum for the Ocean. An honorable first step is the Global Forum of Ocean Coasts and Islands[4], we initiated with Biliana Cicin-Sain to promote the Ocean Agenda in our way to Johannesburg. The Forum succeeded in putting back the ocean in WSSD and did survived thanks to the dedication of a tiny group of friends leaders and donors, but it needs now to tackle the challenge of its internal governance to reach new levels of service to the whole world community.

[1] I am postmoustly in debt to Elizabeth for guiding me in this review. See Chapter 5: Ocean Perspectives: Institutional, in Mann-Borgese, loc.cit.

[2] It was replaced by the Chief Executive Board (CEB) and two High Level Committees, one for Program and another for Administration.

[3] Http:// www.un-oceans.org/

[4] The Global Forum of Ocean, Coasts and Islands: Http://www.globaloceans.org

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]

[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.

A fluid spatial domain, a unique international space.

The ocean is a unique international space, that for many centuries remain almost fully outside any national jurisdiction and still today its largest fraction (64%) remains outside national jurisdiction. The development of the ocean legal regime through the centuries is abundant in written theory and legal innovations, reflecting the evolving balance between the interests of nations, the availability of technology and the power to impose and maintain a status quo. “As early as the second century, reflecting their own position in the Mediterranean, the Romans had declared that the seas were communes omnium naturali jure, or common to all humankind”[1]. The growth in power and commerce by the mercantile-cities[2] and coastal nations made the control of coastal waters more important and states started to lay claim on the oceans. The most ambitious of these claims is that of Spain and Portugal, that in 1494 agreed in the Treaty of Tordesillas, under the authority of the Pope, to divide the whole world in two equal hemispheres, one under Portuguese dominion and the other under Spain. In fact the untenable practical situation created by these treaties, in view of the growing influence of Dutch, English and French maritime presence, fueled a vigorous discussion around the concepts of closed seas (mare clausum) and freedom of the seas (mare liberum) marking the origins of modern law of the sea. In 1602 the Dutch East India Company seized a Portuguese galleon in the Strait of Malacca, until very recently still one of the hotspots of world piracy, and the company commissioned Hugo Grotius to write a paper with the legal basis justifying that action. The famous piece “Freedom of the seas” (Mare liberum) by Grotius[3] is part of a larger opus “On the law of the spoils” (De jure praedae), that in perfect symmetry was very quickly subject to rebuttal by an English jurist, John Selden, who at the request of king James I, wrote “Mare Clausum: the right and dominion of the sea”, in defense of the British seizure of Dutch cargoes off Greenland[4]. The history of the law of the sea is long and fascinating. It is not my intention to summarize it here, but the main point is that the ocean law regime is old, has evolved and has had to adapt to the power and political realities of the times.

[1] Susan J.Buck 1998 “The GlobalCommons, an introduction”, Island Press, Washington D.C., page 76.

[2] (...) “by 1269 Venice was charging tolls from all vessels in the Adriatic Sea”, Buck, loc. cit.

[3] Grotius, Hugo 1608 “Freedom of the Seas” or “The right which belongs to the Dutch to take part in the East Indian Trade (Mare liberum). Oxford University Press, N.York [1916], Arno Press [1972].

[4] Buck, loc. cit. 79

Much more than fish and ships....

There are alarming signs that the management systems that we have are insufficient to guarantee the integrity of the several natural systems that provide basic ecological services to humanity and the sustainability of living marine resources. Many of the uses than man makes of the ocean are having secondary effects that are affecting the stability of natural processes in the ocean. Destruction of critical habitats along the coast is alarming, as human populations encroach onto the coastal zone. Destruction of deep ocean habitats is significant due to the secondary effect of fish trawling. Destruction of corals, due to bad practices in the collection of fish for aquaria is still going on in several regions of the world. Massive accumulation of plastic in the central gyres of the Pacific Ocean are only recently being detected and studied. The increasing frequency and abundance of dead-zones due to the exhaustion of oxygen by the arrival of massive quantities of chemicals used by, or originating in, agriculture and animal husbandry and transported by rivers into the ocean.

Through photosynthesis by microscopic plants in the surface layer of the ocean, carbon dioxide is drawn from the atmosphere and oxygen is released. The exchange of oxygen and carbon dioxide (and other gases) has a profound effect on the earth's climate. Absorbing millions of tons of CO2 every year – roughly one third of total annual emissions -- the ocean has already spared us from catastrophic climate change. But in doing so, its own intrinsic balances are being altered: it is becoming more acidic and has taken the largest fraction of the additional heat generated by climate change, something that might eventually alter the normal patterns of ocean circulation that are so essential for keeping CO2 out of contact from the atmosphere.

We have an incomplete and piecemeal picture of what is happening to the ocean and there is an urgent need to change this and adopt corrective policies at the highest level possible. Too much is at stake to follow the path of least resistance. Powerful political leadership is needed.

The ultimate global commons

The Ocean is the ultimate global commons. Life originated on earth because it has the Ocean: water in liquid state on its surface. Although curiosity has pushed humankind to search for life in outer space, there is still no other planet with life in the known universe.

Life on earth originated in the margins of the primordial ocean and for millions of years evolved in this aquatic milieu. To be certain, the Ocean is a thin[1] layer of fluid that plays an essential role in making the planet livable. The ocean is the ultimate global commons because it provides essential ecological services to all humankind, making life possible on our planet. One example: marine plants produce annually 36 billion tons of oxygen, equal to 70 per cent of the oxygen in the atmosphere. I cannot think of a more fundamental reason to assert that every form of life on the earth has a stake on the health of the ocean. In particular, all human beings have a stake in the ocean and we are responsible for its health.

Once I was explaining that due to the nature of fluids, the Ocean should be considered to be one, singular: one Ocean. The statement created a strong reaction from part of the audience, many of them lawyers[2], who immediately challenged the unity of the ocean concept and argued in favor of maritime spaces subject to dominant national interest, reflecting the vision of the ocean as open to the competition and dominion of nations, i.e. a territorial space.

[1] On average the radius of the planet is 6371 kilometers, the ocean on average is 3733 meters deep, i.e. a thickness of 0.058 % or 6 ten thousands of the radius. The Ocean is to the earth thinner than the skin to an apple.

[2] Half of the lawyers in this world are trained within the Roman legal tradition, the other half under consuetudinary law. The commons is a concept that emerges naturally and is harmonious within consuetudinary law but it doesn’t fit easily in the roman tradition where it becomes public good or public space.