New approaches to marine management
The Ocean Panel is a joint initiative of 14 coastal nations that was launched in September 2018 with the aim of developing pragmatic solutions for a sustainable marine economy. To this end, the initiative works with representatives from politics, science, business and civil society. Members are Australia, Canada, Chile, Fiji, Ghana, Indonesia, Jamaica, Japan, Kenya, Mexico, Namibia, Norway, Palau and Portugal.
An obvious contradictionIn essence, the United Nations Convention on the Law of the Sea (UNCLOS) places an obligation on the parties to cooperate at the regional, national, supra-regional and global levels and to effectively protect the marine envi-ronment in this way. As stated in the provisions, all measures and concepts applied to this end must be integrative in their substance and preventive and precautionary in their effects. But why then, one might ask, are the world’s oceans in such a bad state? Why is there such a wide gulf between the ambition and reality of the international law of the sea and marine management?
The answers given to this question vary greatly. They range from pointing out the lack of implementation of many existing agreements to calling for a radical transformation of marine management. For example, the authors of the United Nations Second World Ocean Assessment argue that the ocean and its resources can only be protected and used sustainably if UNCLOS and its many complementary legal instruments are actually implemented worldwide. Among these complementary legal instruments, the authors include:
- International treaties: These include international agreements on sustainable fisheries management, on protection against pollution from ships, on the protection of certain marine habitats, and on the protection of crews, fishers and other workers in the marine sector;
- Regional treaties: This category includes the regional fisheries agreements as well as the regional marine conventions and programmes of action;
- Soft law instruments: The term “soft law” covers agreements, guidelines, resolutions or declarations of intent which, unlike “hard law”, are not legally binding and compliance with which cannot be enforced in the courts. Nevertheless, they are frequently used at the international level and nations pay great attention to them, primarily because soft law regulations often serve as precursors for later hard law regulations in the form of treaties or agreements. In the area of marine management they include, for example, the various fisheries guidelines of the Food and Agriculture Organization (FAO) and the guidelines for marine spatial planning issued by the UNESCO Intergovernmental Oceanographic Commission (IOC). Also relevant are the Rio Declaration on Environment and Development as well as the 2030 Agenda and its 17 Sustainable Development Goals (SDGs) – in particular SDG 14, with which the community of nations commits to the conservation and sustainable use of the oceans, seas and marine resources.
- The UN experts state that the implementation of this multitude of laws, guidelines and requirements constitutes a great challenge for all nations. The number of international conventions of significance for the sea now amounts to more than 100.
Especially the small island states and the world’s economically weakest countries lack the expertise, financial resources and qualified personnel and the necessary institutions or authorities to implement effective marine management measures, the scientists say. The authors also emphasize that successful marine management begins on land. All terrestrial activities must be managed in such a way that the sea and its biotic communities ultimately bene-fit instead of being primarily harmed, as has been the case so far.
According to the UN experts, there are also numerous issues that are only partially covered by existing legal instruments – regulations on dealing with marine litter or fisheries management for example. Many areas need to be reworked. Another complicating factor is that even in relatively well-regulated and controlled areas, private-sector actors often find loopholes that give them financial advantages, but ultimately come at the expense of people and the marine environment.
- 8.11 > Baye Cheikh Mbaye from Senegal labels sample bottles in the wet lab during an expedition on the German research vessel Heincke. At just under 55 metres, it is the second largest ship in the fleet of the Alfred Wegener Institute, Helmholtz Centre for Polar and Marine Research (AWI).
- 8.12 > The Chittagong ship graveyard in Bangladesh is one of the many places where disused cargo ships, tankers and container ships are scrapped directly on the beach. Asbestos, oil, toxic chemicals and other substances are released into the environment in the process. The pollutants also affect the health of the approximately 20,000 workers at the shipbreaking yard.
- A recent example of such a loophole can be found in shipping. New research shows that ship-owners in industrialized countries such as Japan, South Korea, the USA and European Union member states are increasingly choosing “flags of convenience”, i.e. they are registering the ships in a foreign country in order to be able to scrap them cheaply at the end of their service life in countries with weak occupational health and safety standards and environmental regulations. Data from 2014 to 2018 show that 80 per cent of all retired ships were dismantled in ship graveyards or demolition yards in Bangladesh, India and Pakistan. All three countries are known for frequently scrapping ships right on the beaches, releasing large amounts of asbestos, oil and toxic chemicals into the environment in the process. Moreover, local employers and authorities pay scant attention to occupational health and safety conditions or compliance with environmental regulations during the dismantling of ships.
The option of registering ships in foreign countries was mainly used by ship-owners in EU countries: between 2002 and 2019 the proportion of ships that sailed under the flag of a developing country, even though their owners were EU citizens, increased from 46 to 96 per cent. This increase is also due to stricter rules on ship disposal that have been in force in the European Union since 31 December 2018. According to these rules, ships flying the flag of an EU member state must ultimately be dismantled and recycled at a dismantling facility that is on a list of approved facilities and thus demonstrably meets a number of safety and environmental standards. The standards required in the EU go beyond those set by the International Maritime Organization in its controversial Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships. Before this convention was signed in 2009, more than 100 environmental and human rights organizations as well as trade unions and representatives of numerous other institutions had jointly protested against the inadequate IMO minimum standards and called for improvements.
A fundamental transformation is neededIn view of these and many other discrepancies between the aspirations and realities of ocean governance, the approaches put forward by a growing number of experts go far beyond the United Nations’ stance. They are calling not only for clear implementation of existing agreements, laws and guidelines, but also for a fundamental reform of marine management. These experts include, for example, members of the Intergovernmental Panel on Climate Change and the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services as well as a group of researchers who, on behalf of the Ocean Panel, developed strategies for a radical reorganization of marine management.
They state unanimously that the oceans’ current situation demands a fundamental rethink, or in other words: a new relationship between humanity and nature and especially the ocean, guided by the awareness that the ocean is the common heritage of all, that it should not serve individual gain and only be utilized within its ecosystems’ capacity to perform without coming to harm. All human activities should therefore primarily aim at the recovery and revitalization of marine ecosystems and not at their exploitation. At the same time, flexible and effective marine management processes must be identified that guarantee the protection and sustainable use of the oceans. This is the only way to prevent the imminent collapse of the ocean’s biotic communities and thus its key functions for economies and societies.
- 8.13 > A study shows that the majority of ships scrapped in 2019 belonged to owners from the European Union, South Korea and the USA. However, the owners ultimately had the ageing ships regis-tered under “flags of convenience”, allowing them to be disposed of in countries with lax environmental regulations.
- To describe the scope of transformation that is called for, the Ocean Panel experts draw on examples from human history. In their opinion, the necessary societal change is roughly comparable to the fundamental changes that led to hunter-gatherers becoming sedentary farmers about 12,000 years ago, or to the upheaval in which Europe’s peasant-based Renaissance and Reformation period (1450 to 1750) societies mastered the leap into the industrial age. In other words, to meet the objective of sustainable use of the sea, all aspects of our modern lives must change fundamentally. There must be a rethink on almost everything, and almost everything must be redesigned with a view to sustainability. Humankind should regard nature’s carrying capacities as a red line that is not to be crossed.
According to the scientists, the failure of the current marine management system is due to the fact that, firstly, the tasks are distributed among too many independently acting sectors and institutions. Secondly, there are no instruments or incentives for a jointly coordinated approach, although the Convention on the Law of the Sea does in fact provide the requisite framework. A content analysis of more than 500 international conventions on environmental protection and human activities in the world’s oceans proved revealing in this regard. The findings showed that global agreements largely make reference only to individual marine sectors, such as fisheries, pollution, resource extraction or shipping. Only rarely do they cover two or more sectors. In contrast, regional agreements usually cover several such sectors. However, they too tend to mention only in passing cross-cutting issues such as the strengthening of marine biocoenoses.
- 8.14 > The Great Blue Hole forms the entrance to an undersea cave system and is a major tourist attraction in the part of the Mesoamerican Reef administered by Belize. The country’s integrated coastal management plan is considered exemplary. It banks on healthy, robust coastal ecosystems being of much greater benefit to humans than exploited and degraded ones.
- A similar picture emerges when looking at the most important institutions in global and national marine management. These are also predominantly assigned to individual sectors and rarely have cross-border jurisdiction. They include institutions that:
- govern land use in coastal, rural or urban areas,
- manage inland waters and monitor their use,
- manage the use of natural resources (such as agriculture, forestry, mining, fisheries),
- are responsible for environmental protection,
- are tasked with promoting development (economy, energy sector, transport), or
- oversee and regulate human activities at sea.
Ideas for new marine managementAccording to the experts, the search for ways out of this crisis should be learning-driven and knowledge-based. Research has shown that ecosystems on land, in rivers, and in freshwater or marine estuaries are closely interconnected and that none of the three global crises (climate change, species loss, pollution) can be solved on its own. Sustainable marine use therefore calls for a holistic approach to marine management. However, this requires a much greater willingness to cooperate on the part of all actors – from local through to international levels. It also requires a greater sense of responsibility, clear liability rules in the event of violations, transparent decision-making processes and new participatory procedures to ensure that conflicts over use are resolved and that all stakeholders benefit fairly from the resources and services provided by the sea, especially those outside of national territorial waters.
The experts have particular hopes for “niche solutions” that are devised and tested at a small or local scale, prove their worth and are then moved out into the world as best-practice examples and widely applied. For example, a cross-sectoral integrated coastal management plan adopted in Belize in 2016 has global appeal and serves as a role model. Its development was initiated by a newly created ministry that places under one roof the areas of agriculture, fisheries, forestry, environmental protection and sustainable development.
Our Ocean Conference
Our Ocean Conference (OOC) is an annual event that brings together government and business representatives as well as scientific and civil society leaders to exchange information on progress in ocean conservation and announce new projects. These always fall under one of the following six headings: (1) marine protected areas, (2) climate change, (3) marine pollution, (4) sustainable fisheries, (5) sustainable blue economy and (6) marine security.
- In the process of developing the new plan, the government sought advice from experts in integrated coastal planning. It also organized a co-creation process in which all stakeholders affected by coastal planning were able to participate. Ministries as well as non-governmental organizations, businesses and representatives of local communities participated in the process. The new management plan aims at more effectively protecting the coasts from storm damage and rising sea levels, increasing profits from fishing and tourism, and at strengthening protection for mangroves, coral reefs and Zostera beds, thus safeguarding the livelihoods of a large part of the coastal population.
The plan also highlights the need to coordinate and fund a wide range of different actors and measures for successful implementation – from coastal pollution, bottom-net fisheries, pelagic fisheries and aquaculture to tourism development, education, climate change adaptation and the preservation of cultural heritage. Moreover, the new management plan led to the Belize government banning oil exploration at the world’s second largest coral reef, the Mesoamerican Barrier Reef. UNESCO praised the coastal management plan as one of the most progressive in the world and considered the country’s great coral reef to be so well protected now that it removed the reef from the List of World Heritage in Danger.
Great progress in marine protection can also be achieved by eliminating subsidies. Without them, many deep-sea fisheries would be loss-making enterprises. Moreover, fertilizer-intensive forms of agricultural cropping are also subsidized, resulting in the eutrophication of rivers and coastal waters. And looking further, subsidized coastal reconfiguration, forest clearing and the sealing of soil surfaces ultimately harm the sea. They limit the ability of natural landscapes to remove carbon dioxide from the atmosphere, and thus drive climate change. They also destroy habitats important for species diversity and minimize their functional diversity, on which the oceans in turn depend in direct and indirect ways.
- The first signs of an awareness shift in politics and business can be found in the increasing willingness of nations and companies to work towards self-imposed environmental and climate targets. The most prominent example of such voluntary commitments are the Nationally Determined Contributions (NDCs) to which the signatories to the Paris Climate Agreement have pledged.
Voluntary commitments with direct relevance to the ocean are made by governmental and non-governmental actors at the regular Our Ocean Conference or at the UN Ocean Conference. A remarkably large number of actors subsequently implement the projects they announced. In the 2014 to 2017 period, for example, one third of all commitments announced at the Our Ocean Conferences concerned marine protected areas. Of these 143 announcements, half were implemented by 2019, meaning that more than five million square kilometres of marine areas were newly protected worldwide, for example in Palau, Argentina, Chile, Canada, the USA, Norway, Ireland and Micronesia.
At the Sixth Our Ocean Conference in October 2019, governments, businesses and other stakeholders pledged a total of 370 actions at a combined cost of USD 64 billion. Among others, the actions covered:
- Commitments to let independent scientists conduct on-board monitoring of krill hauls (fisheries companies);
- Investment in Ocean Risk Initiatives (insurance);
- Funding commitments for projects on environmental transformation in maritime shipping (banks);
- A variety of research as well as knowledge and data transfer projects (research institutions and governments);
- Projects to prevent or reduce marine litter (NGOs and governments);
- Increased efforts to effectively implement conservation measures in designated marine protected areas (governments) and much more.
- 8.15 > At the Sixth Our Ocean Conference in 2019, participants made ocean protection pledges worth a total of USD 64 billion. The majority of project ideas were submitted by governments, while the most financially costly pledges came from the private sector.
- Overall, 23 per cent of the measures announced fell into the category of “sustainable blue economy” and 21 per cent dealt with marine pollution. Another 16 per cent targeted sustainable fisheries, while five and four per cent covered marine security and the hosting of future conferences respectively. In terms of pledged funds, 80 per cent of the funds were to be used for measures to combat climate change, followed by financial commitments for measures for a sustainable marine economy.
However, voluntary commitments alone are not enough to drive the necessary change. Experts say that ocean governance structures also need to change. While decisions have so far often been made at the highest national level and their implementation then pushed through to the lowest level (top-down approach), sustainable development requires network-like decision-making structures in which representatives from the political arena, the private sector, research and civil society participate and cooperate in a variety of ways across thematic boundaries and levels of responsibility. The strands of such a polycentric management network would therefore extend in all directions – with many linkages across sectoral, thematic and district, regional and national boundaries.
- The scientists are convinced that such a complex management network with many cooperating decision-making centres has three major advantages:
- It is more open to innovative approaches and promotes shared learning.
- It involves all societal groups in decision-making, especially the local public affected by the decisions.
- It can therefore respond more effectively to the challenges of our time than an administrative system in which there is little diversity of interests and only one way of decision-making.
- 8.16 > For some years now, abalone sea snails in Chile may only be caught by fishers who hold a fishing licence for the respective coastal area where the snails occur. Since the introduction of these exclusive fishing rights for artisanal fisheries, the once heavily overfished stocks have recovered in many places.
- In Chile, for example, after the collapse of the abalone stocks in 1991, the government introduced Territorial Use Rights in Fisheries (TURFs) for artisanal fisheries. This means that in more than 550 designated coastal areas, only certain groups of artisanal fishers have been allowed to catch Chilean abalone (Concholepas concholepas) and other species for several years – each in the section the group was allocated. The fisher cooperatives themselves decide on the quantities caught. They autonomously monitor compliance with the legal regulations in their area and are obliged to report regular stock assessments to the supervisory authorities. As a result of this local fisheries management, the artisanal fishers’ catches have increased continuously in most regions, and as much as fivefold in some areas. The sector is once again reliably providing food for the coastal population and work for more than 17,000 fishers. In particularly well-managed TURFs, stock densities and fish size have also increased, indicating that this approach is a valuable tool for sustainable coastal and fisheries management.
Furthermore, according to the Ocean Panel authors, an international ocean agency is needed as the highest level institution. This agency should define the norms and principles and thus the overarching rules for sustainable network-like marine management. It would also be tasked with offering rules and mechanisms for dispute resolution and enforcing compliance with important principles such as transparency, accountability and diversity of participation. A United Nations resolution would be needed to establish such an institution, as well as a group of nations that would put up the necessary funding, but without claiming special privileges in return.
Experts from the German Advisory Council on Global Change (WBGU) had already put forward a similar institutional proposal in 2013. They proposed the establishment of a World Ocean Organization as the global steward of the ocean as human heritage, and defined ten criteria against which ambitious ocean governance would have to be measured.
However, not all experts approve of the idea of a UN ocean agency. In view of the experiences with the negotiations on the Mining Code for the deep sea and the agreement on Biodiversity Beyond National Jurisdiction (BBNJ), critics point out that once again this body would probably be composed of representatives of the nation states. There would thus be a danger that their differences in interests would again delay elementary decision-making processes and severely hamper the work of the Ocean Agency. Moreover, it is questionable whether the industrialized nations would even agree to such an ocean agency. They would after all only have one vote each and would have to decide on fundamental questions of ocean use together with many developing countries and landlocked states, and may have to submit to majority decisions.
- Nevertheless, the international community should certainly take note of the Ocean Panel authors’ recommendations. The principles of a network-like sustainable marine management they developed could prove to be extremely useful – regardless of whether or not there will ultimately be an ocean agency. With these principles as guardrails, it may be possible to actually bring to life the framework provided by the United Nations Convention on the Law of the Sea and guarantee the sea the protection it needs to serve humanity in the best possible way. Once again and in brief, the most important recommended actions put forward for future marine management are as follows:
- All decisions should aim at sustainable use of the oceans and be based on the guidelines agreed upon by the international community in the UN Climate Convention, the Paris Climate Agreement and the Convention on Biological Diversity. In addition, the polluter-pays principle applies (polluter pays to remedy damage caused), as already laid down in the Rio Declaration on Environment and Development. The United Nations Convention on the Law of the Sea forms the legal basis for all action.
- Programmes and measures should go beyond sectoral and zonal boundaries and take into account information from all affected areas. This requires close cooperation between the many actors and institutions.
- Decisions should be science-based and always take into account the precautionary principle. To ensure that expert knowledge is reliably incorporated into decision-making processes, fixed procedures should be introduced that allow scientists to be heard or to participate. Moreover, the effectiveness and efficiency of all measures should be checked by means of large-scale monitoring and evaluation programmes.
- Sustainable marine management necessitates a flexible organizational framework within which it is also possible to react promptly and efficiently to unforeseen changes.
- Sustainable marine management should rely on a closely meshed network composed of many actors to ensure that all can participate in decision-making. Moreover, it is important to make all decision-making processes transparent.
- All knowledge about the state of the ocean, legal frameworks, use plans, research results, technology developments and best-practice examples should be freely shared among all stakeholders via knowledge and data portals.
- The process of marine management should be characterized by fairness and equality. It is crucial to this end that human rights are protected and enforced, and that actors take responsibility for their actions and are liable for adverse repercussions. Furthermore, a balance must be obtained between individual short-term goals and the common long-term goal of sustainable ocean use.
- The authors also call on all governments, businesses and civil society representatives to strengthen the transformational ocean programmes established by the United Nations and its institutions. As a result of human activity, the ocean, a source of life, is in an extremely precarious situation. This is further exacerbated by climate change. To release it from this predicament and to guarantee a sustainable future for both the ocean’s biocoenoses and the billions of people who benefit from the sea requires the support and cooperation of all – a plea that is quite in the spirit of the Convention on the Law of the Sea.