This article is written by Sneha Singh, from Dr. Ram Manohar Lohia National Law University. This article tells about how the ocean space is beneficial and the need to protect it by making various regulations.
Table of Contents
Introduction
The oceans have been a host of various non-living resources and have sustained life for centuries. It has also been a source of transportation and recreational needs. Due to the vast importance that the ocean possesses, countries have a desire to gain control and sovereignty over the seas to get the maximum benefit and have dominion over it.
The law of the sea in its development had to witness the increase in the claim of the state power over the marine spaces in a competitive and contested way. But recently the global community seems to realise the drawback of such an approach of trying to gain control over the marine resources i.e. particularly relating to depletion of living and non-living resources and the degradation of the marine environment. They have also stated that the problems of ocean space are closely interrelated and need to be considered as a whole in the Preamble of the United Nation Convention on the Law of the Sea 1982 (UNCLOS).
There are two presuppositions that ocean discourse involves. First, there is an acknowledgement of existing and continuing division of ocean resources and the regulations to control human activities. Second, it strives to solve the problems which are related to governance arising from the zonal and sectoral aspects of the ocean spaces by a series of norms and tools which are implemented by cooperation between the various institutions that function within those spheres.
Concept of ocean governance
The concept of ocean governance evolved in the twentieth century but it is still not clearly defined. In political and social fields it comprises all the rules, laws, institutions which are related to the ocean. The definition is narrower when it comes to the law’s perspective. It relates to the regulation of maritime activities with a focus on marine environmental protection. Its focus is on how the cooperation and coordination with zones and sections and the different laws and policies adopted there help in sustainable environment growth not only for the present but also for the future generations. So, from the perspective of the law, it consists of governing human conduct in the ocean with the objective of protecting the marine environment.
Sectoral and zonal aspects to ocean governance
The two sectors and zonal aspects are vital considerations for ocean governance. The zonal aspect reflects as to who would prescribe regulations to be made over a certain region based on demarcated boundaries. Whereas, the sectoral aspects tell about the activities which need to be regulated.
In terms of zones, the oceans can be divided into two zones: the area which falls within the jurisdiction and the area which falls outside jurisdiction. According to Article 2 and 3 of the UNCLOS the territorial sea is up to 12 nautical miles in which sovereignty rests with the coastal states. The next is a contiguous zone which is up to 24 nautical miles and the coastal states had to take measures regarding the custom, fiscal and sanitary issues mentioned in Article 33 of the UNCLOS. There exist two more zones. As mentioned in Article 56 and 57 of the UNCLOS the exclusive economic zone (EEZ) over which the states have the right to exploit the resources for their economic benefit both living as well as non-living. Different from the territorial zone in EEZ the states have limited non-economic rights. Other states too have certain freedom like they can navigate in the EEZ of a State and lay submarine cables but these activities should not affect the coastal states from gaining the economic benefits from the area. The areas where a state possesses sovereignty has jurisdiction to make laws to protect the marine environment and to make environmental laws so as to extract the best of economic benefits.
In the areas beyond national jurisdiction, there exist two different zones. Article 87 of the UNCLOS mentions the first one beyond EEZ known as the High Sea where all the States enjoy different freedoms. No State has jurisdiction over it but it does not mean there is complete lawlessness. The flag state i.e. the state to which the ship belongs has jurisdiction and their domestic law is followed and also the laws which that State agrees to at international level. The second zone is the international seabed zone known as Area which falls beyond the continental shelf area claimed by any coastal state as given in Article 1(1)(1) of the UNCLOS. The International Seabed Authority has been given the power to see to the exploration and exploitation of the nonliving resources like minerals and also to look to the marine environment and its protection.
The sectoral aspect recognizes the fact that it is not good to assign jurisdiction of the ocean area to various states based on boundary areas but it should be complemented with laws that especially govern the activity in concern. The modern law of the sea comprises a separate set of laws for various sectoral regimes example fishing, mining etc. This becomes important in transboundary scenarios. Like shipping, activities require crossing many borders with multiple jurisdictions and as such, there is a need for more adequate regulation.
Norms and tools concerning ocean governance
To realize its objective the theme of ocean governance comprises many norms and tools. Norms mean the legal principles, concepts, and doctrines which are given recognition under international laws. The determining value of these norms differ from each other and depends on how they are perceived as either binding or just as guiding by various states, international organisations or how they are expounded by international courts or tribunals. Non-binding norms have a compelling effect. So basically norms are the notions which are applied to ocean governance. Some of the norms which are related to ocean governance are- the “no-harm” or prevention of transboundary harm rule, environmental impact assessments, the precautionary approach, the ecosystem-based approach, sustainable development, and the polluter pays principle.
Tools are the measures and plans that are made and applied to save the marine environment from human activities. Tools are the measures adopted to reach the desired end. The tools can be said to be both complementary and supplementary and even in certain situations analogous to norms. For example- an environmental impact assessment is an accepted norm of international law and can also be seen as a tool.
Ocean Governance and conceptual development
There are three phases which are recognised in the development of the modern law of the sea that promotes ocean governance.
The first stage there were efforts made to codify the law of the sea until the adoption of the four treaties in 1958, the focus was on the desire of exploiting the resources of the ocean by the coastal states. During this period, the seeds for the zonal and sectoral aspects of the laws of the sea were established. When the ocean spaces were being divided it was also ascertained as to who will have jurisdiction over which part of the ocean.
The second stage comprises the phase from 1958-82 and the focus is on regulating the human activities on the ocean by dividing it into sectors( i.e. shipping, fisheries, minerals and also to take care of the marine environment from pollution and harm these activities are causing. Several instruments including the Stock Declaration of the human environment were adopted. In 1982 UNCLOS came into effect which shifts the focus from individual sovereignty and jurisdictional rights to the collective responsibility to save the marine environment. It provided the foundation for integrated management and governance by diverse treaties and instruments.
The third stage which is the current stage of the modern law of the sea reflects the interests which the concept of the ocean governance seeks to secure. The concept of ocean governance is linked to the development of environmental law and human rights. The notions of sustainable development are also intertwined with the bigger concept of ocean governance. The increase in the number of international organisations since the mid-twentieth century represents the movement of greater protection of the marine environment.
How do the oceans and seas related measures contribute to sustainable development
The oceans are a resource for sustainable development of a country as they help in poverty eradication, sustained economic growth, food security and creation of sustainable livelihood and decent work. Also the need to protect the biodiversity and marine environment addressing the impact of climate change. The ocean cover is around two-third of the earth’s surface and it contains around 97% of the planet’s water. There are around three billion people who depend on marine and coastal resources for their livelihood.
Oceans also play a crucial role in global food security and human health. Fish are a valuable source of nutrition which provide 4.3 billion people with about 15 percent of their intake of animal protein. They also help in regulating the global climate, as they capture and store about 30% of the carbon dioxide produced by humans, and provide water and oxygen required by us. They are huge reservoirs of biodiversity.
Critical analysis of ocean governance
The ocean which has no boundary to it a boundaryless environment has interests of many nation-states, local communities, organisations and indigenous people attached to it. It is obvious from this point of view that ocean governance is a conflicting area. To tackle these interests of the various organisations or states different tools of ocean governance are applied. It is also rather influenced by dominant rationalities. There is a dominance of economic issues over any other issue or rather the belief that that the market regulations can play a role in solving the environmental problems. However, this thought leads to challenges regarding the communities’ and indigenous peoples’ needs and concerns.
Property rights as a form of ocean governance
The matter in the property right of the ocean can be said to be both timely and complex. Timely due to the reason that the oceans are in a state of where the transition is happening from no one’s jurisdiction to someone’s jurisdiction. The reason for this transition is that the resources of the seas’ have more economic pressure due to the sudden interest shown in it by a host of newly emerging nation-states. The complexity is not only due to the unclear jurisdiction but also the requirement of someone to exercise jurisdiction be it by some agent, and that agent may be some group within a nation, a nation itself or some group of nations over the wide range of ocean resources and uses. Regarding fisheries, there can be a certain complication due to the nature of the resource and also the fact that fish don’t respect man’s boundary. Due to some of these problems, it is quite impossible to deal in detail with all the problems which are related to acquisition and exercise of property rights in the oceans.
Ways to overcome the hurdles
The primacy which is given to zonal and sectoral aspects of ocean governance only acts as a hurdle as the States are only given the powers to work within their respective jurisdiction. To overcome this obstacle there are two feasible steps that can be taken. First, there is a need for cooperation between states, between states and international organisations and also among the international organisations. The industries and private sectors also need to feature in.
Second, the protection of the marine environment should be seen as a common concern for all and all the subjects of international law should have an aim to ensure the same. So, any form of activity which causes harm to the marine environment in any space of jurisdiction should be seen as a matter of shared concern. This not only includes the activities which are taking place at sea but also the activities which are taking place at land and are causing pollution and also through the atmosphere as mentioned in Article 207 and Article 212 of the UNCLOS respectively.
Conclusion
Ocean governance is a very important aspect to protect the right of the various states over the resources and to avoid any conflicts between them regarding it. Also, there is a division between sectors and zones to implement the same. There are various norms and tools which are made which help in proper realisation of the rights of the various states and guiding them about their jurisdictional rights.
References
- https://digitalrepository.unm.edu/cgi/viewcontent.cgi?article=3221&context=nrj
- https://www.iaea.org/sites/default/files/oceans0614_0.pdf
- https://www.researchgate.net/publication/336565902_Law_and_Policy_Dimensions_of_Ocean_Governance
- https://link.springer.com/chapter/10.1007/978-3-030-20389-4_3#Sec14
- https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
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