Securing A Sustainable Future for the
Oceans Beyond National Jurisdiction
Robin Warner
Australian National Centre for Ocean Resources and
Security
University of Wollongong
Gaps in the High Seas Legal and
Institutional Framework
• The legal and institutional regime for the high seas is
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fragmented and incomplete.
Governance, regulatory, substantive and implementation
gaps limit the effectiveness of the high seas regime in
securing sustainable conservation and use of the marine
environment beyond national jurisdiction, its resources
and biodiversity.
The effective protection of the high seas marine
environment requires an integrated governance structure
which adequately protects not only the interests of
individual users but also of the international community.
Governance Gaps
• Governance gaps include those resulting from
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the Grotian principle of high seas freedoms and
the predominance of flag State jurisdiction on
the high seas.
There is no international rule making structure
for the high seas which can hold individual
states accountable for their failure to act in the
face of State actions which have adverse
impacts on the high seas marine environment.
Regulatory Gaps
• Regulatory gaps include gaps in high seas
coverage by RFMOs and arrangements
which may not apply to all fisheries within
a geographic region
• Lack of coordination and cooperation
between the fisheries regimes and
between the fisheries and environmental
sectors.
Substantive Gaps
• No regulatory regime for existing and emerging high
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seas activities including marine scientific research,
bioprospecting, the laying of cables and pipelines,
military activities, climate change mitigation schemes
floating installations and deep sea tourism.
Lack of clarity on the interaction of the legal regimes of
the high seas and the outer continental shelf.
No global rules which elaborate on the basic
requirements in the LOSC and CBD for environmental
impact assessment for existing and emerging high seas
activities.
Implementation Gaps
• High seas management is fragmented among a
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variety of sectoral and geographically based
bodies including the treaty regimes established
under the IMO and RFMOs.
Implementation of these regimes is largely
dependent on compliance by flag States many of
whom are unable or unwilling to fulfil their
obligations to protect the high seas marine
environment.
Central Challenge of High Seas
Governance
• The central challenge for high seas governance
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stems from the nature of the high seas as a
common property open access regime with
equal rights of user and exclusive flag state
jurisdiction.
The freedom of open access leads inexorably to
the tragedy of the commons.
Flag state jurisdiction is ineffective in halting this
tragedy.
The Legal Basis for a New Approach to
High Seas Governance
• In view of the flaws in the current high seas
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regime, the time has come for a more
communitarian approach to high seas regulation
based on the integrated and comprehensive
regulation of all high seas uses and activities in
the common interest of all states.
Do any principles exist on which to base an
international regime consistent with the LOSC?
The Legal Basis for a New Approach to
High Seas Governance
• Expansion of the application of the common
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heritage of mankind principle is often proposed
as a starting point for discussion of a new high
seas governance regime.
A CHM regime differs from a common property
regime in that it allows all states to participate in
the benefits gained from exploitation of a
resource even if they cannot participate in its
exploitation.
The Legal Basis for a New Approach to
High Seas Governance
• Expanding the application of the CHM regime to
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the high seas is difficult as the definition and
scope of the principle are matters of deep
contention.
It may be possible to devise a regime which
straddles the divide between the common
property and CHM principles in a manner which
protects the common interests in the resources
of the high seas and the common concern of
humanity for the protection and preservation of
the marine environment.
The Legal Basis for a New Approach to
High Seas Governance
• Common ground might be found in the concept of the
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high seas as a public trust to be used and managed in
the interests of present and future generations.
Open access to high seas resources would continue but
those who exercise that access must do so subject to
rules for sustainable management adopted by regional
stewards and potentially a small percentage contribution
from profits derived from resource exploitation to a
global oceans organization or regional seas organizations
for ongoing environmental protection of marine
environment beyond national jurisdiction.
The Legal Basis for a New Approach to
High Seas Governance
The public trust model could be applied as
the juridical basis for establishment of a
coherent integrated global system of
fiduciary oceans governance which
regulates access and use (as opposed to
access and benefit sharing) in the
common interest/common interest of all
The Shape of a 21st Century Regime for
High Seas Governance
Building on the concept of international
public trusteeship or even prior to the
establishment of a trust, a range of
mechanisms and tools might be adopted
by the international community to address
the deficiencies of the current high seas
regime.
Improving Global Coordination and
Cooperation
• Stronger horizontal and vertical links should be
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forged between regional environmental
protection organisations and other global and
regional bodies with sectoral responsibilities for
high seas activities such as RFMOs, IMO, ISBA,
FAO and regional port state groups eg
intergovernmental steering committee.
Development of integrated oceans management
bodies building on existing regional seas
arrangements (trustees for the high seas).
Improving Global Coordination and
Cooperation
• Global instrument or mechanism could be
adopted which:
– establishes a global body with the power to review
and endorse high seas conservation and management
programmes and measures initiated at the regional or
sectoral level or provides criteria against which such
measures can be measured
– Establishes a default mechanism for the interim
regulation of new and emerging activities pending
formal regulatory measures
Improving Global Coordination and
Cooperation
This instrument could take a number of
form including an implementing
agreement to the LOSC or a stand alone
agreement.
Improving Participation and
Compliance
• An effective high seas governance regime
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requires the articulation of clear criteria and
standards against which the conduct of states
(beneficiaries of the trust) can be judged and a
response determined by the integrated oceans
management bodies eg capacity building,
technical assistance, arrest, port and licence
denials, trade measures.
These criteria and standards could be included
in a global binding instrument.
Improving Assessment, Evaluation and
Regulation of Existing and New Uses
• Fundamental to protection of the high seas
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marine environment is the ability to assess and
monitor existing and emerging uses of the high
seas to mitigate adverse effects on the marine
environment.
Application of modern conservation norms such
as the precautionary approach, the requirement
for prior and ongoing environmental impact
assessment and an ecosystem based approach
to all high seas activities is imperative.
Environmental Impact Assessment for
High Seas Activities
• There are a number of examples of EIA systems
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in marine areas beyond national jurisdiction and
in transboundary areas of ocean space which
could be used as models for an instrument or
guidelines on EIA for high seas activities.
These include the ISBA Polymetallic Nodules
Regulations, the EIA Annex to the Madrid
Protocol to the Antarctic Treaty and the
Guidelines for EIA in the Arctic.
Environmental Impact Assessment for
High Seas Activities
Features of EIA systems in international and transboundary
areas include:
– Requirement for prior and ongoing EIA of activities by
proponents
– Collection of environmental baseline data
– Establishment of impact reference zones and preservation
reference zones
– Establishment of thresholds at which adverse impacts on the
environment justify suspension of activities
– Guidelines for technical responses to incidents or activities which
cause serious harm to the marine environment.
– Mechanisms for determining liability for damage to the marine
environment from particular activities.