International Law and Ocean Use Management

The evolution of ocean governance

Lawrence Juda

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781134830794
• Edition: 1
• Topic: Negocios y empresa
• Subtopic: Negocios en general

This book places contemporary problems of ocean use management in historical context beginning with the time of Hugo Grotius, whose seminal 1609 work The Freedom of the Seas was the basis of ocean law for the next three centuries. Individual use problems are dealt with in detail and include overfishing, migrating fish stocks and fish wars, oil drilling, deep sea mining and marine pollution. Throughout the author notes the need to seek solutions in ocean management from a more integrated perspective. Emphasis is placed on the United Nations Conference on the Law of the Sea and the resulting agreements. This book therefore presents a unique breadth of view which will make it salient to policy makers, diplomats, scholars and ocean users.

1

INTRODUCTION

The use of the world's oceans raises questions which are central to the human experience. The oceans blanket some 71 percent of the earth's surface, provide the human race with food and recreational opportunities, serve as a highway for world commerce, and cover immense sources of usable energy and other nonliving resources. They have also been used inadvertently and purposefully as a sink in which to deposit the waste products of civilization.

Because of the pressure of growing population, particularly in coastal areas, and contemporary technology and associated effects, the human race is increasingly in a position to affect the workings of the oceans’ natural systems, to deplete its renewable resources, and to detract from the natural beauty of the sea. Yet we also know more about the physical environment than did earlier generations and we continue to expand our understanding of the world around us. How do we apply all that we have learned over the years of the characteristics and natural processes of the oceans and the oceans’ interplay with the earth's land masses?

In our treatment of ocean space we are displaying our approach to the wider question of human interaction with the physical environment. Myriad questions of values arise and we are forced to contemplate ever-widening systems of human cooperation to protect our common welfare. The need for legal and institutional mechanisms to manage and to regulate human behavior in relation to the world's oceans is ever more apparent.

The management of the uses of ocean space is a central focus of the field of marine affairs. Such management seeks, in accordance with some system of politically determined values, which is either explicit or implicit, to increase the benefits that may be derived from the resource and non-resource uses of the ocean. At the same time, it attempts to minimize detrimental effects on the ocean environment and to ameliorate conflict of use situations. In general it tries to provide for a directed balance among the various uses of ocean space as well as to protect the ocean environment from damage to its long-term viability.

But why and how did the need for such management develop? After all, for the most part, from the seventeenth century until very recently, the resources and uses of the seas beyond a narrow band of waters adjacent to the coast were available to all. In this earlier period the status of ocean space as a “commons,”vailable to all but owned by none, seemed acceptable.¹ Fish seemed to be limitless in the ocean and serious conflict of use situations were barely starting to emerge. In a world of very limited technological capability, with a relatively small population which typically lived out its life in a narrowly circumscribed geographic area around the point of birth, pressure on ocean resources and space was quite limited.

In such a world freedom of the seas as the organizing, legal principle could be seen as functional; as will be seen, however, freedom of the seas has proven increasingly dysfunctional in the face of the emergence of new technologies, a changing pattern of human use of ocean space, and altered human perceptions and expectations of ocean areas. Over time it became apparent that the various uses of ocean resources and space required some order. As a consequence of the status of most of the world's ocean space as a commons and because of the physical and biological characteristics of the oceans such that events and uses occurring in one place have impact in other locations, management efforts must of necessity involve some degree of international cooperation.

What this study seeks to do is to provide an understanding of how and to what extent management efforts have emerged through the evolution of the international legal regime since the time of Hugo Grotius, the father of modern international law. What factors have led states to adapt their behavior patterns to a changing world and to what degree does the experience of the human race with the oceans allow us to be optimistic as we face a number of problems which call for cooperative and collective responses? Does the advance of scientific understanding of the operation of natural systems contribute to our approach to ocean management or do scientific data merely provide useful ammunition with which to further parochial interests? How and to what extent have we adapted our practices and principles in the face of a changing reality? How have relevant legal regimes and institutional arrangements been altered in this world of change?

An examination of the historical record of mankind's use of the world's oceans is worthwhile in itself but the continuing human experience with the oceans may also be very informative as to the general human condition and potential; accordingly, for that reason, too, it is well worth pondering carefully.

Legal regimes and institutional arrangements arise and evolve in reaction to perceived needs of a real rather than a hypothetical nature. This study provides an examination of the emergence of ocean management concepts and arrangements as a consequence of the interplay and cumulative effect of scientific and technological advances (knowledge and know-how) and human perceptions and values which, in turn, impact the development of the legal and political system of ocean governance.

Manganese nodules were discovered on the deep ocean floor during the 1870s expedition of HMS Challenger but pressure for a legal regime to govern their exploitation came nearly one hundred years later when it appeared that such exploitation was actually on the horizon. The regime of the continental shelf emerged only when the possibility of offshore oil exploitation became a reality and required a legal framework in which it could proceed. Both manganese nodule mining and offshore oil development raised questions, too, of who should benefit from such activities and how and by whom those activities should be regulated.

As one thoughtful writer on international regimes, Oran Young, has noted, it is very important “to avoid thinking of regimes as rigid and unchanging structures whose existence is somehow separate from ongoing political and economic interactions within the relevant social structure.”² International law and legal arrangements provide the formal base of international regimes and are themselves subject to change. Justice Jennings of the International Court has observed that “contemporary international law cannot be fully understood unless it is seen in the perspective of the passage of time and of the changes which go with it.”³ Over time, once-governing principles of ocean law appear to become anachronistic in the face of changing political, economic, social, and technological conditions. Accordingly, ocean law and the management systems associated with it evolve to meet new conditions and newly perceived needs.

The legal regime of ocean space, like all legal regimes, attempts to provide some order by indicating the nature, requirements, and limits of permissible behavior and by establishing valid expectations for that behavior. In this sense the law serves a regulatory function, limiting the possible actions that states and other entities with international legal personality may take. Since international law serves as a check on state behavior and limits the free play of a state's sovereignty, states seek to influence the character of the legal regimes and rules to which they are subject.

Not only do legal regimes and rules have regulatory effects, they also have important allocative implications as a consequence of the varying incidence of the same law on different states and their populations. This reality also strongly motivates states to seek to shape the rules of the international legal system. Writing prior to World War II, Joseph Walter Bingham asserted that:

there is no place in the history of international affairs which evidences more strikingly the part which selfish national interests play in the development of the doctrines of international law than the history of fishery claims and their effects on legal opinions concerning the jurisdiction over sea areas.⁴

As concern with the need for conservation of the living resources of the ocean emerged more strongly in the 1950s and 1960s, Shigeru Oda was to note that each state was inclined to minimize its own sacrifice and to maximize its own share of resources and, thus, the problem of conservation was intertwined with that of resource allocation.⁵ A legal system providing for jurisdictional and preferential fishing rights for coastal states, for example, has allocative implications just as does a system of free and open competition for resources. Not surprisingly, principled arguments on the law of the sea – such as those of Grotius favoring freedom of the seas or those of Selden in opposition to Grotius – are often used to cloak or enhance more practical concerns.⁶

What are the changing imperatives, the driving forces of evolving international ocean law? How has the legal regime of the oceans changed over time? To what extent is it capable of meeting contemporary needs, given the constrictions imposed upon it by the reality of a political system of sovereign states and increasing interest in ecological frameworks which may be difficult to integrate with traditional conceptions of jurisdictional limits? How can that system incorporate and reflect the growing pressures for utilization of ocean space and the consequences of such an ever more varied pattern of utilization? Are there arrangements or institutional mechanisms which can be employed to circumvent these inadequacies, given both the regulatory and allocative implications of ocean law regimes?

A cursory consideration of daily world and national events may well suggest that the human race has many difficulties in managing terrestrial affairs despite thousands of years of experience. Given this history, what may we expect in attempts to manage the uses of the world's oceans? Yet despite any skepticism and reservations, there would appear to be no alternative to imposing some type of order in regard to the human use of the ocean environment and its resources.

The imperatives which drive us to this conclusion are varied and have a substantial cumulative weight. They include the following considerations:

1   At least some of the important resources of the world's oceans are finite in human terms and the need for conservation of the limited resources found there is increasingly accepted. The oceans, though vast, are limited in the resources of the greatest importance to mankind. What this means is that there are resources which may be exhausted through concentrated human effort. The potential to exhaust available resources is a relatively new factor and stems from at least three elements: growing demand pressures fed by sharply increasing populations with their attendant needs, the increase in expectations in lifestyles, which appears to be linked to greater levels of consumption of all types of material things, and the development of new and ever more effective means of exploitation of ocean resources.
    Two important examples of such resources are ocean fisheries and offshore oil. Fisheries are of great importance since they provide sustenance to much of the world's population and for many serve as the main source of protein, without which proper human development does not appear possible. There is growing concern that the limits of exploitability have been reached in regard to a number of particular species of marine fish. Oil, a major component of the energy equation, particularly for the developed world, is increasingly being derived from offshore sources. Like its land-based counterpart offshore oil is finite in quantity. When it is gone, there is no more. In both instances, fisheries and offshore oil, it is important to maximize the rational exploitation and conservation of these resources so as to minimize waste. This requires some type of management effort.

2   While the oceans cover some 71 percent of the earth's surface, the human use of the ocean is extremely concentrated, with by far the majority of activities occurring in areas close to the coast. Two major reasons contribute to this pattern of human use. First, one must consider the simple concepts of propinquity and utility. Other things being equal, what is closer at hand gets used first. Why travel farther than is necessary to achieve the same result? Greater distances require greater efforts and involve greater costs. Whether in terms of fishing, waste disposal, or recreation it is simply easier to use resources which are nearby.
    Second, while oceans extend over vast areas, the resources which they contain or cover are not evenly distributed. The connection between the presence of fisheries and continental shelf areas of the world has long been noted. According to the Food and Agriculture Organization some 95 percent of the world fish catch comes from areas within 200 miles of the coast.⁷ Why then are these areas so heavily fished relative to areas beyond? Because of propinquity but also, in a variation of the famous statement of bank robber Willie Sutton, these areas are heavily fished because that is where the fish are. A similar situation is found in relation to offshore oil and gas. Deposits of such minerals are found in the continental shelf areas and, apparently, not beyond. Because of such realities, human activity in ocean areas is concentrated in but a portion of the world oceans.

3   Conflict of use situations are becoming more apparent with attendant and associated opportunity costs. As existing uses such as fishing intensify and diversify and as new uses emerge, the interference between and among uses increases. Vessel traffic in narrow waterways has grown. The amount of effort devoted to fishing activities has increased and new gear types and catch strategies have emerged which may have interactive effects on other uses or even other types of fishing. Some uses simply obviate the use of an area of ocean for other purposes. The dumping of toxic wastes, for example, makes the dumping area unusable for fisheries.
    In general, it is now recognized that particular uses generate externalities: that is, unintended effects.⁸ Different uses of the same ocean space may coexist but they may require some degree of regulation to govern their relationship. Sea lanes and traffic separation schemes may be necessitated by the existence of offshore oil rigs. Without any type of regulation chaos could emerge with a variety of unpalatable ecological, economic, and political consequences.

4   The protection of the marine environment has become an important value. While human concern might at first focus on protection of resources it is becoming increasingly clear that attention must be given to the protection of the environment which sustains renewable resources and allows the enjoyment of the other uses of the sea. Some very special environmental systems ranging from coral reefs, to mangrove swamps, to the Antarctic may be especially vulnerable to environmental damage and require special attention.
    In the broadest sense, the oceans sustain human life through their role in sea-atmosphere interchanges and in temperature moderation. Increasingly, science is developing a better understanding of ecological interrelationships and the general web of life systems. The human impact on the physical environment is becoming more obvious over time, may threaten the normal cycles of nature, and may have untold consequences for human survival and well-being.

5   Human use of the marine environment and its resources has contributed to the potential for both international conflict and cooperation. As the significance of ocean resources and uses becomes ever more apparent, given considerations of limited resources, the need for conservation and en vironmental protection, and the conflicts among ocean uses, it is not surprising that international political and legal problems have arisen. Politically, who should benefit from the uses of ocean resources and the ocean environment? Historically, in this century alone, the world has witnessed grave crises, armed confrontations, and even wars relating to claims of freedom of the seas, fishing rights, and offshore jurisdictional claims.
    In legal terms, who has jurisdiction and legal authority over the ocean areas of the world? To what extent? For what purposes? How may the shortcomings of national jurisdictional authority be overcome so as to achieve effective management of the world's oceans and their resources? Modern international ocean law has been evolving since the seventeenth century in an effort to respond to such questions. Further, in a variety of instances international cooperative ventures have been developed and have achieved some degree of success.

6   Finally, an important factor which impacts all of the others is the changing nature of human needs, values, and expectations. We react to the world as we see it and as we understand it. How do we see the world's oceans? What are the dominant views of the oceans and their resources? What do we believe the oceans offer us? Is there any cost in utilizing the oceans and their resources? Clearly, human understanding and conceptions of the oceans have changed over time and, accordingly, so too have governmental approaches to the oceans and their use.

This study is not meant to provide a comprehensive examination of all efforts to manage ocean uses but rather represents an attempt to survey some of the major and continuing problems and different approaches which have been sought to address them. Hopefully, past practice will teach us something and assist in the shaping of the future of ocean use management efforts.

NOTES

1  For a classic statement of the problems associated with a commons see Garrett Hardin, “The Tragedy of the Commons,” 162 Science 1243–1248 (1968).

2  Oran Young, Resource Management at the International Level (London: Frances Pinter, 1977) p. 46.

3  Robert Y. Jennings, “Introduction,” in Alfred Dufour, Peter Haggenmacher, and Jiri Toman (eds.), Grotius et l'ordre juridique international (Lausanne: Payot Lausanne, 1985) pp. 35–36.

4  J. W. Bingham, Report on the International Law of Pacific Coastal Fisheries (Stanford: Stanford University Press, 1938) p. 1.

5  Shigeru Oda, International Control of Sea Resources (Dordrecht: Martinus Nijhoff Publishers, 1989), reprint of 1962 edition with a new introduction, pp. 63–66.

6  Pittman Potter observes that “the works of Grotius and Selden and their coadjutors were products of personal and national desires rather than works of pure and unbiased juristic science.” Potter, The Freedom of the Seas in History, Law, and Politics (New York: Longmans, Green & Co., 1924) p. 61.

7  FAO, Report of the FAO World Conference on Fisheries Management and Development (Rome, 1984), Appendix D, p. 1.

8  The application of the concept of externalities to marine policy is seen, for example, in Arild Underdal, “Integrated Marine Policy: What? Why? How?,” 4 Marine Policy 159–169 (1980).

2

CHANGING PERCEPTIONS OF THE OCEANS AND THEIR RESOURCES

Grotius to the turn of the twentieth century

If human beings react to the world as they perceive it, then perceptual changes have behavioral significance. From the time of Grotius to the beginning of the present century advances in scientific knowledge and understanding and in technological capabilities occurred which forced a reevaluation of h...

Table of contents

• Front Cover
• INTERNATIONAL LAW AND OCEAN USE MANAGEMENT
• OCEAN MANAGEMENT AND POLICY SERIES
• Title Page
• Copyright
• CONTENTS
• List of figures and tables
• Preface
• Acknowledgments
• 1 INTRODUCTION
• 2 CHANGING PERCEPTIONS OF THE OCEANS AND THEIR RESOURCES: GROTIUS TO THE TURN OF THE TWENTIETH CENTURY
• 3 THE TURN OF THE CENTURY TO WORLD WAR II
• 4 WORLD WAR II AND THE POSTWAR WORLD
• 5 THE 1958 AND 1960 UNITED NATIONS CONFERENCES ON THE LAW OF THE SEA
• 6 THE ROAD TO THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA
• 7 THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA
• 8 THE POST-UNCLOS-III SYSTEM
• 9 CONCLUSIONS
• Index