A Brief Introduction to the Legal Regime for the Oceans

On 1 November 1967, Malta’s Ambassador to the UN, Arvid Pardo, asked the countries of the world to recognize a looming conflict that could devastate the oceans. In a speech to the UN General Assembly (UNGA), he called for “an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction.” The speech set in motion a process that spanned 15 years and saw the creation of the UN Seabed Committee, the signing of a treaty banning nuclear weapons on the seabed, the adoption of the declaration by the UNGA that all resources of the seabed beyond the limits of national jurisdiction are the “common heritage of mankind,” and the convening of the Stockholm Conference on the Human Environment. These were some of the factors that led to the Third UN Conference on the Law of the Sea, during which the UN Convention on the Law of the Sea (UNCLOS or the Convention) was adopted. This brief introduction offers a chronological summary of key decisions and meetings related to the development of international policy for the Law of the Sea, the Fish Stocks Agreement and marine biodiversity in areas beyond national jurisdiction.

UNCLOS: Opened for signature on 10 December 1982, in Montego Bay, Jamaica, at the third UN Conference on the Law of the Sea, UNCLOS sets forth the rights and obligations of States regarding the use of the oceans, their resources, and the protection of the marine and coastal environment. The Convention entered into force on 16 November 1994.

UNCED: The UN Conference on Environment and Development (UNCED) was held in June 1992, in Rio de Janeiro, Brazil. Chapter 17 of Agenda 21, the programme of action adopted in Rio, addresses “the protection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use and development of their living resources.” This remains the fundamental programme of action for achieving sustainable development of oceans and seas. Agenda 21 also called on the UNGA to convene the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, to address problems related to the harvesting of these stocks on the high seas (see below).

CBD COP-2: At its second meeting (November 1995, Jakarta, Indonesia), the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD) agreed on the “Jakarta Mandate on Marine and Coastal Biological Diversity,” which led to the creation of a work programme in this area. COP-2 also adopted a decision requiring the Executive Secretary, in consultation with the UN Division for Ocean Affairs and the Law of the Sea (UNDOALOS), to undertake a study of the relationship between the CBD and UNCLOS with regard to the conservation and sustainable use of genetic resources on the deep seabed.

UNFSA: The Agreement for the Implementation of the Provisions of UNCLOS relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA) was adopted in August 1995, entered into force on 11 December 2001, and currently has 57 parties. The UNFSA aims to ensure the long-term conservation and sustainable use of straddling and highly migratory fish stocks, and includes general principles for their conservation and management. An associated Assistance Fund was established by the UNGA in 2003 to assist developing States parties in UNFSA implementation. Following UNGA resolution 56/13, informal consultations of States parties (ICSP) have been held at UN headquarters in New York every year since 2002 to consider the regional, subregional and global implementation of the Agreement and prepare for the Review Conference.

UNGA RESOLUTION 54/33: On 24 November 1999, the UNGA adopted resolution 54/33 on the results of the review undertaken by the Commission on Sustainable Development at its seventh session on the theme of “Oceans and seas.” In this resolution, the UNGA established an open-ended informal consultative process to facilitate the annual review of developments in oceans affairs. The UNGA decided that the Consultative Process would consider the Secretary-General’s annual reports on oceans and the law of the sea, and would suggest particular issues to be considered by the UNGA, with an emphasis on identifying areas where intergovernmental and inter-agency coordination and cooperation should be enhanced. The resolution further established the framework within which meetings of the Consultative Process would be organized, and decided that the UNGA would review the effectiveness and utility of the Consultative Process at its 57th session.

ICP-1 to 3: The first three meetings of the Informal Consultative Process (ICP) were held in New York, US. Each meeting identified issues to be suggested as well as those that could benefit from its attention in the future, and elements to be proposed to the UNGA. The first meeting of the Consultative Process (30 May-2 June 2000) consisted of discussion panels addressing fisheries, and the impacts of marine pollution and degradation. The second meeting of the Consultative Process (7-11 May 2001) focused on marine science and technology, and coordination and cooperation in combating piracy and armed robbery at sea. The third meeting of the Consultative Process (8-15 April 2002) included discussion panels on the protection and preservation of the marine environment, capacity building, regional cooperation and coordination, and integrated oceans management. 

WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT: At the World Summit on Sustainable Development (WSSD) (26 August - 4 September 2002, Johannesburg, South Africa), States negotiated and adopted two main documents: the Johannesburg Plan of Implementation (JPOI) and the Johannesburg Declaration on Sustainable Development. Among the 11 chapters of the JPOI, which provide a framework for action to implement sustainable development commitments, Chapter IV on “Protecting and Managing the Natural Resource Base of Economic and Social Development” contains several paragraphs on the sustainable development of oceans. In addition, the JPOI underlined the need to: maintain the productivity and biodiversity of important and vulnerable marine and coastal areas, including beyond areas of national jurisdiction; facilitate the elimination of destructive fishing practices and the establishment of marine protected areas (MPAs), including representative networks by 2012 and time/area closures for the protection of nursery grounds and periods; and develop international programmes for halting the loss of marine biodiversity.

UNGA RESOLUTION 57/141: On 12 December 2002, the 57th session of the UNGA adopted resolution 57/141 on “Oceans and the law of the sea.” The UNGA welcomed the previous work of the Consultative Process, extended it for an additional three years, and decided to review the effectiveness and utility of the Consultative Process at its 60th session. In the resolution, the UNGA also encouraged relevant international organizations urgently to consider ways to integrate and improve, on a scientific basis, the management of risks to marine biodiversity of seamounts and certain other underwater features within the framework of UNCLOS.

ICSP-1: At its first meeting (30-31 July 2002), the ICSP discussed the review of UNFSA implementation by parties and through regional fisheries management organizations (RFMOs), implementation of Part VII (Requirements of Developing States), including the establishment of a programme of assistance for developing countries, changes in requested information and status of the report for parties and non-parties, and the future of the UNGA resolutions on fisheries-related issues, among other things. ICSP-1 agreed on a series of recommendations on the implementation of Part VII.

SBSTTA-8: At its eighth meeting (March 2003, Montreal, Canada), the CBD Subsidiary Body on Scientific, Technical and Technologic Advice (SBSTTA) noted the increasing risk to biodiversity beyond areas of national jurisdiction and recommended that the goal of the CBD’s work in this area should be the establishment and maintenance of MPAs, to conserve the structure and functioning of the full range of marine and coastal ecosystems, and provide benefits to both present and future generations.

ICP-4: The fourth meeting of the Informal Consultative Process (ICP-4) (2-6 June 2003, New York, US) adopted recommendations on the safety of navigation, the protection of vulnerable marine ecosystems, and cooperation and coordination on oceans issues. ICP-4 recommended that the UNGA, inter alia, invite relevant international bodies at all levels to urgently consider how to better address, on a scientific and precautionary basis, threats and risks to vulnerable and threatened marine ecosystems and biodiversity beyond areas of national jurisdiction, consistent with international law and the principles of integrated ecosystem-based management.

ICSP-2: At its second meeting (23-25 July 2003), the ICSP focused on the impact of UNFSA implementation on related or proposed instruments throughout the UN system, establishment of the Assistance Fund under Part VII and preparations of its draft terms of reference, facilitation of the involvement of international financial institutions in UNFSA implementation, and consideration of Part II (Conservation and Management of Fish Stocks).

UNGA-58: In resolution 58/240 of 23 December 2003, the UNGA invited the relevant global and regional bodies to urgently investigate how to better address, on a scientific basis, including the application of precaution, the threats and risks to vulnerable and threatened marine ecosystems and biodiversity beyond areas of national jurisdiction.

FIFTH WORLD PARKS CONGRESS: At the fifth IUCN World Parks Congress (8-17 September 2003, Durban, South Africa), participants adopted a recommendation on the protection of marine biodiversity and ecosystem processes through MPAs beyond national jurisdiction, in which they recommended that the international community as a whole, inter alia, establish a global system of effectively managed representative networks of MPAs.

CBD COP-7: At its seventh meeting (9-20 February 2004, Kuala Lumpur, Malaysia), the COP: included in the programme of work on marine and coastal biodiversity new items on MPAs and high seas biodiversity; highlighted an urgent need for international cooperation and action to improve conservation and sustainable use of biodiversity in marine areas beyond national jurisdiction, including through the establishment of further MPAs; and recommended that parties, the UNGA and other relevant international and regional organizations urgently take the necessary short-, medium- and long-term measures to eliminate and avoid destructive practices.

ICP-5: The fifth meeting of the Informal Consultative Process (ICP-5) (7-11 June 2004, New York, US) adopted recommendations on new sustainable uses of the oceans, including the conservation and management of the biological diversity of the seabed in areas beyond national jurisdiction. ICP-5 proposed that the UNGA encourage RFMOs with a mandate to regulate deep sea bottom fisheries to address the impact of bottom trawling, and urge States to consider on a case-by-case basis the prohibition of practices having an adverse impact on vulnerable marine ecosystems beyond areas of national jurisdiction, including hydrothermal vents, cold water corals and seamounts.

UNGA 59/24: In resolution of 59/24 of 17 November 2004, the UNGA called upon States and international organizations to take urgent action to address, in accordance with international law, destructive practices that have adverse impacts on marine biodiversity and ecosystems, and decided to establish an ad hoc open-ended informal working group to study issues relating to the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction.

THIRD WORLD CONSERVATION CONGRESS: The third IUCN World Conservation Congress (17-25 November 2004, Bangkok, Thailand) called for cooperation to establish representative networks, and develop the scientific and legal basis for the establishment, of MPAs beyond national jurisdiction, and contribute to a global network by 2012. The Congress also requested States, RFMOs and the UNGA to protect seamounts, deep sea corals and other vulnerable deep sea habitats from destructive fishing practices, including bottom trawling, on the high seas.

ICSP-3: At its third meeting (8-9 July 2004), the ICSP discussed new developments in UNFSA implementation by parties, including: the strengthening of flag State duties; implementation at the regional level, including the establishment of new RFMOs; updates on States’ initiatives at the global level; review of implementation of Part VII provisions, including contributions to the Assistance Fund; and preparatory work for the Review Conference.

ICP-6: The sixth meeting of the Informal Consultative Process (ICP-6) (6-10 June 2005, New York, US) adopted recommendations on fisheries and their contribution to sustainable development and considered the issue of marine debris. ICP-6 proposed that the UNGA encourage progress to establish criteria on the objectives and management of MPAs for fisheries, welcome the proposed work of the UN Food and Agriculture Organization to develop technical guidelines on implementation of MPAs and urge close coordination and cooperation with relevant international organizations, including the CBD.

ICSP-4: At its fourth meeting (31 May - 3 June 2005), the ICSP focused on the institutional, procedural and substantive issues related to the preparation for the Review Conference, also based on the Chair’s background papers on possible criteria for assessing the UNFSA’s effectiveness and possible initiatives for strengthening the substance and implementation of the Agreement’s provisions. Participants discussed a timeline and programme of work for the preparation of the Review Conference, a draft agenda for the preparatory meeting, and a set of recommendations to the UNGA related to the preparatory work and the convening of the Review Conference and its preparatory meeting.

UNGA-60/30: In resolution 60/30 of 29 November 2005, the UNGA recommended that States should support work in various forums to prevent further destruction of marine ecosystems and associated losses of biodiversity, and be prepared to engage in discussions on the conservation and sustainable use of marine biodiversity in the Working Group.

SBSTTA-11: At its eleventh meeting (November-December 2005, Montreal, Canada), SBSTTA recommended that the CBD COP: recognize the urgent need to enhance scientific research and cooperation for the conservation and sustainable use of deep seabed genetic resources, and the preliminary range of options for the protection of these resources beyond national jurisdiction; and request the Executive Secretary, in collaboration with UNCLOS and other relevant organizations, to further analyze options for preventing and mitigating impacts of some activities on selected seabed habitats.

FIRST MEETING OF THE WORKING GROUP ON MARINE BIODIVERSITY IN AREAS BEYOND NATIONAL JURISDICTION: The first meeting of the Ad Hoc Open-ended Informal Working Group of the UNGA to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (13-17 February 2006, New York, US) agreed on the need for short-term measures to address illegal, unregulated and unreported fishing and destructive fishing practices as the most urgent threats to marine biodiversity, as well as institutional coordination. Many delegates also agreed that there should be an ongoing process to advance discussions on sharing the benefits from marine genetic resources, avoiding the adverse impacts of marine scientific research on marine biodiversity, and facilitating the establishment of high seas marine protected areas.

ICSP-5: At its fifth meeting (20-24 March 2006), the ICSP served as a preparatory meeting for the Review Conference. Participants discussed recommendations for consideration by the Review Conference and focused on the modalities for the participation of non-parties in the Conference and the extent to which they would be able to participate in the decision-making process. As a contact group on this matter could not reach an agreement, Chair David Balton (US) presented a proposal for the relevant draft rules of procedure according to which the Conference may proceed to a vote on matters of substance with parties having one vote and non-parties having the possibility to request inclusion of their views in the record of the meeting. The proposal was opposed by some non-parties, but was approved by general agreement among the parties. ICSP-5 outcomes included a provisional agenda and organization of work for the Review Conference, provisional rules of procedure, and elements for assessing the adequacy and effectiveness of the Agreement.

FISH STOCKS REVIEW CONFERENCE: The Review Conference for the UNFSA (22-26 May 2006, New York, US) adopted a final report that highlights: a commitment to integrate ecosystem considerations in fisheries management; the urgent reduction of the world’s fishing capacity to levels commensurate with the sustainability of fish stocks; urgent strengthening of regional fisheries management organization mandates to implement precautionary and ecosystem approaches to fisheries management; performance reviews of regional fisheries management organizations; a commitment to develop a legally binding instrument on minimum standards for port State measures and a comprehensive global register for fishing vessels; expanded assistance to developing countries; and continuation of a dialogue to address concerns raised by non-parties. Delegates also decided to resume the Review Conference no later than 2011.

ICP-7: The seventh meeting of the Informal Consultative Process (ICP-7) (12-16 June 2006, New York, US) brought together over 400 representatives from governments, intergovernmental organizations, non-governmental organizations and academic institutions. During the meeting, delegates convened in plenary sessions to: exchange views on areas of concern and actions needed; discuss cooperation and coordination on ocean issues; and identify issues that could benefit from attention in future work of the UNGA. A discussion panel was held to consider ecosystem approaches and oceans.

ICSP-6: The sixth round of ICSP (23-24 April 2007) considered implementation of the Agreement, progress in the implementation of the outcomes of the Review Conference of the Agreement, and preparatory steps for the resumption of the Review Conference. A side event on recommended criteria for reviewing the performance of Regional Fisheries Management Organizations (RFMOs) made progress towards drafting a list of suggested criteria for RFMO review. 

ICP-8: The eighth meeting of the Informal Consultative Process (ICP-8) (25-29 June 2007, New York, US) organized its discussions around the topic of “Marine genetic resources” (MGRs). Co-Chairs Cristián Maquieira (Chile) and Lori Ridgeway (Canada) developed a draft text of elements to be suggested to the UNGA, drawing on panel discussions, although delegates were unable to agree on key language referring to the relevant legal regime for MGRs in areas beyond national jurisdiction. As a result, no consensus text on elements was forwarded to the UNGA at its next session. However, the Co-Chairs announced that they would include the draft elements and recommendations within the Co-Chairs’ Report of ICP-8 to the UNGA, including an explanation of the divergence of views.

ICSP-7: The seventh round of ICSP (11-12 March 2008, New York, US) was attended by some160 participants and focused on reviewing progress towards the implementation of the UNFSA, including outcomes of its 2006 Review Conference, and considered the date of the resumed Review Conference and the next round of informal consultations. The two key achievements of the consultations were the in-depth engagement in discussing the obstacles to wider participation in the UNFSA by non-parties and developing countries, and agreeing on resuming the Review Conference in 2010 and the modalities for its preparatory process.

SECOND MEETING OF THE WORKING GROUP ON MARINE BIODIVERSITY BEYOND NATIONAL JURISDICTION: Delegates to the second meeting of the Ad Hoc Open-ended Informal Working Group of the UNGA to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (28 April - 2 May 2008, New York, US) exchanged views on the issues, agreeing to acknowledge differences of opinion over legal interpretations and the existence or nonexistence of regulatory and governance gaps. The Group concentrated on practical measures to conserve and protect marine biodiversity beyond national jurisdiction. Participants to identify common ground on issues, such as the implementation deficit in existing agreements, the need for marine scientific research and the continuation of the Working Group. The outcome of the meeting – a Co-Chairs’ Draft Joint Statement to be submitted to the 63rd session of the UNGA – included issues that the UNGA may wish to consider referring back to the Working Group.

ICP-9: The ninth meeting of the UN Open-Ended Informal Consultative Process on Oceans and the Law of the Sea (ICP-9) took place from 23-27 June 2008, at UN headquarters in New York, US. During the week, delegates met in plenary sessions and held a discussion panel on maritime security and safety. Delegates negotiated elements for consideration by the plenary and to be forwarded to the UNGA and expressed their desire to reach consensus, especially given that ICP8 was unable to reach agreement and the ICP’s mandate is set to be renewed by the UN General Assembly (UNGA) in 2008. Sticking points in the final hours of negotiations related to the inclusion of references to illegal, unreported and unregulated fishing and transport of nuclear waste, although compromise language was agreed on both of these elements and delegates forwarded their recommendations to the UNGA for consideration at its 63rd session under the agenda item “Oceans and the law of the sea.”