International Legal Framework for Joint Governance of Oceans and Fisheries: Challenges and Prospects in Governing Large Marine Ecosystems (LMEs) under Sustainable Development Goal 14
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While undertaking a systematic policy review, this research paper examined various sources, including scholarly journals, books, legal documents, and policy papers, as shown in Figure 1. It is important to note that this paper focused on the international legal framework for the joint governance of ocean and fisheries and not on all the regional conventions and treaties or the domestic laws of individual States. The methodology aims to identify the gaps between fisheries and ocean governance at regional levels, which causes severe impacts on sustainability. Additionally, when conducting a policy review on this topic, this section and the next section thoroughly considered both the positive and negative aspects of the international legal framework.
The literature review begins with a review of international law with a timeline, as shown in Figure 1, that includes the interpretation of the UNCLOS and UNFSA by the international courts and tribunals. The international courts and tribunals, including the International Tribunal for the Law of the Sea (ITLOS) and Special Courts (mainly the Permanent Court of Arbitration PCA and International Court of Justice ICJ), serve as international forums for the resolution of disputes between nations regarding the interpretation and application of the UNCLOS [16]. The interpretation by these courts and tribunals while using the Vienna Convention on the Law of Treaties (Vienna Convention) has been valuable in resolving disputes between nations concerning the joint governance of ocean and fisheries resources or LMEs [17].
As already discussed, the governance of oceans and fisheries is part of the broader subject of IEL. It was not until the Stockholm Declaration provided principle seven that obliged States to protect the marine environment as an ecosystem [18]. Perhaps establishing the UNEP–Regional Seas Program is the most significant achievement made through the Stockholm Declaration in ocean governance. Such advancement in the governance of the LMEs was made through two critical international instruments, known as the Convention on Biological Diversity (CBD) and the United Nations Framework Convention on Climate Change (UNFCCC), signed during the Earth Summit [19,20].
Although the provision of the CBD that defines ‘biodiversity’ does not include ‘marine biodiversity’, the parties to the Earth Summit established a thematic program on ‘coastal and marine biodiversity’ during the COP2 [21]. During the negotiations of COP2, the Jakarta Mandate was produced, which reaffirms the critical need to address the conservation and sustainable use of marine and coastal biodiversity [1]. The Jakarta Mandate further articulated ecosystem approach, precaution, science–policy integration, and top-down and bottom-up governance of the oceans and fisheries. This approach under the Jakarta Mandate is designed under the IEL, UNCLOS, and UNFSA and implemented at various regional levels [1]. At regional levels, various regional fisheries management organizations (RFMOs) are used for fisheries governance, and multilateral environmental organizations (MEOs) are used for ocean governance under the MEAs. The importance of RFMOs was enhanced with the Declaration on Responsible Fisheries in Marine Ecosystems (RFME) and was transformed through the World Summit on Sustainable Development (Johannesburg Declaration) [21].
While examining the policy related to the joint governance of oceans and fisheries, it is essential to consider both the positive and negative aspects of the MEAs at regional levels. Both the RFMOs and MEOs or Regional Organizations are effective in facilitating collaboration between States for the protection of fisheries and marine resources. Some of these organizations updated their governance mechanisms with the emergence of the Sustainable Development Goals (SDGs) [16,18]. However, other organizations have been criticized for lacking enforcement and failing to protect vulnerable species and marine habitats adequately due to ineffective governance under SDGs [1]. There is ample evidence of such failure, as can be observed by the deterioration of the marine environment, fish, and fisheries: depletion, eutrophication, pollution, and emerging diseases [1].
2.1. Interpretation of the IEL for the Governance of LMEs
UNCLOS limits the cooperation of the States in governance for joint governance of the oceans and fisheries. The principles of freedom of fishing at high seas’ and ‘coastal State jurisdiction’ challenge the sustainability of the oceans and fisheries. Therefore, other IEL conventions and declarations are interpreted with UNCLOS to ensure the sustainability of the oceans and fisheries [1]. This position of the IEL has been restated and maintained by the ITLOS in the MV Saiga Case [22]. ITLOS, in the MV Saiga Case, referred to the ‘marine environmental protection’ while restraining that particular fishing vessel, and that espouses a view close to a description of the ‘joint governance of oceans and fisheries’ or LMEs [23].
Festering such conflicts challenges the effective implementation of SDG 14, which the ITLOS has already realized in terms of joint governance of LMEs. ITLOS in the MV Saiga Case particularly ordered to maintain the oceans’ ecosystem while utilizing the ‘applicable law’ provisions of the Vienna Convention [16,24]. Generally, the provision of the Vienna Convention on ‘applicable law’ along with the provision of UNCLOS on ‘law not incompatible with’ expands the jurisdiction of the international courts [16]. Therefore, international courts under the IEL focus on protecting vulnerable species, habitats, and ecosystems and enforcing conservation measures, such as fishing quotas and gear restrictions [25].
Additionally, international courts seek to ensure the equitable and sustainable use of marine resources by all States and to prohibit any activities that are likely to cause harm to the marine environment. Such realm is foundational for SDG 14, yet it is markedly different from what has been interpreted. There exist diverse perceptions of jurisprudential ties, which differ from what has been perceived in the existing literature. A complex formal and informal ocean and fisheries governance mechanisms may value rationalities if, following the jurisprudence of the international courts, ITLOS expanded its jurisdiction and applied IEL in the Southern Bluefin Tuna Case [26]. In this case, ITLOS abstained from three States (Japan, Australia, and New Zealand) from fishing under a regional MEA (Convention on the Conservation of Southern Bluefin Tuna-CCSBT) [27].
ITLOS applied both the UNCLOS and CCSBT without any overriding effect to protect the marine habitat (Southern Bluefin Tuna). Similarly, in the MOX Plant Case, a special tribunal constituted under the auspices of PCA stated that the ‘Convention for the Protection of the Marine Environment of the Northeast Atlantic (OSPAR Convention)’ is related to the UNCLOS and is mutatis mutandis applicable for the protection of the marine environment as per the IEL [28]. Broadly, the literature on maritime dispute settlement that reinforces joint governance of LMEs has also demonstrated how the settlement might result in unfair allocation, harming the marine environment and fisheries.
The Volga Case is another pertinent judgment by the ITLOS, in which the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR) and UNCLOS are jointly applied for marine and fisheries governance [29,30]. ITLOS stated in the Volga Case that while settling disputes, international courts shall also consider coordinated (joint) actions for combatting marine pollution and protecting marine habitats. The ITLOS further clarified joint governance of oceans and fisheries in its advisory opinion related to the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area. ITLOS underpinned the importance of governance of LMEs under the Rio Declaration while stating that ‘States shall have the responsibility to ensure that activities in the area shall be carried out in conformity with the UNCLOS’ [31].
In an advisory opinion in Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), ITLOS endorsed that all issues close to the oceans (including marine habitat, marine environment, and ocean resources) are compatible with the UNCLOS [32]. ITLOS further endorsed the Convention on the definition of the minimum access conditions and exploitation of fisheries resources within the maritime zones under the jurisdiction of SRFC Member States (MAC Convention) with the UNCLOS for the governance of LMEs under SRFC. ITLOS followed its position in Advisory Opinion on the Area by clarifying the scope of UNCLOS on ‘activities in the Area’ [33]. ITLOS made an important statement on the scope of ‘responsibility of the States conducting activities in the area’ that they must ensure that their activities do not cause damage to the LMEs in the Area.
Protection of the LMEs is the justiciability of the ITLOS, and the PCA follows that in the South China Sea dispute [34]. A special tribunal formulated under the UNCLOS in the South China Sea dispute stated that all States to dispute under (regional and international) MEAs and UNCLOS should preserve the marine resources (oil and gas), minerals, and fisheries to maintain marine biodiversity [35]. PCA stressed that all States in the South China Sea have ‘direct obligations’ regarding any activity, among them the obligations to apply the precautionary approach and conduct an environmental impact assessment. PCA has interpreted and applied provisions of the UNCLOS by considering best practices and standards developed by international organizations, such as the FAO and IMO.
The discussion above shows that the jurisprudence of international courts is trending toward joint governance of fisheries and oceans. Such debate is going to serve as a beginning point for reviewing the UNCLOS, MEAs, and IEL governing LMEs. The decisions of the international courts provide substantive indicators to review the existing law. These indicators are ‘applicable law’ (applying two or more legislation for the governance of LMEs) and ‘compatible law’ (the legislation compatible under the UNCLOS for the governance of LMEs). Such interpretation provides two indicators, i.e., ‘applicable law’ and ‘compatible law’, to support the ecosystem-based approach through precautionary measures and science–policy integration.
2.2. United Nations Policies for Joint Governance of Oceans and Fisheries
After decades of rapid geographical expansion and technical developments, the global community has observed a several-fold increase in annual harvests, the marine environment is in the worst condition, and fisheries are at a crossroads [36]. The present global governance mechanism of LMEs often experiences great difficulties in effectively containing an expansion of redundant exploitation capacity and pollution problems. Some of the main challenges facing the governance of LMEs today include IUU fishing, overfishing, resource collapse, endangered species, and the environmental state of the coastal and marine zones [37]. Therefore, it has been suggested on several occasions that integrating fisheries governance into ocean governance with an interface between various ecosystems is a way forward [25].
The United Nations (UN) recently established an interagency mechanism for the joint governance of oceans and fisheries, as shown in Figure 2. This agency is named UN-Oceans, which consists of representation from UNEP and FAO along with the Division on Oceans Affairs and Law of the Sea (UN-DOALOS), International Maritime Organization (IMO), and Intergovernmental Oceanographic Commission (IOC) (Figure 2) [38]. The UN-Oceans attempts to ensure coordination between the international organizations dealing with oceans and fisheries with an ecosystem-based approach. Such a mechanism is considered an adaptation of the oriented vision of sustainable development and conservation in the UNCLOS by subsequent practice building upon the Rio Declaration.
In the context of ocean governance, UN-DOALOS serves as the Secretariat at the UN to monitor UNCLOS implementation. It is also important to note that UN-DOALOS has been regularly reporting on the issues of the IUU and over-fishing to the UN Secretariat [1]. IMO regulates shipping, which includes ship sources of pollution and fishing vessels (equipment for fishing, maritime labor, and health of the ships). IMO governs shipping pollution and regularly reports to relevant UN bodies (for example, UN-Oceans and UNEP) under the International Convention for the Prevention of Pollution from Ships (MARPOL) and Convention on the Prevention of the Marine Pollution by Dumping of Wastes and Other Matter (Dumping Convention) [39,40]. IOC is responsible for the collective governance of the ocean and coasts. IOC also promotes mechanisms for sharing knowledge, information, and technology, as well as the coordination of various programs and capacity building in marine scientific research [1].
Governance of fisheries concerns two prominent organizations because ‘fisheries’ are considered an essential part of ‘nutrition’ and ‘marine ecosystems’. UNEP is responsible for effectively implementing CITES and CBD with the MEOs to protect marine habitats [41]. Moreover, UNEP also assists MEOs in sharing knowledge, information, good practices, and experiences to strengthen and maintain an overview of synergies between ongoing and upcoming marine environmental issues [42]. As a strategic partner of UN-Oceans, FAO aims to enhance coordination, coherence, and effectiveness of the CCRF and the Compliance agreement [43]. Moreover, the FAO aims to ensure that the duties of the states are to cooperate in the international, regional, and sub-regional implementation of the UNFSA.
The presence and use of ‘relevant institutions and international regulations’ have been developed within the UN systems, where the implementation of equitable principles came together with the recognition of all regional systems. The next section has developed a legal and theoretical framework that fosters SDG 14 based on this categorization of interconnections. The amalgamation of different organizations on a single platform shows that the UN, at the international level, is expanding its mandate for joint governance of oceans and fisheries [1]. Despite the milestones achieved with the adoption of the various mechanisms at international levels for the joint governance of oceans and fisheries, many issues remained insufficiently addressed. Such challenges can be addressed by the RFMOs and MEOs developed under the MEAs. The MEAs developing RFMOs and MEOs’ provisions contain far-reaching provisions with an ecosystem-based approach, precautionary measures, and science–policy integration.
2.3. MEAs Governing LMEs
Regional organizations play an essential role in the joint governance of oceans and fisheries. As regional organizations existed even before the UNCLOS entered into force, they provide a forum for collaboration between multiple States to protect shared fish stocks and marine ecosystems and to ensure the sustainable use of ocean resources [44]. One of the most critical aspects of these organizations is their ability to facilitate the negotiation and implementation of regional ocean and fisheries governance MEAs [45]. MEAs establish regional organizations that have various provisions for the sustainable management of oceans and fisheries. Most of these regional organizations govern in a manner that ensures institutional credibility, stability, and legitimacy in their decision-making processes [46]. These MEAs provide rules and regulations for the conservation, management, and utilization of ocean resources and can help to reduce overfishing and ensure the long-term sustainability of fish stocks.
The MEAs governing oceans and fisheries are substantive extensions of the UNCLOS, UNFSA, CCRF, and Compliance Agreement. The functions of both the RFMOs and MEOs vary at different levels. In principle, regional organizations cooperate for joint monitoring, information sharing, and capacity building. Regional organizations are functional when States see common gains in cooperating to overcome collective-action problems related to the use of regional seas situated in oceans [47]. In terms of LMEs, one can differentiate between regional organizations because some of them are for scientific research, some are for fisheries (Total Allowable Catches under UNFSA/UNCLOS), some are for marine environmental protection (under the UNCLOS and IEL), and some are for exploitation of ocean resources [25]. Therefore, some regional organizations lack credibility due to political and geographical conflicts between States in specific regions.
Such a crisis in the effectiveness of regional organizations has already been recognized and is under a new round of debate over the form and function of IEL. In contrast, UN-DOALAS and UN-Oceans have suggested more comprehensive sub-regionalization in response to shifting political alliances and new environmental challenges [1]. Such suggestions are based on the UNFSA and UNCLOS, representing a trend towards sub-regionalism in the governance of LMEs. UN-Oceans also reiterated the Rio Declaration to govern complex (marine) environmental problems [48]. Moreover, the interpretation of the law of the sea, including the CCRF and Compliance Agreement, complements the regional approach to the governance of LMEs.
A new agreement for the governance of areas beyond national jurisdiction (ABNJ) is in the final stages; potential clauses exist in the MEAs governing regional organizations for the protection of the marine environment and fisheries preservation with coherency [49]. The analysis catalyzes regional organizations’ frameworks in line with the international mechanisms governing oceans and fisheries. Regional organizations have evolved through the FAO system while recognizing that inadequate fisheries’ governance mechanisms exist [50]. These organizations face explicit challenges of negotiating with independence, finance, staff, and administration.
The jurisdictional limits of the RFMOs highly impact the marine environment and habitat. Such limitations are also contrary to the provisions of the UNCLOS and IEL. UNCLOS and IEL can be expected to considerably impact the RFMOS on jointly managing fisheries and the ocean. In doing so, FAO recognized that the organization needed strengthening and modernization in light of the development of international fisheries law [51]. Therefore, in the next section, thirty-four regional fisheries and forty ocean-governing MEAs have been reviewed and suggested at the end as to how a concrete mechanism of joint ocean and fisheries governance can be developed.
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