A Myanmar patrol boat opened fire on Bangladeshi fishermen, killing one, because it feared it was under attack, Myanmar state media said on Wednesday (08/02), in a report on the latest violence on the countries' troubled border.(Reuters Photo/Tim Wimborne)

Commentary: What Are Feasible Scenarios for the New Blue Deal on High Seas Fisheries?


OCTOBER 15, 2016

Currently, negotiating a new treaty aimed at overhauling the antiquated high seas legal regime has been resumed by the United Nations. This event was deemed as an important step to develop a new United Nations Convention on the Law of the Sea, or Unclos, to implement an agreement for marine biodiversity in areas beyond national jurisdiction.

The second session of the negotiation, which followed up on the one that had taken place earlier this year, continued to examine the substantive issues pertaining to marine genetic resources (elements agreed to in UNGA Resolution 69/292). Those issues are questions regarding the sharing of benefits, area-based management tools and marine protected areas, environmental impact assessments, capacity building and the marine technology transfer.

There is also general consensus among delegates that the balance of rights and obligations contained in the Convention should be respected by the instrument and the work of the existing organisations should be built upon, improving it through more cooperation and a more integrated approach to all activities in the oceans. The United Nations Preparatory Committee for a new legally-binding instrument under the Unclos for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction closed its session.

The issue is that more than 40 percent of our planet — the high seas — lies outside any national jurisdiction. Pursuant to Article 89 of the 1982 United Nations Convention on the Law of the Sea, states are not entitled to exercise jurisdiction in a coastal State capacity with respect to the high seas, which is why the high seas are also referred to as an "area beyond national jurisdiction" (ABNJ) or "international commons."

It is widely acknowledged that fishing is currently the activity with the largest impact on biodiversity in ABNJ. In the legal regime of high seas fishery, Unclos emphasize cooperation between states. Such cooperation managed by Regional Fisheries Management Organization (RFMO), however depends on voluntary action of every fishing nation. On the other hand, while any RFMO’s members are entitled to access high seas fisheries, the Fish Stock Agreement did not provide certain legally binding sanctions toward either violation or destructive caused by fishing.

Consensus in the making

Though it is unclear how this can be achieved, currently, there is a growing consensus that a new agreement should include fisheries, since existing frameworks are inadequate in addressing fisheries problem at high seas. According to current conditions, there are different scenarios that might be possible, namely: closing the high seas to fishing, improving international cooperation to manage fishing, or even maintaining the present status quo.

Research conducted by the University of British Columbia suggests that closing the high seas to fishing could increase fish catches in coastal waters by 10 per cent. Effective management of high seas fisheries could benefit coastal waters in terms of productivity and help reduce climate change impacts on marine ecosystems, in such, that fact would help people, especially the most vulnerable ones, cope with the expected losses of fish due to climate change. Will it be feasible?

However, there will be one thing missed by such an approach, that when we are talking about earth we are talking about a whole ecosystem. There is interdependence among species. Whenever when the high seas being closed as to support the sustainability of certain species, at that time there will be impact on another species excluded high seas. Hence, it is necessary to take into account interactions between species to ensure the sustainability of fisheries, to ensure balanced exploitation of resources stocks and guarantee stable fishing opportunities and livelihoods for fishermen and their economic conditions in the long run as well. The multispecies management approach seems much more effective than managing a single species.

In the second scenario, improving international cooperation to manage fishing is mainstream. First thing that has to be done in regional or international bodies in managing such cooperation is establishing a better guidelines on member recruitment and quota allocations. Which states are entitled to require cooperation? Is it only states engaged in high seas fisheries, including coastal states, are entitled to require cooperation from high seas fishing states? Otherwise, is it possible for non-fishing states as well? No further guidance is provided as to how the justification of interference with high seas fishing should be assessed. Next issue arises that how the regional body should determine fishing quotas to create equitable sharing among members.

Finally, if international communities are more likely to maintaining the existing status quo, then we just have to wait the tragedy of the commons. As remarked by Karen Sack, “the Ocean has been something of a Cinderella story: quietly doing all the work to keep our planet functioning, and clean up our mess, while being neglected and abused by its beneficiaries, namely us.

Key elements to be considered

Capturing numerous issues in high seas resources, the key elements the new High Seas Agreement needs to be considered. First, the new agreement must establish clear common principles, targets and objectives. The resources in the high seas were deemed res communis, the property of all, and thus open to exploitation by all.

Since fish stocks were declining and certain species facing serious threats, a comprehensive regime for the conservation and management to ensure the long-term sustainable use must be implied as a primary objectives. This should be supported by second key element that is provide an overarching mandate for the conservation and management of high seas biodiversity. Even though Unclos stipulated that management in high seas is subject to international or regional bodies, in practical matter, measurement in high seas, whatsoever, is depend on effective cooperation among States and whether their actions in compliance with regulation or not.

Therefore, the third key element should deal with sanction mechanism and enforcement. Interaction between preliminary measures, for instance the designation and enforcement of Marine Protected Areas on the high seas and the ecosystem approach including prior environmental impact assessments before the exploitation of high seas resources, and, equally important, sanction enforcement over Illegal Unreported Unregulated (IUU) fishing in high seas collaborated with free rider phenomenon. Most of all, the future deal must secure an accord such that the benefits resulting from the exploration and exploitation of high seas genetic resources are accessible to and shared equitably among all nations.

Moreover, since fish stocks in high seas are managed by regional or international cooperation, agreements between countries are important, but local and national efforts are key, as some issues are best addressed by communities and their national governments, such as national regulation in handling IUU fishing, coastal-zone management and land-based pollution. Nevertheless, effective and sustainable management of ocean activities within our sovereign areas must be matched by management of high-seas areas.

Taking up the role of chair in the Indian Ocean Rim Association (IORA) for two years, Indonesia should gain as much benefit from its engagement. As President Jokowi elaborated his vision in placing Indonesia as the World Maritime Fulcrum, there are some main pillars of maritime policy that in line with IORA’s priorities, namely developing infrastructure and connectivity, maritime diplomacy, revitalizing maritime culture, managing marine resources and strengthening maritime security. By enhancing regionalism in the Indian Ocean region, Indonesia can strengthen its position both as coastal States whose breeding area of tuna stocks and as fishing States that should get access to marine resources in high seas.

The nature of high seas fisheries is a shared resource, once it lost, then this would be a loss to all. We need better scenarios for cooperation and the world is waiting for the new legally binding laws and treaties on high seas regime. This is not a North/South, rich country/poor country issue; the Ocean is a great unifier.

Rachma Indriyani is a lecturer in International Law Department at Faculty of Law of Sebelas Maret University (UNS) and a researcher in UNS' Institute for Environmental Studies. She can be reached at her email, rachma.indriey@gmail.com.