Statement delivered by H.E. The Hon. Robert Hill, Ambassador and Permanent Representative of Australia to the United Nations IUCN Workshop: High Seas Governance for the 21st Century on "The Challenge of High Seas Governance: Scientific, Economic and Legal Issues”
17 October 2007
(As delivered)
Ladies and Gentlemen
I am honoured to have been invited to deliver the opening address at this, the inaugural Workshop on High Seas Governance for the 21st Century. I would like to thank the organisers for their kind invitation, and for having exhibited great initiative and determination in bringing together such an esteemed and knowledgeable group of experts in high seas governance issues, from academia, government and civil society.
This workshop is a timely and very useful precursor to the second round of consultations on this year’s oceans omnibus resolution on oceans and the law of the sea, to be held here in New York in late November. As a Mission, we also have a keen eye towards next April’s second meeting of the UN General Assembly’s Ad Hoc Open-ended Informal Working Group on Marine Biodiversity in Areas Beyond National Jurisdiction, which Australia hopes to be able to continue to co-chair with Mexico. Should we be asked to do so, our first task will be to attempt to shorten the Working Group’s title. But more seriously, we recognise that the papers presented here, and the thought and discussions they generate, will help us to narrow our collective focus as we identify priority areas for action and consider appropriate mechanisms for pursuing them.
Until now, governance over human interactions with the marine environment beyond national jurisdiction has typically been characterised by a sectoral approach, focused on activities such as shipping, fishing, mining, and species-based conservation and management measures, including regulation to address concerns over the sustainability of target stocks and impacts on related species.
In general, a lack of coordination between these mechanisms is often cited as a hindrance to the overall effectiveness of high seas governance, while numerous studies have identified a number of gaps in the relevant legal frameworks. Examples include lack of environmental regulations for activities such as the laying of cables on the deep seabed and deep sea tourism, while existing regulations may have incomplete coverage or competence, such as the failure by some RFMOs to extend their mandates to discrete high seas stocks in a manner consistent with the Fish Stocks Agreement. For other activities, such as bioprospecting, there are debates over the legal status of the resources involved and the sufficiency of current regulatory approaches.
Stepping back for a moment, I see some parallels between our topic today and the wider debate we are having at the UN about international environmental governance – given the highly specialised and fragmented legal and institutional structures developed over the last few decades, would it be easier and more effective to pursue a new international organisation for the environment, or translated to the world of oceans governance, an implementing agreement under UNCLOS, no doubt requiring institutional support? Alternatively, can we find ways to make what we already have work better in terms of environmental outcomes on the ground, or for today’s subject, out in the water? In short, would it be better to adopt a ‘top-down’ or ‘bottom-up’ approach, or even a combination of the two?
These are difficult questions, but might be more accessible if broken down into the suggested triangle of issues – the scientific, the economic and the legal. And as an overarching theme to keep in the back of our minds, we should consider whether the increasing impacts on high seas biodiversity are: (i) the result of governance gaps; (ii) due to poor implementation of the frameworks, organisations and institutions we already have at our disposal, or (iii) a combination of both.
Scientific issues
From the scientific perspective, what do we know already about marine biodiversity in areas beyond national jurisdiction?
According to the World Conservation Union (IUCN), volumetrically, the high seas and deep oceans account for more than 90% of the biologically useable volume of the planet. While the ‘high seas’ entails a huge and relatively remote area – including some 60% of the world’s oceans – methods for mapping the sea floor and marine ecosystems have developed significantly over the past two decades.
For example, we can now use magnetic or gravity satellite imagery to identify seamounts, much work has been done on mapping global seascapes, and we can overlay global data sets to build a comprehensive picture of “what’s out there”.
A valuable technology that is a key tool for Australia’s ocean management is the Geographic Information System, or GIS. This tool offers a systematic and quantitative approach to identifying conservation priorities, primarily through analysis of seafloor geomorphic features as a proxy for likely biodiversity. The seafloor is of great interest to marine scientists, as it is home to some 98% of known marine animal species. And scientists are continuing to discover more species as areas subject to exploration expand. Indeed, scientists estimate that there may be between 500,000 and 5 million deep seabed species yet to be discovered.
Some types of seabed habitats are known to be incredibly biodiverse, especially features like seamounts and hydrothermal vents. Generally, these areas foster unique habitats, containing rare species and very high levels of endemism. These areas also foster organisms with extreme longevity. For example, cold water coral communities may be up to 8,000 years old. This means that recovery from damaging activities is exceedingly slow, leaving impacts for many hundreds of generations to come.
It is therefore critical that we identify those areas of high biodiversity value, and develop measures to protect them from such long-term or irreversible damage. A recent study estimates that there may be over 14 000 seamounts in the ocean, with just over half lying under the high seas.
And what of the actual and potential human impacts on these areas. With EEZ fishery resources close to maximum sustainable limits, or in decline, we are seeing fishing fleets target stocks much further from home and further out to sea - the FAO has noted a steep increase in deep sea fisheries since the mid-1990s. And with hydrocarbon and mineral prices at record highs, the search for offshore seabed resources will continue to expand as advances in technology allow us to look further, and deeper. Overfishing, destructive fishing practices, by-catch, offshore prospecting, shipping and land-based pollution, marine debris, undersea noise and ocean acidification – there is mounting scientific evidence that human pressures on the marine environment are unsustainable and, in the end, counter-productive. In short, we are impacting the health, stability and resilience of marine ecosystems and, as a result, their long-term productivity.
It makes sense when looking at improving environmental and conservation outcomes for the high seas that we should start with areas that are particularly biodiverse and especially vulnerable to human impacts. This approach was certainly recognised in last year’s General Assembly resolution language on destructive fishing practices, for which Australia and its Pacific neighbours were key proponents. And it is precisely in identifying these areas that science can assist policy makers to prioritise threats. The UN Global Marine “assessment of assessments” of the Regular Process for Global Reporting and Assessment of the state of the Marine Environment, including socio-economic aspects, will be useful in identifying priorities and areas of key concern, and we look forward to the completion of this important project.
Having said that, Australia is of the view that we already have enough data and information to begin the process of identifying sensitive high seas ecosystems and vulnerable areas suitable for appropriate conservation measures, and we fully support current work on bioregionalisation processes. Sound science needs to be the basis of our decision-making, and in the absence of adequate knowledge, we need to be guided by the precautionary and ecosystem approaches. Indeed, regional fisheries management authorities are already obliged under the UN Fish Stocks Agreement to apply these approaches. But, as always, the application of these approaches is often compromised by problems of implementation – a theme I foreshadowed earlier, and will return to later.
Economic Challenges
Certainly, perceived economic opportunity costs are often regarded as an impediment to the proper implementation of policies aimed at ensuring the conservation and sustainable use of high seas biodiversity. For some, less fishing now equates with less money or the loss of jobs, and conversely, many see only the increased costs associated with incorporating environmental safeguards into marine activities. This may be true, but only when viewed from a short–term perspective, addressing only the direct use value of marine resources without considering the indirect and potential long-term value of marine ecosystem services. Looking forward, we need to ask ourselves about the long-term consequences of failing to conserve and manage sustainably vulnerable and biodiverse ecosystems and other high seas resources more broadly.
Some interesting work has begun on looking at the potential economic impacts of establishing conservation areas. For example, in a paper submitted to this workshop, Sumaila and others argue that the economic burden of establishing marine reserves may in fact be quite small, with economic benefits likely to flow in the medium-to-long term. Nationally, Australia has set out to map fully offshore areas of biological significance to inform the establishment of a representative network of marine protected areas. Appropriately designed MPAs provide a variety of benefits – protection of threatened species and habitats, maintenance of genetic diversity, contributions to scientific knowledge and discoveries, including through scientific reference sites, and contributions to ecosystem-based fisheries, with the potential for improved productivity.
But despite some obvious progress in marine resource management in areas within national jurisdiction, illegal, unreported and unregulated (IUU) fishing is one of the major challenges for high seas biodiversity and governance, driven primarily by net economic benefits associated with strong markets for highly valuable straddling and migratory fish species. Of course, in some developing country situations, poor economic conditions help to create a platform for IUU fishing activities, including through the operation of open vessel registers. On the flip side, efforts to improve marine resource management need to cater and be mindful of disparate resources and capacities as between countries for regulating access to scarce marine resources beyond national jurisdiction – cooperative science, capacity-building and sharing best practices are all important in this regard.
I should also mention that market-based economics provides not only a range of challenges, but also a number of opportunities for addressing biodiversity conservation in areas beyond national jurisdiction. For example, Australia has taken a leading role - in the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and in developing the South Pacific RFMO - to design a number of innovative economic measures for addressing IUU fishing, including sanctions regimes and the closing of markets to IUU catch. It is important that these best practices are recognised, and where possible, replicated across other RFMOs.
Looking to economic avenues elsewhere, Australia has been working hard with others in the World Trade Organization towards the elimination of perverse fishing subsidies, and to further reduce the economic drivers of unsustainable fisheries. It has been suggested that the rising cost of fuel has been an important ‘conservation measure’, by compromising the financial viability of high seas fishing expeditions. At the same time, however, the FAO predicts that increasing transhipment and carrier vessels will be used to compensate, and this may in turn create further legal and compliance challenges.
Finding creative ways to realise economic opportunities and to address economic challenges adequately and appropriately is certainly - to use Tanya Rosen’s analogy - an important part of the puzzle.
Legal Challenges
The current high seas legal regime is highly complex and, according to some, fragmented and incomplete. We need to consider possible governance gaps, institutional failures, and problems in the implementation of global and regional conservation measures. I encourage participants to identify both short and long-term solutions to the problems, noting the importance of cross-sectoral management, to ensure that activities in one sector do not undermine conservation efforts in another.
For high seas fisheries, current governance arrangements rely heavily on regional fisheries management organizations (RFMOs) and arrangements, and flag state implementation. Policy-makers will need to focus on best practices within these RFMOs and arrangements, in order to improve not only fisheries management practices, but also broader efforts towards biodiversity conservation. The recent Chatham House report helps to identify a number of “Recommended Best Practices for RFMOs”, and these should be urgently considered by policy-makers as the next step forward in high seas governance. Australia also welcomes the success of recent consultations between the Tuna RFMOs, and urges those RFMOs to coordinate on the implementation of complementary and consistent measures. We also encourage the adoption of similar coordination mechanisms within other (non-tuna) regional organizations and arrangements.
As I noted earlier, Australia views IUU fishing is one of the greatest threats to the conservation, management and sustainable use of biodiversity on the high seas. It is important to break down the components of IUU fishing in order to identify the real but different policy challenges thrown up by each concept. For example, in order to address illegal fishing, solutions are likely to include compliance and enforcement measures. In contrast, unreported fishing might best be addressed by improvements in Monitoring, Control and Surveillance, whereas unregulated fishing derives from non-participation in relevant regional arrangements, necessitating legal and diplomatic efforts to work towards closing gaps in governance.
I encourage workshop participants to take this opportunity to explore modern and innovative mechanisms for addressing IUU fishing, including the use of advanced Catch Documentation Schemes (CDS), remote vessel monitoring and observer schemes, boarding and inspection regimes, and port state, market state and trade-based measures, supported by positive and negative vessel lists. As a reference point, CCAMLR is at the forefront in many of these areas, in particular its Catch Documentation Scheme, developed in a consensus-based framework and, as a result, enjoying particularly high levels of cooperation. All RFMOs should be encouraged to work towards best practices in each of these areas, using innovative thinking and constructive diplomacy.
I should also note that Australia has been at the forefront of efforts to enhance the protection of threatened marine species and to prevent harm to vulnerable marine ecosystems, or VMEs. We see the approach adopted on regulating and managing the impacts of high seas bottom fisheries in last year’s General Assembly resolution on Sustainable Fisheries as a positive step forward for high seas governance, particularly through its fleshing out of the prior assessments and controls necessary to prevent significant adverse impacts on VMEs. In line with the strict time lines established by the resolution, these results need to be harvested quickly and effectively, through both regional organisations and the responsible exercise of duties by high seas flag states.
We have also seen recent focus and debate at the UN on bioprospecting and the use of marine genetic resources during this summer’s meeting of the UN Law of the Sea Informal Consultative Process. In my personal view, there is scope for strengthening the regulation of these resources and related activities. A number of options have already been identified, including the harmonization and improved coordination of current arrangements, development of Codes of Conduct, or even the establishment of a new overarching legal arrangement – these options will no doubt be canvassed during next year’s resumption of the Ad Hoc-Working Group with the long name.
Over the next couple of days, this workshop could usefully consider how to better incorporate ecosystem approaches into resource management through current regimes, and how to ensure improved coordination between existing arrangements and any new mechanisms so that their work is complementary and mutually reinforcing. For example, we are now moving to implement a regulatory framework adopted by the UN General Assembly on destructive fishing practices and vulnerable marine ecosystems, and we are concurrently negotiating environmental protocols for deep-seabed mining under the auspices of the International Seabed Authority. We would not wish to see stringent measures adopted in one place undermined by poor controls in others, especially where similar ecosystems are affected. Whatever the outcome, a coherent approach is crucial.
The proposals for new legal arrangements include the development of an UNCLOS implementing agreement on marine biodiversity beyond areas of national jurisdiction, and the establishment of marine protected areas on the high seas. A new legal regime would have the benefit of overseeing and managing impacts across different sectors, however, we must not underestimate the difficulties involved in negotiating such agreements. There are complex and competing priorities and policy challenges that we must all weigh carefully before coming to hard and fast conclusions. For this reason, I encourage participants to explore a range of different short and long-term proposals aimed at addressing the key governance, institutional and implementation gaps.
Conclusion
Friends and colleagues, as legal experts and policy makers, we rely on science to identify current and future environmental threats and priorities, and thereby inform the pace and direction of our policy decisions. The recent prominence of IPCC studies on climate change is an excellent case in point. Following the emergence of a stronger scientific case on the issue, I have rarely seen such an accelerated effort at policy development, both nationally and globally, as that which we have witnessed this year.
Once we have prioritised the key threats and concerns, we need to look at the best way to address them – undoubtedly the issue at the core of this debate. As international policy makers for the high seas, our job is to learn from the past, elaborate our domestic and regional experiences, and to work together to create effective regimes that achieve the desired outcomes. In this context, that means striking a compromise between pursuing our rights on the high seas while honouring our commitments to the marine environment, or put more simply, finding a balance between sustainable use and conservation.
And coming back to the central theme I proposed earlier, we should give serious thought to possible tools for better implementing current frameworks, while also keeping an open mind to possible architectural changes in the medium-to-longer term. Included in this would be consideration of mechanisms for better leveraging the mandates and relative strengths of the various international instruments, groupings and regulatory bodies we currently have at our disposal.
As I said earlier, these are difficult issues, but I will leave the details to you, the experts.