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Overview
This page is part of the multimedia Global Governance Monitor from the International Institutions and Global Governance program.
Scope of the Challenge
Oceans are the source of life on earth. They shape the climate, feed the world, and cleanse the air we breathe. They are vital to our economic well-being, ferrying roughly 80 percent of global commerce, housing submarine cables, and providing one-third of traditional hydrocarbon resources (as well as new forms of energy such as wave, wind, and tidal power). But earth's oceans are being threatened by a dizzying array of dangers, from piracy to climate change. To be good stewards of the oceans, nations around the world need to embrace more effective multilateral governance in the economic, security, and environmental realms.
The world's seas have always been farmed from top to bottom. New technologies, however, are making old practices unsustainable. When commercial trawlers scrape the sea floor, they bulldoze entire ecosystems. Commercial ships keep to the surface but produce carbon-based emissions. And recent developments in areas like offshore drilling are helping humans extract resources from unprecedented depths. As new transit routes develop in the melting Arctic, this once-forgotten pole is becoming a promising frontier for creative entrepreneurs.
But oceans are more than just sources of profit—they also serve as forums for transnational crime. Piracy, drug smuggling, and illegal immigration all take place in waters around the world. Even the most sophisticated ports struggle to screen cargo and crews without creating regulatory friction or choking legitimate commerce. In recent history, the United States has policed the global commons, but growing Indian and Chinese blue-water navies raise new questions about how an established security guarantor can accommodate rising naval powers.
And the oceans themselves are in danger of environmental catastrophe. They have become the world's garbage dump—if you travel to the heart of the Pacific Ocean, you'll find the North Pacific gyre, where particles of plastic outweigh plankton six to one. Eighty percent of the world's fish stocks are depleted or on the verge of disappearing, and when carbon dioxide is released into the atmosphere, much of it is absorbed by the world's oceans. The water, in response, warms and acidifies, destroying habitats like wetlands and coral reefs. Glacial melting in the polar regions raises global sea levels, which threatens not only marine ecosystems but also humans who live on or near a coast. Meanwhile, port-based megacities dump pollution in the ocean, exacerbating the effects of climate change.
These are just a few of the signs that the world's oceans are in trouble. And threats to the ocean are inherently transnational, touching the shores of every part of the world. So far, the most comprehensive attempt to govern the oceans produced the United Nations Convention on the Law of the Sea (UNCLOS). But U.S. refusal to join the convention has limited the convention's strength, leaving a vacuum in the maritime regime. Other states that have joined the treaty sometimes ignore its guidelines or fail to coordinate policies across sovereign jurisdictions. Even if it were perfectly implemented, UNCLOS is now nearly thirty years old and in need of updating.
Important initiatives—such as local fishery arrangements and the United Nations Environment Program (UNEP)'s Regional Seas Program—can be a disjointed patchwork without legally binding instruments to legitimize their work. As threats to the oceans become more dire, nations around the world need to rally to create and enforce an updated form of oceans governance.
Oceans Governance: Strengths and Weaknesses
Overall assessment: A fragmented system
In 1982, UNCLOS established the fundamental legal principles for ocean governance. This convention, arguably the largest and most complex treaty ever negotiated, entered into force in 1994. Enshrined as a widely accepted corpus of international common law, the convention defines the rights and responsibilities of states in their use and management of the world's oceans, and establishes guidelines for businesses that use marine natural resources. To date, 162 countries and the European Union have joined.
UNCLOS is a remarkable achievement, but the oceans governance regime it creates suffers several serious limitations. First, the world's leading naval power, the United States, has not joined it, which presents obvious challenges to the convention's effectiveness (and, as covered later, undermines U.S. sovereignty and national interests).
Second, UNCLOS, being nearly thirty years old, does not adequately address a number of emerging and increasingly important international issues, such as fishing on the high seas (which has become a classic case of the tragedy of the commons), wide-scale marine pollution, and transnational crime committed at sea.
Third, within both UNCLOS and subsequent multilateral measures, surveillance, capacity-building, and enforcement measures are weak. The UN supports the instruments created by UNCLOS, but it has no direct role in their implementation. Individual states are responsible for ensuring that UNCLOS's rules are enforced—which presents obvious challenges in effectively stateless parts of the world. The UN General Assembly (UNGA) plays a role in advancing the oceans agenda at the international level, but has no enforcement capability and its recommendations can be weak.
Organizations that operate in conjunction with UNCLOS—such as the International Maritime Organization (IMO) , the International Tribunal on the Law of the Sea (ITLOS), and the International Seabed Authority (ISA)—have an important function in protecting the oceans and strengthening oceans governance. The IMO has done an impressive job in helping reduce ship pollution to historically low levels, but can be slow to make new policy on issues such as invasive species, which are smuggled around the world in ballast water. ITLOS can only work if member states are willing to submit their differences to its judgment, and the ISA labors in relative obscurity, operating under intense pressure from massive commercial entities.
Fourth, coastal states struggle to create domestic policies that incorporate the many interconnected challenges our oceans face, from transnational drug smuggling to protecting ravaged fish stocks to establishing proper regulatory measures for offshore oil and gas drilling. UNCLOS presents the international community with a solid bedrock on which to build additional policy architecture, but requires coastal states to make comprehensive oceans strategy a priority—a goal that has so far remained elusive.
Fifth, the system is horizontally fragmented, failing to harmonize domestic, regional, and international policy. Domestically, local, state, and federal maritime actors rarely coordinate. Among the handful of countries and organizations that have developed comprehensive ocean policies—which include Australia, Canada, New Zealand, Japan, and the European Union—few have synchronized their activities with other countries. Attempts are being made to strengthen harmonization and coordination efforts. The UNEP's Regional Seas Program works to promote cooperation for marine and coastal management with varying degrees of success and formal codification. Likewise, the European Union recently created a region-wide Integrated Maritime Policy (IMP) that addresses a range of environmental, social, and economic issues. The IMP also works with neighboring partners to create regional, integrated oceans policy in places such as the Arctic, the Baltic, and the Mediterranean.
However, much work remains in coordinating national actions within and across regions. The United Nations Conference on Sustainable Development (UNCSD), also known as Rio+20, is anticipated to be among the most important international environmental summits ever held. The conference will take place is Brazil in June 2012, with a goal of strengthening the institutional framework for the sustainable development of oceans and more effectively address modern maritime policies in regards to state sovereignty, international trade, and access to resources. Overall, however, global leadership on integrated oceans governance remains minimal.
Maintaining freedom of the seas: Guaranteed, thanks to U.S. power
The United States polices every ocean in the world. Its navy is unmatched in its ability to provide strategic stability on, under, and above the world's waters. With almost three hundred active ships and almost four thousand aircraft, its battle fleet tonnage is greater than the next thirteen largest navies combined. Put simply, U.S. naval power reigns supreme.
But the United States uses its navy more for peace than war. Just as Great Britain ensured a Pax Britannica in the nineteenth century, the United States presides over tranquil seas where global commerce is allowed to thrive. In 2007, the U.S. Navy released a report that called for "cooperative relationships with more international partners" to promote "greater collective security, stability, and trust."
The United States can pursue this strategy because it has faced no credible competitor since the end of the Cold War. And thus far, emerging powers have joined the U.S. armada in ensuring that the oceans remain open to commerce. But the rise of new powers with blue-water aspirations, such as India and China, raises questions about how U.S. naval hegemony will accommodate new fleets in the coming decades. Even tensions between these rising powers could prove problematic. When two Chinese ships docked in a Burmese port, for example, they triggered concern in India about China's ambitions in the Indian Ocean. The flare-up reflected broader strategic concerns as both regional powers try to leverage the geopolitical and economic resources of the Indian Ocean.
Combating illicit trafficking: Porous, needs greater capacity and coordination
In addition to being a highway for legal commerce, oceans facilitate the trafficking of drugs, weapons, and people, which often blend in with the flow of legal goods. Individual states are responsible for guarding their own coastlines, but often lack the will or capacity to do so. Developing countries, in particular, struggle to coordinate across jurisdictions and improve their interdiction capacity. But developed states are challenged by border security as well. Despite its commitment to interdiction, the United States seizes less than 20 percent of the drugs that enter the country by maritime transport.
The United Nations has tried to fight the trafficking of drugs, weapons, and humans at sea. Through the Container Control Program (PDF) , the UN Office of Drugs and Crime (UNODC) helps officials in five developing countries establish effective container controls to prevent maritime drug smuggling. The UNODC also oversees UN activity on human trafficking, guided by two protocols to the UN Convention on Transnational Organized Crime. Although UN activity provides important groundwork for preventing illicit maritime trafficking, it often lacks enforcement mechanisms and thus has a limited effect in curbing the flow of illegal cargo into international ports. Greater political will, state capacity, and multilateral coordination will all be required to stem the use of oceans for illicit trafficking.
Some international initiatives do have the potential to stem illegal trafficking. For instance, the International Ship and Port Facility Security Code (ISPS) provides a uniform set of measures to enhance the security of ships and ports. The code helps member states control their ports and monitor both the people and cargo that travel through them. In addition, the U.S.-led Proliferation Security Initiative (PSI) facilitates international cooperation to interdict ships on the high seas that may be carrying illicit weapons of mass destruction, ballistic missiles, and related technology.
One way to combat illicit trafficking is through regional arrangements, such as the Paris Memorandum of Understanding on Port State Control (Paris MOU). This agreement provides a model for an effective regional inspections regime, examining at least 25 percent of ships that enter members' ports for violations of conventions on maritime safety. Vessels that violate conventions can be detained and repeat offenders can be banned from the memorandum's area. Although the agreement does not permit searching for illegal cargo, it does show how a regional inspections regime could be effective at stemming illegal trafficking.
Confronting piracy: Resurgent scourge, collective response
Despite international efforts, piracy reached a new high in the first quarter of 2011 after four years of increased attacks against shipping. In the first three months of 2011, there were 142 attacks worldwide. An increase in piracy off the coast of Somalia drove the rise in piracy attacks, with ninety-seven attacks recorded in the first quarter of 2011, up from thirty-five in the same period in 2010. Moreover, eighteen vessels were hijacked, 344 crew members were taken hostage, and six were kidnapped during the first quarter of 2011. In addition to the human toll, pervasive piracy can have significant economic ramifications. International coordination and cooperation is essential to preventing and prosecuting piracy.
Recognizing this imperative, countries all over the world have shown unprecedented cooperation to combat piracy , particularly near the Gulf of Aden. In August 2009, the North Atlantic Treaty Organization (NATO) commenced Operation Ocean Shield in the horn of Africa, where piracy increased close to 500 percent from 2007 to 2009. This effort built on Operation Allied Protector and consisted of two standing maritime groups with contributions from allied nations. Although the focus continued to be protecting ships passing through the Gulf of Aden, the effort also placed a new emphasis on helping countries, specifically Somalia, prevent piracy and secure their ports. Meanwhile, the United States helped establish Combined Task Force 151 to coordinate the various maritime patrols in East Africa. Other countries around the world, including Russia, India, China, Saudi Arabia, Malaysia, and South Korea, have sent naval vessels to the region.
Outside East Africa, the number of pirate attacks has dropped in the wake of several successful regional initiatives, especially in Asia. The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia is the first of these and has been largely successful in facilitating information-sharing, cooperation between governments, and interdiction efforts (though spikes in piracy do still occur).
Like individual countries, international institutions have condemned piracy and legitimized the use of force against pirates. In June 2008, the UN Security Council unanimously passed Resolution 1816 (PDF), encouraging greater cooperation in deterring piracy and asking countries to provide assistance to Somalia to help ensure coastal security. This was followed by UN Security Council Resolution (UNSCR) 1846 (PDF), which allowed states to use "all necessary means" to fight piracy off the coast of Somalia. In UNSCR 1851 (PDF), the UN Security Council legitimized the use of force on land as well as at sea to the same end. Outside the UN, initiatives such as the International Maritime Bureau (IMB), which collects information on pirate attacks and provides reports on the safety of shipping routes, have proven successful in disseminating information and facilitating antipiracy cooperation.
Such cooperative efforts face several legal challenges. The first is that the United States has not ratified UNCLOS, which governs crimes, including piracy, in international waters. Even when UNCLOS would provide an adequate legal foundation, it has often proven ineffective because it relies on the political will of individual countries to prosecute.
Efforts to bring pirates to justice have increased as well. The United States held its first piracy trial since the civil war in 2010, soon followed by Germany's first in over four hundred years. Other agreements have been established to try pirates in nearby countries like Kenya, such as the UNODC's Trust Fund to Support the Initiatives of States to Counter Piracy of the Coast of Somalia, established in January 2010. Under the mandate of the Contact Group on Piracy off the Coast of Somalia, the fund aims to defray the financial capital required from countries like Kenya, Seychelles, and Somalia to prosecute pirates, as well as to increase awareness within Somali society of the risk associated with piracy and criminal activity. UN Security Council Resolution 1918 praised the efforts in Kenya but further called on all states to criminalize piracy under their own national law, arrest pirates, and try them accordingly. Future efforts to combat piracy will need to continue to focus on underscoring regional cooperation and agreements, strengthening the international and domestic legal instruments necessary to prosecute pirates, and addressing the root causes of piracy.
Securing commercial shipping: Global supply chains at risk
Global shipping is incredibly lucrative, but it also presents an array of security and safety challenges. The world fleet consists of approximately 50,000 ships registered in more than 150 nations. With more than one million employees, this armada transports nearly eight billion tons of goods per year. But despite impressive innovations in the shipping industry, maritime accidents and attacks on ships still occur frequently, resulting in the loss of billions of dollars of cargo. Ensuring the safety and security of the global shipping fleet is essential for the stability of the world economy.
Internationally, the IMO provides security guidelines for ships through the Convention on the Safety of Life at Sea, which governs everything from construction to the number of fire extinguishers on board. The IMO also aims to prevent maritime accidents through international standards for navigation and navigation equipment, including satellite communications and locating devices. Although compliance with these conventions has been uneven, regional initiatives such as the Paris MOU have helped ensure the safety of international shipping.
In addition, numerous IMO conventions govern the safety of container shipping, including the International Convention on Safe Containers (CSC), which creates uniform regulations for shipping containers, and the International Convention on Load Lines, which determines the safe volume of containers a ship can hold. However, these conventions do not provide comprehensive security solutions for maritime containers, and illegal cargo could be slipped into shipping containers during transit. Since 1992, the IMO has tried to prevent attacks on commercial shipping through the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, which provides a legal framework for interdicting, detaining, and prosecuting terrorists, pirates, and other criminals on the high seas.
In reality, most enforcement action since the 9/11 attacks has focused on securing ports to prevent the use of a ship to attack, rather than to prevent attacks on the ships themselves. Reflecting this imperative, the IMO, with U.S. leadership, implemented the ISPS code in 2004. This code helped create international standards for ship security, requiring ships to have security plans and officers. However, as with port security, the code is not obligatory and no clear process to audit or certify ISPS compliance has been established. Overall, a comprehensive regime for overseeing the safety of international shipping has not been created.
The United States attempts to address this vulnerability through the Container Security Initiative (CSI), which aims to prescreen all containers destined for the United States, and to isolate those that pose a high-security risk before they are in transit. The initiative, which operates in fifty-eight foreign ports , covers more than 86 percent of container cargo en route to the United States. Several international partners and organizations, including the European Union, the Group of Eight (G8), and the World Customs Organization, have expressed an interest in modeling security measures for containerized cargo based on the CSI model.
Reducing marine pollution: Some progress evident
Pollution has degraded environments and ravaged biodiversity in every ocean. Much contamination stems from land-based pollutants, particularly along heavily developed coastal areas. The UNEP has sponsored several regional seas initiatives to control pollution, modeled after a relatively successful program that covered pollution in the Mediterranean. In 1995 states established the Global Program of Action for the Protection of the Marine Environment from Land-Based Activities, which identifies sources of land-based pollution and helps states establish priorities for action. It has been successful in raising the issue of land-based pollution and offering technical assistance to regional implementing bodies, which are so often starved for resources. More recently, over 190 UN members approved the Nagoya Protocol on biodiversity, which aims to halve the extinction rate by 2020 and extend protection to ten percent of the world's oceans.
Shipping vessels are also a major source of marine pollution. Shipping is the most environmentally friendly way to transport bulk cargoes, but regulating maritime pollution remains complicated because of its inherently transnational nature. Shipping is generally governed by the IMO, which regulates maritime pollution through the International Convention for the Prevention of Pollution from Ships (MARPOL). States are then responsible for enforcing MARPOL among their own fleets to curb the most pernicious forms of maritime pollution, including oil spills, particulate matter such as sulfur oxide (SOx) and nitrous oxide (NOx), and greenhouse-gas emissions, discussed below. Port cities bear the brunt of the air pollution, which devastates local air quality because most ships burn bunker fuel (the dirtiest form of crude oil). The IMO's Marine Environmental Protection Committee has also taken important steps to reduce SOx and NOx emissions by amending the MARPOL guidelines to reduce particulate matter from ships.
The IMO has been notably successful in reducing the amount of oil spilled into the marine environment. Despite a boom in global shipping, oil spills are at an all-time low. The IMO should strive to replicate this success in its efforts to reduce shipping emissions. The achievements of the IMO have been further strengthened by commitments by the G8 to cooperate on oil pollution through an action plan that specifically targets pollution prevention for tankers.
Responding to climate change: An ignored imperative
Climate change affects oceans in important ways. In June 2009, global oceans reached their highest recorded average temperature: 17 degrees Celsius. As the world warms, oceans are forced to absorb more carbon dioxide, which acidifies the water and destroys wetlands, mangroves, and coral reefs—ecosystems that support millions of species of plants and animals. Melting ice, in the meantime, raises sea levels, which can erode beaches, flood communities, and increase the salinity of freshwater bodies.
Individual states are responsible for responding to changes in their own marine climates, but multilateral efforts have been made to mitigate the effect of climate change on the oceans. The UNEP Regional Seas Program encourages countries that share common bodies of water to coordinate and implement sound environmental policies, and has promoted a regional approach that addresses climate change adaptation.
The UNEP has proposed harnessing the oceans in the fight against climate change by using carbon funding to maintain and rehabilitate blue carbon sinks such as mangroves, salt marshes, and sea grasses. Carbon funding achieved moderate success at the December 2010 United Nations Climate Change Conference in Cancún, México when delegates from 193 countries established the Green Climate Fund. The fund assists developing countries implement low-carbon development by allocating $100 billion in annual donations from the developed world. However, the Cancún meeting failed to draft any binding measures on emission cuts, and the implementation of the Green Climate Fund was delayed by infighting in March 2011.
Furthermore, broader international cooperation remains necessary. For one, incorporating shipping emissions into a post-Kyoto climate treaty is particularly difficult because of the international nature of the industry—should Panama or Liberia, the two largest shipping flags, be held accountable for the majority of shipping emissions? Identifying who in the complex logistic chain should incur the additional expense of cleaner operations remains unresolved. The IMO has had an impressive track record on reducing marine pollution, but a 2009 study (PDF) from the Organization for Economic Development and Cooperation 2007 found that international shipping still accounts for nearly 3 percent of all greenhouse gasses (not a huge number, but important enough to address). Due to the complications with regulating shipping emissions, the IMO asked (PDF) member states at the climate change conference in Cancun to allow the IMO to draft shipping regulations independently.
Part of the climate change problem lies in the fact that debates over mitigation policies have dominated the attention of policymakers at the expense of adaptation measures. Reducing greenhouse-gas emissions rightly deserves serious attention, but in the midst of these negotiations, the international community should also not lose sight of the need to develop maritime adaptation strategies in parallel. These include increasing our ability to track changes in the marine environment through better funding for the Global Ocean Observing System. They also include adaptation plans to protect disappearing coral reefs, coastal development plans that accommodate rising sea levels, and preparations for climate refugees. Countries such as Singapore and the Maldives have developed impressive adaptation strategies with considerable maritime components that should be replicated elsewhere.
Sustainable fisheries policies on the high seas: An ecological disaster
States have the legal right to regulate fishing in their exclusive economic zones (EEZs), which extend two hundred nautical miles from shore, and sometimes beyond that, in the case of extended continental shelves. But outside these boundaries lie what are called the high seas, which are free from any one country's jurisdiction. Freedom of the seas is critical to the free flow of global commerce, but spells disaster for international fisheries, yielding a textbook case of tragedy of the commons. For years, large-scale fishing vessels harvested fish as fast as they could, destroying 90 percent of the ocean's biomass in just one century. Fisheries therefore suffer from two sets of challenges: ineffective enforcement capacity and lack of market-based governance solutions to remedy the perverse incentives to catch as many fish as possible.
The first challenge occurs in fisheries for which regulation exists, but states lack the capacity or will to enforce them. UNCLOS provides the legal foundation for cooperation in the high seas. Articles 117 and 118 lay out the responsibilities of states that are parties to the convention and places the onus on countries to form policies and regional agreements that ensure conservation of fish stocks in their respective areas. UNCLOS was strengthened by the UN Fish Stocks Agreement (FSA), which called for a precautionary approach toward highly migratory and straddling fish stocks that move freely in and out of the high seas. When a review conference of the FSA convened in May 2010, seventy-seven countries had joined the treaty. Delegates touted the conference as a success, citing the passage of Port State Measures to combat illegal, unreported, and unregulated (IUU) fishing. Globally, fish stocks have continued to decline despite the higher number of FSA participants, and the Port State Measures have, as of yet, proven ineffective.
Implementing these measures within the high seas, however, is conducted through regional fishery bodies (RFBs). These bodies provide guidelines and advice on a variety of issues related to fishing, including total allowable catch, by-catch, vessel monitoring systems, areas or seasons closed for fishing, and recording and reporting fishery statistics. Only a portion of these bodies oversee the management of their recommendations, however, and some allow members to unilaterally dismiss decisions they dislike. Additionally, regional fishery bodies are not comprehensive in their membership and, for the most part, the rules of the body do not apply to vessels belonging to a state outside the body.
Some of the bodies with management oversight, such as the Commission for the Conservation of Antarctic Marine Living Resources and the South East Atlantic Fisheries Organization, have been relatively effective in dealing with overexploitation. They have developed management schemes and specific measures to target deep-water trawl fishing and illegal, unreported, and unregulated fishing in the high seas. Many regional cooperative arrangements, however, continue to suffer from weak regulatory authority.
Even if regional bodies make a binding decision in a high-seas case, implementing the decision depends on the capacity of states to pursue the recommended measures and policies. In 2003, the UN General Assembly established a fund to assist developing countries with their obligations to implement the Fish Stocks Agreement through RFBs. The overall value of the fund remains small, however, and countries continue to have too few resources to comply. This lack results in spotty enforcement, which in turn allows fleets to violate international standards with impunity and invites violations off the coasts of particularly weak states. Migratory species like blue fin tuna are most vulnerable to lax enforcement because they cross jurisdictional boundaries and have the highest commercial value.
The second challenge emerges in regions like the central and southwest Atlantic Ocean, which have no regulatory fishing bodies. Some have suggested filling the void with market-based solutions like catch shares, which in theory would change the incentives toward stewardship. Catch shares, also known as limited access privilege programs, reward innovation and help fisheries maximize efficiency by dedicating a stock of fish to an individual fisherman, community, fishery association, or—in international waters—an individual state. Each year before a fishing season begins, commercial fishermen thus know how much fish they are allowed to take. They are then allowed to buy and sell shares to maximize profit. By incorporating free-market principles, fisheries can then reach a natural equilibrium at a sustainable level. Allocating the shares at a domestic, much less international, level remains problematic, but the very idea reflects of the kind of policy work required to better manage the global commons and raise the value of global fisheries by up to $36 billion.
Managing the Arctic: Policy foundation at a crossroads
Arctic ice is melting at unprecedented rates . In September 2007, the Arctic shrunk to the smallest area recorded—more than one million square miles below the average minimum area. At this pace, the Arctic will be seasonally ice free as early as 2015 . As the ice recedes and exposes valuable new resources, multilateral coordination and observation will become even more important among states (and indigenous groups) jockeying for position in the region.
One such resource will be the Arctic's lucrative new sea routes. Since September 2009, cargo ships have been able to traverse the fabled Northwest and Northeast Passages, which are dramatically shorter than traditional routes around the capes or through the canals. Widening sea routes also means that fishing fleets can travel north in search of virgin fishing stock, and that cruise ships can carry tourists chasing a last glimpse of the disappearing ice.
The melting Arctic also exposes stores of natural resources, including oil and gas. No one is entirely sure how much hydrocarbon potential there is, but preliminary estimates are staggering. In a comprehensive appraisal, the U.S. Geographic Society said that the Arctic Circle may hold 22 percent of the world's undiscovered (but technically recoverable) hydrocarbon resources, including 90 billion barrels of oil and 1,670 trillion cubic feet of gas. Even aside from oil and gas, the Arctic may hold valuable commodities such as zinc, nickel, and coal.
But new competition in the Arctic can lead to new opportunities. In August 2007, Russia planted a flag on the Arctic floor, staking a claim to large chunks of Arctic land. Other nearby powers, including the United States, Canada, and Denmark, have each laid claim to the melting Arctic's resources. The European Union has crafted a new Arctic policy, and China has sent an icebreaker on three Arctic expeditions. Each country stands poised to grab new treasure in this increasingly important geostrategic region.
UNCLOS presents a solid foundation on which to coordinate Arctic national policies, especially Articles 76 and 234 governing the limits of the outer continental shelf (OCS) and authority for regulating activities in ice-covered waters. But there remain a formidable list of nagging sovereignty disputes that will require creative bilateral and multilateral resolutions. A legally binding treaty for arctic search and rescue missions neared completion in early 2011, while other issues like overlapping OCS claims, contested maritime boundaries, and the legal status of the Northwest Passage and the Northern Sea Route still need to be resolved.
U.S. Ocean Governance Issues
Introduction
The United States championed many of the most important international maritime organizations over the past fifty years. It helped shape the several-decade process of negotiating UNCLOS and has been a leader in many UNCLOS-related bodies, including the IMO. It has also been a driving force behind regional fisheries organizations and Coast Guard forums. Domestically, the United States has periodically been at the vanguard of ocean policy, such as the 1969 Stratton Commission report, subsequent conservation acts in the 1970s, the recent Joint Ocean Commission Initiative, and the U.S. marine preserves. The Woods Hole Oceanographic Institution and the Monterrey Bay Research Institute have long been world leaders in marine science. From a geopolitical perspective, the U.S. Navy provides security throughout the world's oceans, creating a peaceful environment where global commerce can thrive.
Yet the United States lags behind on some important issues, including becoming an official party to UNCLOS. Additionally, it has no coherent national oceans policy. To address this issue, U.S. President Barack Obama created an Ocean Policy Task Force in 2009 to address the lack of coordination on maritime issues across local, state, and federal levels, and to provide a strategic vision for how oceans should be managed in the United States. The task force presented its final recommendations in July 2010, leading to the creation of a National Ocean Council, responsible for "developing strategic action plans to achieve nine priority objectives that address some of the most pressing challenges facing the ocean, our coasts, and Great Lakes." This comprehensive internal oceans policy can help clear the way for the spadework of coordinating U.S. ocean governance and harmonizing international efforts.
Should the United States join the 1982 UN Convention on the Law of the Sea
Yes: UNCLOS, which created the governance framework that manages nearly three-quarters of the earth's surface, has been signed and ratified by 162 countries. But the United States remains among only a handful of countries—and one of even fewer with coastlines—to have signed but not yet acceded to the treaty. The convention and the 1994 implementation agreement have been in force for more than a decade, and the United States already treats most parts as customary international law. Leaders on both sides of the political aisle have said that reasons are compelling to join the treaty now so the United States can be better prepared to advance its national security, economic, and environmental interests.
No: Opponents argue that joining the treaty is not necessary because, with the world's most powerful navy, the United States can treat favorable parts of the convention as customary law and reject unfavorable parts as it sees fit. They hold that the convention is an unforgivable forfeiture of U.S. sovereignty to states that seek to constrain U.S. freedom of action. Specific provisions found to be objectionable include taxes on activities on outer continental shelves; judicial activism by the Law of the Sea Tribunal, especially with regard to land-based sources of pollution; and the perceived ability of UNCLOS to curtail U.S. intelligence-gathering activities.
Should the United States lead an international effort to coordinate national oceans policies?
Yes: Advocates say that U.S. engagement with the international community—part of the nine priority objectives of the National Ocean Council—would reinforce its role as chief architect of world order. The United States has a unique opportunity to integrate national ocean governance with the most developed policies of Canada, Japan, New Zealand, Australia, and the European Union. These ocean internationalists believe a senior administration official, and perhaps even President Obama himself, should coordinate this effort with other heads of state. This camp holds that effective national ocean governance can only be achieved when working closely with other international partners.
No: Opponents say that the United States should focus its energies instead on improving the state of its own waters. International efforts to coordinate national policies, they argue, would be fruitless because of either vast differences of opinion or vast disparities of capacity. Although conceding that ocean issues matter, this camp would prefer to see the United States husband its diplomatic activities to more urgent transnational projects, such as countering Iran's nuclear program.
Should the United States lead an initiative to expand the Container Security Initiative globally?
Yes: Some experts say the only way to secure a global economic system is to implement a global security solution. The U.S.-led CSI helps ensure that high-risk containers are identified and isolated before they reach their destination. More than fifty countries are already on board with the initiative, and many others have expressed interest in modeling their own security measures on the CSI. The World Customs Organization has called on its members to develop programs based on the CSI, and the European Union has agreed to expand the initiative across its territory. With its robust operational experience, the United States is well positioned to provide the technical expertise to ensure the integrity of the container system.
No: Opponents maintain that the United States can hardly commit its tax dollars abroad for a global security system when it has failed to secure its own imports. To date, more than $800 million and considerable diplomatic energy has been spent on CSI to expand the program to fifty-eight international ports, where agents are stationed to screen high-risk containers. Given the scale of world trade, the United States imports more than 10 million containers annually, and only a handful of high-risk boxes can be targeted for inspection. After huge expenditures and years of hard work to expand this program after September 11, 2001, only about 86 percent of the cargo that enters the United States transits through foreign ports covered under CSI, and of that, only about 1 percent is actually inspected (at a cost to the U.S. taxpayer of more than $1,000 per container). Despite congressional mandates to screen all incoming containers, critics say that costs make implementing this mandate virtually impossible. The limited resources the United States has available, they argue, should be invested in protecting imports bound specifically for its shores.
Should the United States be doing more to address the drastic decline in the world's fisheries?
Yes: Advocates say that the further demise of global fish stocks, beyond being a moral burden, undermines the national security interests of the United States. Depleting fish stocks are driven in large part by the prevalence of IUU fishing and the overcapitalization of the global commercial fishing fleet from domestic subsidies. To address these problems, advocates for a more active fishery policy call on the United States to take two steps. First, they say that to protect domestic commercial fisheries and the competitiveness of U.S. exports in the international seafood market, the United States should fully implement the IUU fishing provisions of the Magnuson-Stevens Act and enhance efforts by the National Oceanic and Atmospheric Administration to manage, enforce, and coordinate technical assistance for nations engaging in IUU fishing. Second, the United States should aggressively work to reduce fishing subsidies in areas such as Europe that promote overcapitalization and thus global depletion of fish stocks. The United States could also promote market-based mechanisms, like catch shares and limited access privilege programs, to help fishermen and their communities curb overfishing and raise the value of global fisheries by up to $36 billion. Finally, the groundbreaking U.S. policy of setting catch limits on all the fish —due to be instituted during the 2012 fishing season—could be an excellent model to promote globally.
No: Critics say that fisheries management is by and large a domestic issue, and that the United States has little right to tell other nations what to do. Furthermore, they argue, the science of overfishing is overhyped, as are the dire predictions about the consequences from expected fisheries collapse. Existing conventions, such as the 1995 Fish Stock Agreement and regional fisheries councils, already go far enough in addressing this issue. Any additional efforts, they contend, would be a diplomatic overreach, as well as an excessive burden on a struggling commercial fishing industry. Critics also question how market-based mechanisms, such as catch-shares, would be distributed, traded, and enforced, warning that they would lead to speculative bubbles.
Should the United States push for a more defined multilateral strategy to cope with the melting Arctic?
Yes: The opening Arctic can be viewed as an inherently international issue. For the United States, this new frontier north of Alaska could support a variety of economic activities, including energy exploration, marine commerce, and sustainable development of new fisheries. Advocates therefore maintain that concerted international engagement to ensure effective, integrated, and ecosystem-based management of human activities in the Arctic is essential. In the Arctic, joining UNCLOS would provide a solid legal bedrock on which to build elegant and effective governance structures for this geostrategically critical region. In this vein, the United States could pioneer the creation of a marine preserve at the North Pole and an Arctic Shipping Navigation Commission through the Northwest Passage modeled on the St. Lawrence Seaway. It could also empower an Arctic Council to take up security concerns. There might be an important leadership role for the United States in developing multilateral Arctic initiatives, similar to the one it played fifty years ago in spearheading the Antarctic Treaty.
No: Some say that the recently published National Security Presidential Directive and Homeland Security Presidential Directive updating U.S. Arctic policy is enough, and that the United States has more immediate strategic concerns outside the Arctic. Any collaboration with Canada on resolving the Northwest Passage dispute might undermine freedom of navigation for U.S. naval assets elsewhere, especially in the Strait of Hormuz and the Taiwan Straits, and this national security concern trumps any advantages from collaborating on security, economic, or environmental issues in the Arctic. Furthermore, opponents assert that the Arctic Council is fine as it is, and that strengthening it would run counter to U.S. interests by creating yet another multilateral body likely to constrain U.S. freedom. Last, given the dominant Russian and Canadian Arctic coastlines, future Arctic diplomacy might best be handled bilaterally rather than through broader multilateral initiatives.
Recent Developments
U.S. sets unprecedented fishing limits
The United States is set to become the first country in the world to replace fishing limits on all the fish it manages. The U.S. National Oceanic and Atmospheric Administration estimates the policy, instituted through the 2006 Reauthorization of the Magnuson-Stevens Act (PDF), will likely take effect by the start of the 2012 fishing season. Many environmentalists hailed the move as an excellent step towards a sustainable oceans policy. Some fish species, like the mahi mahi for example, will have catch limits placed on them for the first time in history. Joshua Reichert, director of the Pew Environment Group, claimed, "This simple but enormously powerful provision had eluded lawmakers for years and is probably the most important conservation statute ever enacted into America's fisheries law." Critics, however, contend that the new limits are based on flawed underestimates of fish populations and could potentially threaten the livelihood of local economies dependant on fishing.
Piracy on the rise
Incidences of piracy reached a record high in 2011, according to a report released by the International Maritime Bureau in October. When published, the report noted 352 incidents of piracy globally, during 2011. On the other hand, the report shows that the number of successful hijackings has decreased. Despite this phenomenon, four Americans taken hostage by pirates off the coast of Somalia were killed in February 2011.
The decrease in successful hijackings comes as the international community has increased efforts to prevent hijackings and punish those allegedly engaging in piracy. In January 2010, China joined counterpiracy efforts by the United States, European Union, and North Atlantic Treaty Organization in the Gulf of Aden. In November 2010, the United States launched its first piracy trial in more than a century to prosecute five Somali nationals in Norfolk, Virginia. Just two weeks later, Germany began prosecuting ten Somali nationals on similar, piracy-related charges. This was the first such trial in Germany in approximately 400 years. In January, the U.S. ambassador to the United Nations proposed special courts in Somaliland and Puntland be created to prosecute accused pirates.
Meeting of Pacific Islands Forum
At the 2011 Pacific Islands Forum held on Waiheke Island, New Zealand, UN Secretary General Ban Ki-moon and leaders of other Pacific island nations joined together in an urgent call for global action to address the issue of climate change. The top concerns of the forum were the reduction of greenhouse gas emissions by promoting and investing in sources of renewable energy as well as increasing awareness about the plight of small island developing nations. Many nations, such as the United States, New Zealand, and Australia have already contributed money to fund regional projects that aim to create new sources of renewable energy as well as improve education, health, and environmental protection.
U.S. deputy secretary of state Thomas Nides, head of the largest and highest level U.S. delegation to attend the forum, pledged improved cooperation with the Secretariat of the Pacific Community and the Secretariat of the Pacific Regional Environmental Program. Jimmie Rodgers, director general of the Secretariat of the Pacific Community called the level of U.S. engagement at the forum "historic."
Plummeting fish stocks
In July 2011, the European Commission on Maritime Affairs and Fisheries unveiled a major reform of the European Union Common Fisheries Policy (CFP). The European Union has had a common fisheries policy for twenty eight years, but recent research indicates that 75 percent of European fish stocks are overfished, with the number rising to 82 percent in the Mediterranean Sea. Europe's fish stocks have plummeted to approximately 10 percent of their post World War II levels.
The new proposal (PDF) seeks to bring fish stocks to a sustainable level by 2015 by implementing more specific guidelines and mechanisms for the realization of this goal. A key component of the proposed reform is to ban the practice of "discarding" in which unwanted fish are thrown back into the sea. Under new regulations, fishermen will be required to land all the fish they catch.
The ban has been met by strong opposition from the fishing industry, with fishermen claiming that they will lose money if forced to land lower-value fish for which there is little consumer demand. Some environmental groups have also criticized the ban for not going far enough in laying out specific measures to attain the goal of sustainability by 2015.
Escalating tension in the South China Sea
Tensions in the South China seas increased in May and June 2011, when the Vietnamese government claimed that Chinese vessels intentionally damaged cables used by Vietnamese seismic survey ships in Vietnamese waters, including within Vietnam's exclusive economic zone. China denied responsibility, insisting that the Vietnamese program interfered with China's jurisdictional rights under the UN Convention on the Law of the Sea (UNCLOS).
Although China has refused international arbitration of South China Sea disputes, at the July 2011 ASEAN Regional Forum, it drafted an agreement with Southeast Asian nations affirming its commitment to resolve differences in a peaceful manner. Yet tensions are on the rise again as the prospects of joint oil and gas exploration in the Sea by India and Vietnam have drawn sharp criticism from China.
On October 12, 2011, China and Vietnam signed a bilateral agreement to cooperate on settling the dispute, but a broad multilateral agreement that involves all countries with conflicting claims remains necessary.
Arctic Council strengthened
Meeting in Nuuk, Greenland in May 2011, representatives from the eight member states of the Arctic Council signed the group's first legally binding treaty. The agreement covers national search and rescue responsibilities in the region. Leaders also discussed the effects of global warming and took steps to develop a collaborative task force to respond to oil spills in the Arctic.
The meeting was also marked by the attendance of U.S. Secretary of State Hillary Clinton, the first time such a high-level U.S. representative had participated. Some have noted that, along with the creation of a permanent secretariat in Tromso, Norway, the Arctic Council is becoming an increasingly important regional body.
Intercepted shipping containers
In March 2011, Singapore and South Korea reported that they had intercepted shipments bound for Iran of materials used to construct nuclear weapons and manufacturing facilities. Four rounds of UN sanctions against Iran have prohibited such shipments to the gulf nation. The incident highlighted the difficulty of monitoring container shipping on the ocean, which comprises the vast majority of international trade. Approximately 14.5 million cargo boxes reach the U.S. shores each year, though only 1 percent of these boxes are scanned abroad. The United States attempts to address this vulnerability through the Container Security Initiative, which aims to prescreen all containers destined for the United States, and to isolate those that pose a high-security risk before they are in transit.
Options for Strengthening Global Ocean Governance
There are a series of measures, both formal and informal, that can be taken to strengthen U.S. and global ocean governance. First, the United States has to begin with finally acceding to UNCLOS. On this foundation, the United States should then begin to tap hitherto underused regimes, update twentieth-century agreements to reflect modern ocean challenges, and, in some cases, serve as the diplomatic lead in pioneering new institutions and regimes.
- U.S. ratification of UNCLOS
The United States should finally join UNCLOS, an action that would give it further credibility and make the United States a full partner in global ocean governance. This carefully negotiated agreement, as mentioned earlier, has been signed and ratified by 162 countries and the European Union. Yet despite playing a central role shaping UNCLOS's content, the United States has conspicuously failed to join. It remains among only a handful of countries with a coastline, including Syria, North Korea, and Iran, not to have done so.
Although remaining outside of UNCLOS might seem like a point of diplomatic inconsequence, emerging issues like the melting Arctic make joining increasingly urgent. By rejecting UNCLOS, the United States is freezing itself out of important international policymaking bodies, literally forfeiting a seat at decision-making tables. One very important forum where the United States has no say is the commission vested with the authority to validate countries' claims to extend their exclusive economic zones, a process that is arguably the last great partitioning of sovereign space on earth. As a nonparty to the treaty, the United States is forgoing an opportunity to extend its national jurisdiction over a vast ocean area on its Arctic, Atlantic, and Gulf coasts—equal to almost half the size of the Louisiana Purchase—and abdicating an opportunity to have a say in deliberations over other nations' claims elsewhere.
Furthermore, the convention allows for an expansion of U.S. sovereignty by extending U.S. sea borders, guaranteeing the freedom of ship and air traffic, and enhancing the legal tools available to combat piracy and illicit trafficking. Potential participants in U.S.-organized flotillas and coalitions rightly question why they should assist the United States in enforcing the rule of law when the United States refuses to recognize the convention that guides the actions of virtually every other nation. - National ocean policies for coastal states
Ideally, the creation of a comprehensive and integrated U.S. oceans policy should be immediately followed by similar efforts in developing maritime countries, including Brazil, China, India and Russia. These so-called BRIC nations will be important in creating ocean policies that form a coherent tapestry of global governance. Ideally, in the coming years, these BRIC nations would assign a senior government official, and in some cases the head of state, to liaison with other coastal states and regional bodies to coordinate ocean governance regimes. Consistent with the Regional Seas Program, the ripest opportunity for these efforts exists at the regional level, and through UN assistance, these regional efforts can be coordinated globally. - Moratorium on critically endangered commercial fisheries
Commercial fishing, a multi-billion dollar industry in the United States, is in grave danger. The oceans have been overfished, and it is feared that many fish stocks may not rebound. In the last fifty years, fish that were previously considered inexhaustible have been reduced to alarmingly low levels. Up to 90 percent of large predatory fish are now gone. Nearly half of fish stocks in the world have been fully exploited and roughly one-third have been overexploited.
The demise of the Atlantic blue fin tuna reflects especially poor management practices. The International Commission for the Conservation of Tuna is responsible for setting catch limits for this prized and highly migratory fish, and has recently taken action to further limit catch quotas. However, overfishing has led to a 72 percent decline in this fish stock in the last fifty years. In response, some countries, like Monaco, have suggested designating tuna for protection under the Convention on International Trade in Endangered Species, along with animals such as elephants and whales.
The Atlantic blue fin tuna is hardly alone in this predicament, and numerous other species are facing the same fate. Policymakers should stand up to intense political pressure and place fishing moratoriums on the most threatened fisheries to give them a chance to rebound. Doing so would be a courageous act that would help rescue collapsing fish while creating a commercially sustainable resource.
- Long-term proposals
In addition, a number of long-term efforts could enhance the effectiveness of the global ocean governance regime:
Strengthening and updating UNCLOS
UNCLOS and related agreements are and will continue to be the foundation for international ocean policy. Although a landmark treaty that, by and large, has functioned exceedingly well, UNCLOS is also nearly thirty years old. It needs to be strengthened and updated if it is to remain relevant and effective. Changes should include recognizing and protecting the cultural importance of unique areas through cultural heritage zones; employing market-based principles of catch shares to commercial fisheries, especially in the high seas; and increasing the number of marine protected areas throughout the world. Lastly, Article 234, the section of UNCLOS that applies to ice-covered areas, should be expanded to better manage increased access in the opening Arctic.
The international community should also counter the pressure of coastal states that unilaterally seek to push maritime borders seaward, as illustrated by China's claim to all of the South China Sea. Additionally, states should focus on using UNCLOS mechanisms to resolve nagging maritime conflicts, such as overlapping exclusive economic zones from extended continental shelf claims, and sovereignty disputes, such as that of the Spratly and Hans Islands.
Bolstering enforcement capacity
Many ocean-related governance issues have shortcomings not because rules for better management do not exist, but because weak states cannot enforce them. A failure in the oversight of sovereign waters inevitably leads to environmental degradation and, in cases like Somalia, can morph into problems with global implications, such as piracy. Accordingly, the international community should help less developed coastal states build the capacity to enforce (1) fisheries rules fleets; (2) International Convention for the Prevention of Pollution From Ships regulations to reduce ocean dumping and pollution; (3) other shipping regulations in states with open registries such as Liberia, Panama, Malta, and the Marshall Islands; (4) and existing mandates created to stop illicit trafficking. Developed countries should also help less developed areas monitor environmental variables such as acidification, coral reefs, and fisheries.
These recommendations reflect the views of Stewart M. Patrick, director of the program on international institutions and global governance, and Scott G. Borgerson, former visiting fellow for ocean governance.
