Introduction
On December 24, 1968, Apollo VIII astronaut William Anders captured one
of the twentieth centuries most influential images in history - the
‘Earth Rise’ (Sample 2018). The image emphasised the Earth’s physical
vulnerability against the backdrop of the infinite blackness of space
and for the first time depicted the Earth as the ‘blue planet’, with
oceans clearly dominating the image. This image was even more poignant
given that concern over exploitation of marine resources was being
raised in a number of forums. In parallel, significant environmental
incidents such as the grounding and wrecking of the oil tanker the SSTorrey Canyon off Cornwall in March 1967, raised awareness of how
vulnerable our oceans are to the anthropogenic impacts of mankind.
In the 1960s, offshore and deep-sea resource exploitation increased
attention to issues relating to access and sharing of oceans resources
and new emerging technological advances are enabling access to
previously inaccessible deep sea resources.. In November 1967, in
response to broadening concerns over perceptions of uncontrolled and
inequitable utilisation of the ocean, Arvid Pardo, the Ambassador for
Malta to the United Nations, urged the United Nations General Assembly
(UNGA) to address the management of the world’s seas and oceans (Pardo
1967). Pardo’s declaration that the seabed should be treated as ‘the
common heritage of mankind’, with the benefits of its use to be shared
amongst all states, provided the intellectual catalyst for a key
fairness concept which remains important to oceans governance today.
Fair access to the global ocean commons was central to Pardo’s concerns.
His pivotal intervention led to a UNGA resolution in 1970 that
established the United Nation’s Third Conference on the Law of the Sea,
an eight-year long series of meetings between 1974 and 1982 that in turn
led to the development of the 1982 United Nations Convention on the Law
of the Sea (UNCLOS). UNCLOS has provided what has been described as a
‘constitution for the oceans’ (Koh 1983). State sovereignty and
jurisdiction (i.e. legal control) were key concepts underpinning the
core question of which countries would control access to and use of the
world’s oceans. These concepts are not new; the freedom of seas and open
access were raised by the famous Dutch jurist Hugo Grotius in 1608, who
first published his international legal and philosophical arguments in
his famous book Mare Liberum (i.e. the free sea) and, in response
(in 1635) by the English lawyer John Selden, who argued for a state’s
right to claim areas of the ocean as sovereign territory (Feenstra
2009).
Since coming into force in 1994, UNCLOS has provided the overarching
international governance framework for human use of the oceans. UNCLOS
formalises a regime of macro-level marine spatial planning of the
world’s oceans based on coastal state sovereign rights over territorial
seas (i.e. 12 nautical miles) and resource extraction rights over
exclusive economic zones (EEZs- 200 nautical miles) and continental
shelves. Beyond these areas of the ocean under coastal state
jurisdiction, lie the ‘high seas’ areas, which cover approximately 45%
of the Earth’s surface. Following the Grotian ‘free seas’ tradition,
UNCLOS provides ‘high seas freedoms’ in these areas for navigation,
fishing, laying of cables and pipelines and overflight (Art 87). While
there are some more specific rules on deep seabed mining governed by the
International Seabed Authority (i.e. UNCLOS Part XI) and separate
International Maritime Organisation (IMO) rules applying to shipping,
these high seas freedoms are important source of economic activity for
many states, with fishing a prime example. The 1995 United Nations Fish
Stocks Agreement (UNFSA) was therefore formed a decade later to
implement management regime for high-seas fisheries. The UNFSA has
spawned a network of regional fisheries management organisations (RFMOs)
that manage fisheries resources on a regional scale across the globe.
There are several states which today have a dominant role in oceans use
and governance and are impacting on future conservation of the oceans.
The dominant ocean states largely mirror those with wider significant
political influence in the international system (i.e. United States,
China, Russia, European states, Japan, South Korea) and all have well
established industrial distant water fishing fleets. Not only is
governance of the World’s resources unbalanced and tipping towards a
small number of economically powerful states, there is also an unfair
distribution of ocean resources between developing and developed states.
In 2016, almost all (97%) of industrial fishing activity on the high
seas was undertaken by vessels flagged to higher income countries and
78% of this fishing effort was within the national waters of
lower-income countries (McCauley et al. 2018). Lower income
countries and small island developing states (SIDS) lack the resources
to compete with industrial fishing countries. Given these disparities,
states have different national interests in oceans governance and
advocate different conceptions of fairness in accessing and managing
marine based resources. A key challenge for governing ocean resources is
to better understand international relations relating to use of the
oceans. This includes the interests of states, incentives used to
maintain relationships, and an institutional and legal framework to
reach consensus and cooperation in order to achieve a fairdistribution and management of the World’s Oceans in a sustainable
manner for enjoyment of current and future generations.
The need to fairly manage multiple competing uses of the oceans
(particularly in nearshore environments and in enclosed seas where space
is limited) led to the emergence of the concept of Marine Spatial
Planning (MSP). MSP is a public process of analysing and allocating the
spatial and temporal distribution of human activities in marine areas to
achieve ecological, economic, and social objectives that are usually
specified through a political process (Ehler and Douvere 2009). MSP is
designed to integrate sector-based decision making and supports the
conservation and sustainable use of marine biodiversity (Vince and Day
2020). There are a wide variety of other area based management tools in
operation such as fisheries closures, catch limits, Particularly
Sensitive Sea Areas, Vulnerable Marine Ecosystems, Areas of Particular
Environmental Interest, and World Heritage Sites, all with various
objectives that are used to manage human activities in the marine
environment.11Particularly Sensitive Sea Areas have been
identified and are used by the IMO; Vulnerable Marine Ecosystems are
implemented by RFMOs; 9 Areas of Particular Environmental Interest
intended to protect biodiversity of the Clarion-Clipperton Zone by the
ISA; and World Heritage Sites established under the 1972 World
Heritage Convention. Marine Protect Areas (MPAs) are another
management tool that are used to conserve and sustainably manage marine
resources. This paper focuses on MPAs as a tool to govern marine
resources and provides a lens to showcase how international relations
influences the conservation and sustainable use of global marine
resources.
A global ambition to establish a global network work of MPAs was
initiated at the World Summit on Sustainable Development in
2002.22This goal was highlighted in paragraph 32(c) in the World
Summit on Sustainable Development (WSSD) Plan of Implementation.
Continued global concern over the state of the oceans has prompted
continued focus on this goal. The tenth meeting of the Conference of the
Parties to the UN Convention on Biological Diversity (CBD,
1992)33The Convention on Biological Diversity (CBD) was opened
for signature at the Earth Summit in Rio de Janeiro on 5 June 1992 and
entered into force on 29 December 1993. The Jakarta Mandate negotiated
and agreed in 1995 at the CBD COP 2 (Jakarta 6-17 November 1995)
clarified that the convention applied to marine and coastal
environments. calls upon nations to implement a 2011-2020 Strategic
Plan for Biodiversity. This plan set out five strategic goals with 20
Aichi Targets. Target 11 stipulates that by 2020, 10% of coastal and
marine areas are to be conserved through systems of protected areas and
other effective area-based conservation measures. The Aichi Targets have
been further strengthened by the United Nations 2030 Agenda for
Sustainable Development. This Agenda is a plan of action consisting of
17 Sustainable Development Goals (SDG) and 169 targets to be achieved by
2030 and was adopted by the UNGA in 2015 (Resolution 70/1). SDG 14.5
aims to ‘conserve at least 10% of coastal and marine areas’ by 2020.
Further work is progressing to better conserve the marine biological
diversity of areas beyond national jurisdiction (BBNJ) through a new
international legally binding instrument. In 2011, the BBNJ Working
Group gained agreement on progress that included discussions at the UNGA
and opportunities for an agreement to be developed under the UNCLOS. An
intergovernmental conference was established and discussion centred on
‘four thematic focus areas’ (Tiller et al. 2018: 1; IISD 2018): ‘marine
genetic resources (including benefit sharing), area-based management
tools (including MPAs), environmental impact assessments, and capacity
building and technology transfer’ (Tiller et al. 2018: 1). A draft
convention to conclude the process was completed in late 2019 and a
final session of the intergovernmental conference was due to be held in
March-April 2020, however this conference has been temporarily postponed
due to the COVID-19 outbreak (Box 2 ).
Over the last two decades, efforts to establish a global network of MPAs
in a bid to protect and sustainably manage the diminishing resources of
the world’s oceans have been an ongoing issue in international oceans
governance. This struggle has been fraught with differing interests and
agendas and dominated by a small number of powerful states. Under the
overarching concept of fairness, we use a case study to illustrate how
international relations in oceans governance influences the conservation
and sustainable use of global marine resources. The case study examines
efforts in oceans governance to develop a global network of MPAs (seeSection 4 ).
Aims and Methodology
This paper applies the methodology developed under the Future Seas
project (Pecl et al. 2020 this issue; Nash et al. 2020 this issue), by
identifying and contrasting Business-as-usual and More
Sustainable future scenarios. Having introduced our topic inSection 1 we discuss the concept of fairness (inSection 3 ), which frames our discussion of international
relations around ocean issues throughout the paper. MPAs provide a good
illustration of the international interests and agendas regarding
management of marine resources. For this reason, in Section 4we use the global goal to establish a global network of MPAs as a case
study to provide a lens for discussing international relations around
ocean issues. Using the methodology outlined in Nash et al. (2020, this
issue), we first identified a number of drivers influencing the
establishment of a global network of MPAs illustrated in Table
A in Appendix A . We then focused on six key drivers of change
(see Figure 2 ) that influence the establishment of a global
network of MPAs. We then explore two alternative futures through the
lens of fairness in international ocean governance and apply the
timeline of the UN Ocean Decade (2021-2030). We use aBusiness-as-usual future scenario (Section 5 ), based on
current trends and trajectories in society, economy and the biosphere
and contrast with a More Sustainable (Section 6 ) future
scenario using a normative approach. Both futures are based on existing
scientific knowledge, but the More Sustainable future explored a
more desirable (normative judgement in line with the UN Sustainable
Development Goals) but still feasibly possible future for 2030. We then
apply a backcasting approach (Nash et al. 2020 this issue; Robinson
1990) to identify how society might choose to move towards theMore Sustainable future rather than the Business-as-usualfuture and discuss the pathways to achieving a More Sustainablefuture in Section 7 and the implications for the future inSection 8 .
In addition to the methods described above, we engaged with the Future
Seas Indigenous and Traditional Working Group to ensure that key
messages relevant to First Nations Peoples regarding the fair use of
marine resource, particularly relating to establishing a global network
of MPAs were adequately captured and represented.
Fairness: What is it?
What is fairness? And among what entities (for example, regional bodies,
states, non-state actors, communities) might fairness be pursued?
Aristotle offers a principle of fairness in his Nichomachean Ethics that
is paraphrased as “treat equals equally and unequals unequally”(Baggini and Fosl 2007: 170). More recently Hooker (2005: 288) has
characterised fairness as “the consistent, unbiased application
of all and only morally relevant distinctions ”. But what entities are
equals and what entities are not equals? And what are the morally
relevant distinctions? These are significant philosophical questions and
they cannot be settled definitively here. However, some examples will
help us understand the scope of these questions. Consider the following
anthropocentric entities: federations of nation states, multinational
corporations, individual nation states, national corporations, social
and/or cultural groups of humans, individual humans, future humans. Also
consider the following non-anthropocentric entities: the biosphere,
bioregions, ecosystems, species, individual organisms. Some people
assert that all species are equal and that there is no morally relevant
distinction to be drawn between the human and the non-human world
(Leopold 1949; Naess 1973; and for recent reviews, see Callicott 2001;
Matthews 2001). Such extended ethical position would have profound
implications for what is the fair use of the ocean. For instance, the
ocean might be viewed as an entity in itself, with its own identity,
interests and rights.
Even so, there are significant philosophical questions remaining,
relating to what entities are equals and what entities are not equals,
and what are the morally relevant distinctions? Are all states
(including land locked nations) equals when it comes to use of the
ocean? Are all individual humans (including residents of land-locked
nations) equals when it comes to use of the ocean? Is it morally
relevant (and perhaps therefore a justification for unequal opportunity)
that a nation is land-locked? Or is it morally relevant (and perhaps
therefore a justification for unequal outcomes) that a nation has
historically invested in developing the ocean as a resource? Although
these questions cannot be answered conclusively here, this paper can
draw on examples from other contexts to help chart a path forward.
The emerging field of Environmental Justice recognises the fact that
“environmental practices and policies affect different groups of people
differently and environmental benefits and burdens are often distributed
in ways that seem unjust. Environmental justice refers to the conceptual
connections and causal relationships between environmental issues and
social justice.” (Figueroa and Mills 2001: 426-7). Figueroa and Mills
(2001: 427) refer to two key dimensions of environmental justice: The
first dimension, distributive justice , concerns outcomes ,
that is, what is the pattern of distribution of environmental benefits
and burdens amongst relevant actors and is this pattern defensible? This
is particularly stark in a situation in which the burdens of using the
ocean are distributed to one human population, while the benefits are
distributed to another human population. For example, consider a
(hypothetical) no-catch MPA that entirely circles and encompasses the
territorial sea and EEZ of a SIDS. The MPA provides a biologically
conducive habitat that is the nursery for fish that are then caught
off-shore in high seas areas by large fishing companies from developed
nations. Local fishers from the SIDS can no-longer carry on the
artisanal fishery of their traditional culture. The financial and
cultural burden of the existence of the MPA is borne by the SIDS but the
benefits are received by the higher and more efficient catch of distant
water fishing fleets. Of course, the burden (in formation and
implementation of the MPA, that provides nursery habitat) must be
located somewhere. But what are the reasons or principles behind the
decisions that lead to these burdens being distributed where they are in
fact distributed? The decision may have been made on sound environmental
grounds and to serve certain financial interests, but may have
distributive outcomes whereby those actors that bear the burdens
are different from those which receive the benefits.
In contrast, participatory justice concerns the process by
which decisions are made in the international system. There are many
factors that influence the fairness of decision-making processes in the
international system. Through representation, voice and influence; the
components of procedural justice maybe affected (Syme 2012). For
example, are all relevant states and stakeholders involved in the
decision-making process? Do states and stakeholders have an equal voice
in the process of decision-making? Is power of actors in the
decision-making process unequal? What decision-making rule is in place
(e.g. majority vote, consensus, unanimity)? Do all relevant states and
stakeholders have sufficient resources and capacity to participate in
the decision-making process? With particular reference to human
individuals and human communities that bear the burdens of fair ocean
use “crucial here is a principle of self-determination which grounds
the right of those most immediately affected to decide if such burdens
are acceptable to them” (Figueroa and Mills 2001: 428). A fair
decision-making process in the international system has the further
benefit that it may build legitimacy of the rules and improve the
prospects that states will comply (Frank 1990).
In the following section, this paper explores, particularly in the
Sustainable 2030 scenario (Section 6 ), the hypothesis that fair
use of the oceans (for all of humanity, both now and into the future)
will involve the creation of fair governance systems (if they do not yet
exist), fair decision-making within those fair governance systems, fair
outcomes, and fair and regular review of all of the above issues.
A useful theory to employ when considering this fairness hypothesis is
to apply Rawl’s ‘veil of ignorance’ (Rawls 1971: 136-141). Rawls’s
suggested that one method to assess the fairness, particularly the
outcomes, of a series of potential states of affairs, is to examine them
from a position of impartiality, by applying the ‘veil of ignorance.’ To
explain, imagine a series of possible worlds that all have different
ocean governance systems, decision-making processes within those
governance systems, outcomes of those governance systems and review of
all of these. For example, in the first possible world (W1) ocean
governance systems strongly advantage State X, strongly disadvantage
State Y, and leave State Z relatively unaffected. In the second possible
world (W2), ocean governance systems entail equal levels of advantage
and disadvantage for all states, X, Y, and Z. Finally in the third
possible world (W3) ocean governance systems strongly disadvantage State
X, and State Y and strongly advantage State Z (see Table 1 )