9 1 1 s e ri e S United Nations Intergovernmental Educational, Scientific and Oceanographic al Cultural Organization Commission c ni h c e T Transboundary Waters Assessment Programme (TWAP) Assessment of Governance Arrangements for the Ocean Volume 2 • Areas Beyond National Jurisdiction TWAP TRANSBOUNDARY WATERS ASSESSMENT PROGRAMME Intergovernmental Oceanographic Commission Technical Series 119 Transboundary Waters Assessment Programme (TWAP) Assessment of Governance Arrangements for the Ocean Volume 2 Areas Beyond National Jurisdiction Robin Mahon Lucia Fanning Kristina M. Gjerde Oran Young Michael Reid Selicia Douglas UNESCO 2015 Disclaimer The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariats of UNESCO and IOC concerning the legal status of any country or territory, or its authorities, or concerning the delimitation of the frontiers of any country or territory. The authors are responsible for the choice and the presentation of the facts contained in this publication and for the opinions expressed therein, which are not necessarily those of UNESCO and do not commit the Organization. For bibliographic purposes, this document should be cited as: Robin Mahon1, Lucia Fanning2, Kristina M. Gjerde3, Oran Young4, Michael Reid2, Selicia Douglas2. 2015. Transboundary Waters Assessment Programme (TWAP) Assessment of Governance Arrangements for the Ocean, Volume 2: Areas Beyond National Jurisdiction. UNESCO-IOC, Paris. IOC Technical Series, 119: 91 pp. 1 Centre for Resource Management and Environmental Studies (CERMES), University of the West Indies, Cave Hill Campus, St. Michael, Barbados 2 Marine Affairs Program, Dalhousie University, Halifax, Nova Scotia, Canada B3H 3R2 3 Senior High Seas Advisor, IUCN Global Marine and Polar Programme, 105 Irving St. Cambridge, MA, USA 4 Bren School of Environmental Science and Management, University of California, Santa Barbara, Santa Barbara, CA 93106-5131, USA. Additional information: This report is one of three supplementary reports produced by the IOC/UNESCO through the Transboundary Waters Assessment Programme (TWAP), which was supported by the Global Environment Facility. The other reports in this series are: Assessment of Governance Arrangements for the Ocean, Volume 1: Transboundary Large Marine Ecosystems. (IOC Technical Series 119 Vol 1); and Status and Trends in Primary Productivity and Chlorophyll from 1996 to 2014 in Large Marine Ecosystems and the Western Pacific Warm Pool, Based on Data from Satellite Ocean Colour Sensors (IOC Technical Series 120). Published in 2015 by United Nations Educational, Scientific and Cultural Organization 7, Place de Fontenoy, 75352 Paris 07 SP UNESCO 2015 ( (IOC/2015/TS/119 Vol.2) IOC Technical Series, 119 (II) page (i) Preface This report is an output of the Open Ocean Component of the Global Environment Facility (GEF) Transboundary Waters Assessment Programme (TWAP) (2013-2015). TWAP conducted indicator-based assessments for transboundary water systems in five categories: aquifers, rivers, lakes, Large Marine Ecosystems (LMEs) and Open Ocean. These included assessment of governance arrangements and overall architecture for transboundary systems. This report covers the arrangements for the Open Ocean with a focus on areas beyond national jurisdiction (ABNJ), while its companion (Volume 1) covers arrangement for LMEs. Each report is summarised as a chapter in the overall assessment report for the respective water category (Open Ocean and LME). The database of agreements that formed the basis of this report is available online as part of the GEOWOW/TWAP OneSharedOcean.org initiative (hosted by the UNESCO-IOC International Oceanographic Data and Information Exchange (IODE)). It will provide a focal access point for ocean scientists and policy makers to retrieve and share data. This will also include an interactive website where the agreements and regional clusters can be explored spatially. The authors thank Kimberley Baldwin for conducting the GIS analyses used in this report and Katherine Blackman for assistance with compiling data on governance agreements. We also wish to thank the reviewers Julian Rochette and Jakob Granit for their valuable comments. We are grateful to UNESCO-IOC for the opportunity to carry out this work. We take this opportunity to let readers know that this report covers primarily the extent to which arrangements are in place and appear to conform to widely accepted governance norms. It does not assess the performance or effectiveness of these arrangements. It also examines the extent to which the set of arrangements for ABNJ have an overall pattern that might be useful in understanding them, and how they relate to arrangements for areas within national jurisdiction (AWNJ). Assessment of the performance or effectiveness of these arrangements and how these relate to the presence of ‘good governance’ characteristics should be the next stage of this work. RM, LF IOC Technical Series, 119 (II) page (ii) Contents Preface .................................................................................................................................... (i) Summary ............................................................................................................................... (iv) 1 Introduction ..................................................................................................................... 1 1.1 The GEF IW TWAP and the Open Ocean Assessment ................................................ 2 1.2 Assessing governance arrangements - where governance architecture fits ................. 3 1.3 The scope of and approach to the ABNJ governance assessment .............................. 4 2 Developing and analysing a database of governance arrangements for ABNJ ......... 6 2.1 Developing the database of governance arrangements ............................................... 6 2.1.1 Levels of commitment to and types of arrangements ............................................ 10 2.1.2 Scoring criteria for the policy cycle stages ............................................................. 10 2.1.3 Principles ................................................................................................................. 10 2.2 Database analysis...................................................................................................... 11 2.3 Spatial analyses ......................................................................................................... 11 3 The characteristics of ABNJ governance arrangements ........................................... 11 3.1 Timeline of development of arrangements ................................................................. 13 3.2 Policy cycle stage scores and the completeness of arrangements ............................. 15 3.3 Principles ................................................................................................................... 20 3.4 Dispute resolution mechanisms ................................................................................. 20 3.5 Provisions for revision and amendment ..................................................................... 21 4 The global structure of ocean governance ................................................................. 21 4.1 Global-to-regional issue-based networks ................................................................... 22 4.1.1 The networks........................................................................................................... 22 4.1.2 Coordination/integration of the global-to-regional issue-based networks .............. 26 4.2 Regional clusters for EBM .......................................................................................... 27 4.2.1 Northeast Atlantic .................................................................................................... 28 4.2.2 Northwest Atlantic ................................................................................................... 30 4.2.3 Baltic Sea ................................................................................................................ 31 4.2.4 Mediterranean Sea ................................................................................................. 32 4.2.5 Black Sea ................................................................................................................ 34 4.2.6 Western Central Atlantic ......................................................................................... 35 4.2.7 Eastern Central and South Atlantic ........................................................................ 36 4.2.8 Northeast Pacific ..................................................................................................... 38 4.2.9 Northwest Pacific .................................................................................................... 40 4.2.10 Southeast Pacific .................................................................................................... 41 4.2.11 Pacific Islands Region ............................................................................................ 42 4.2.12 Southeast Asia ........................................................................................................ 44 IOC Technical Series, 119 (II) page (iii) 4.2.13 Eastern Indian Ocean ............................................................................................. 45 4.2.14 Western Indian Ocean ............................................................................................ 46 4.2.15 Arctic ....................................................................................................................... 48 4.2.16 Southern Ocean ...................................................................................................... 49 4.2.17 Characteristics and potential role of regional clusters ........................................... 51 4.3 Science-policy interfaces ........................................................................................... 53 4.3.1 Individual arrangements ......................................................................................... 54 4.3.2 Regional clusters .................................................................................................... 55 4.3.3 Global-to-regional issue-based networks ............................................................... 55 4.3.4 Overall observations on science-policy interfaces ................................................. 58 4.4 Linkages between ABNJ and regional architecture .................................................... 58 5 Discussion ..................................................................................................................... 59 5.1 Architecture and ‘good’ governance versus effectiveness .......................................... 59 5.2 The global architecture for ocean governance ........................................................... 60 5.3 Assessment of current status – gaps and overlaps .................................................... 61 5.4 Monitoring system ...................................................................................................... 63 6 Key conclusions and recommendations ..................................................................... 64 7 References .................................................................................................................... 65 Appendix 1 – List of arrangements included in the database .................................................. 71 Appendix 2 – Acronyms for other organisations and regional agreements .............................. 77 Appendix 3 – The distribution of principles in arrangements by issue and through time ............................................................................................................. 79 IOC Technical Series, 119 (II) page (iv) Summary The ocean area beyond national jurisdiction (ABNJ) covers about half of the surface of planet Earth, with those within national jurisdiction (AWNJ) covering a further 20 percent. ABNJ provide many important ecosystem services. These ecosystem services are increasingly under threat from a diversity of anthropogenic impacts arising from fisheries, land and marine-based sources of pollution, and climate change. Several recent high-level meetings and reports have concluded that poor governance is a root cause of unsustainability of ecosystem services from the global ocean. Current thinking about governance suggests that addressing this root cause will require much more than the conventional historical focus on regulatory processes and enforcement. It recognizes that governance is much broader than this and encompasses the private sector, civil society and resource users of all kinds. This has led to increased attention to the institutional arrangements and structures within which governance processes play out. The global governance arrangements for the ocean fall under the constitutive framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The preamble to UNCLOS acknowledges that ‘the problems of ocean space are closely interrelated and need to be considered as a whole’. This perception of the need to manage ocean issues in an integrated and coordinated manner runs throughout the Convention. However, despite the large array of global and regional conventions, treaties and other arrangements for governance of the major ocean issues, coordination and integration among issues such as biodiversity, fisheries, pollution and climate are often weak. As with other social-ecological systems, governance of the ocean involves much more than these global conventions. It includes governmental structures, markets, and civil society arrangements. Thus, in deciding where future interventions can help to mediate the relationship between human and natural systems and increase human well-being, both the existing global legal framework and linkages with other critical components and actors of the system will need to be fully appreciated by the Global Environment Facility (GEF) and other stakeholders. Given the interconnectedness of the world’s ocean, linkages to national and even local level governance processes will also play critical roles in the governance of ocean areas beyond national jurisdiction (ABNJ). This report examines the plethora (over 100) of international agreements comprising the global ocean governance architecture for the key issues, fisheries, pollution, biodiversity and climate change, in ABNJ. Indeed, these issues are critical for all ocean areas, so the report also considers the linkages of governance arrangements in ABNJ with those for areas within national jurisdiction (AWNJ). This study confirms that there is indeed considerable room for improvement in integration at the global and regional levels, and that there are significant gaps in coverage of issues, especially biodiversity. It provides indications of where interventions may be needed and proposes an overall structure to make ocean governance architecture more approachable. It is important to note that the assessment is intended to look only at governance arrangements and architecture. Due to limitations in time and resources, it does not examine governance effectiveness, important as assessment of effectiveness may be. Approach to the assessment The approach to the assessment was to assemble all governance agreements that were found to have relevance to the four issues of concern in the ABNJ: fisheries, biodiversity, pollution, and climate change. These agreements were compiled into a database to facilitate assessment of the extent to which the issues are covered either globally or regionally. An arrangement is any multilateral agreement, together with organizational structures and processes in place to give effect to it1. The assessment also examined each arrangement to determine whether policy processes considered to be adequate for good governance are in place. The arrangements are 1 In the governance literature the term ‘regime’ is also often used to refer to arrangements as defined here. IOC Technical Series, 119 (II) page (v) also examined from a spatial perspective to determine geographical overlaps and gaps as well as the extent to which ABNJ are covered by governance arrangements. The determination of direct relevance is based on whether the agreement is intended to address an ABNJ or straddling issue. On this basis, all relevant global agreements were included as well as many regional ones, such as regional fisheries conventions and Regional Seas Programme conventions that address ABNJ. With regard to fisheries, all agreements for Regional Fishery Management Organisations (RFMOs) and Regional Fisheries Bodies (RFBs) with responsibility extending into ABNJ or for highly migratory or straddling stocks were included. It should be noted that this includes a wide diversity of types of fisheries bodies with mandates ranging from purely advisory to those with the capacity to make binding decisions on fisheries management. With regard to pollution, all land-based sources of pollution (LBS) impacting ABNJ pass through coastal waters. Therefore, regional agreements addressing LBS were considered to be directly relevant to ABNJ. Most marine-based sources of pollution (MBS) may also be transported by currents from EEZs into ABNJ. This approach leads to a preponderance of pollution-oriented agreements which are primarily aimed at addressing coastal pollution problems. For biodiversity, the inclusion of agreements oriented towards national waters was considered. These are primarily protocols arising from Regional Seas conventions. It was thought that while the inclusion of pollution agreements under Regional Seas conventions was important for the reasons given above, the case for inclusion of biodiversity agreements was less clear. Most Regional Seas- based biodiversity agreements only relate to ABNJ when protected areas or other measures provide protection for straddling or highly migratory species (HMS) such as sea turtles, seabirds, and marine mammals. It was decided that including these agreements would provide a biased picture regarding biodiversity conservation in ABNJ. For each of the agreements included in the database, a variety of information was obtained. The primary sources for the information included in the database were the actual conventions and agreements, rules of procedure for the organisations and secretariats for the agreements, and organisational websites. When the desired information could not be found in these sources, other documentation and websites were explored. Typically, intergovernmental agreements fall into two categories: (1) constituting agreements2 and (2) implementing or operational agreements. Constituting agreements are aimed at setting the broad context and issues for cooperation, with the expectation that these will be further refined and made actionable by operating agreements. The operating agreements are aimed at giving specific effect to the broader objectives of constituting agreements. They often appear as protocols or annexes to constituting agreements. In this study, protocols are treated as separate agreements as they often have different membership and timeframes to their constituting agreements, whereas annexes are part of the constituting agreement. Findings Overall, 100 arrangements were considered to be relevant to ABNJ with regard to the four issues of concern (Table A). Of these, 18 are constituting agreements and 82 are operational. The majority of the arrangements address pollution (55) and fisheries (43), with far fewer for biodiversity (25) and climate change (8). Of the entire set of arrangements, 23 are global in scope, with the remainder being specific to individual oceans or marine regions. The number of regional agreements varies widely among ocean regions, from 25 in the North Atlantic and adjacent seas (Mediterranean, Caribbean, Baltic, Black) to 8 in the South Atlantic. The polar regions also have relatively few agreements, with six for the Southern Ocean and three for the Arctic Ocean. However, the assessment identifies the set of governance arrangements for the Southern Ocean to be among the most comprehensive for any region. Regional agreements are considered to be important means of translating global agreements to specific geographical areas, which is essential for an ecosystem approach. A closer look at the 2 Also sometimes referred to as framework agreements. IOC Technical Series, 119 (II) page (vi) coverage of issues by regional agreements reveals some of the gaps (Table A). For example, there are several regions with no agreement of any kind for biodiversity. Several of the biodiversity agreements are also species (polar bears) or taxon (seals, albatrosses and petrels, sea turtles) specific and do not provide broad coverage of habitats and communities. In the case of climate change, there are two global agreements, the UNFCCC and its Kyoto Protocol, and six combined issue regional agreements in which climate change is identified only as a factor that must be taken into consideration in dealing with the other issues. Assessment of policy cycles Scoring criteria were used to assign each arrangement a score for each of the stages of its policy cycle. The advisory and decision-making stages of the policy cycle are each considered in two modes -- policy mode and management mode -- making a total of seven stages to be assessed: (1) Provision of policy advice, (2), Policy decision-making, (3) Provision of management advice, (4) Management decision-making, (5) Management implementation, (6) Management review, and (7) Data and information management. Provision for carrying out each of these policy cycle stages is considered to be an important component of the institutional arrangements needed for good. The scores in each case ranged from 0 to 3 and are intended to reflect the institutional strength of the arrangement for transboundary governance at that particular policy cycle stage. An overall policy cycle score is derived from the scores of the individual stages and expressed as a percent completeness. It is important to note that a high completeness score means that the arrangements are specified on paper but does not mean that they are operating in practice. Table A. Numbers of arrangements by issues, types and regions (B = biodiversity, F = fisheries, P = pollution, C = climate change) Region Type of Issues covered Total arrangement F P B C FP FB PB PC BP FPB PBC FPBC Overall Constituting 0 10 1 1 1 2 0 0 0 2 1 0 18 Operational 27 34 5 1 0 6 2 1 1 0 0 5 82 Total 27 44 6 2 1 8 2 1 1 2 1 5 100 Global Constituting 0 2 1 1 2 0 0 1 7 Operational 3 8 1 1 1 1 1 0 16 Total 3 10 2 2 3 1 1 1 23 Atlantic Operational 1 1 2 North Constituting 0 3 0 0 0 0 0 3 Atlantic Operational 4 10 1 2 1 1 1 20 Total 4 13 1 2 1 1 1 23 South Constituting 0 1 0 1 Atlantic Operational 2 2 1 5 Total 2 3 1 6 North Constituting 0 1 0 1 Pacific Operational 4 0 1 5 Total 4 1 1 6 South Constituting 0 1 1 0 2 Pacific Operational 9 5 0 1 15 Total 9 6 1 1 17 Indian Constituting 0 3 0 3 Ocean Operational 2 8 1 11 Total 2 11 1 14 Arctic Operational 1 1 1 3 Ocean Southern Constituting 0 0 0 1 0 0 1 Ocean Operational 1 1 1 0 1 1 5 Total 1 1 1 1 1 1 6 IOC Technical Series, 119 (II) page (vii) The analysis of policy cycle stage scores shows differences in strength among the policy cycle stages, and between constituting and operational agreements. Both types of agreements score higher for the advisory stages, where the majority score 3, than for the decision-making stages, where the majority score 1. This is because while the majority of arrangements do have clearly identified mechanisms for both policy and management advice, the decisions made are predominantly recommendations which contracting parties may or may not choose to implement. As might be expected, the extent to which decisions made are binding is considerably higher for operational agreements than for constituting agreements. As regards implementation, the peak for operational agreements is 0, which means that it is entirely up to the member countries. It is only slightly higher for constitution agreements with a peak at 1 indicating that there is some secretariat support for implementation. Overall, the picture for most policy cycle stages, and for overall completeness, is that there is clearly considerable scope for strengthening most stages of the policy cycles for both types of agreement. The analysis of policy cycle scores by issue also shows some differences in strength among the issues. For both policy and management advice, the distribution of scores appears similar among issues, although advisory mechanism scores in fisheries and biodiversity arrangements were higher than for pollution. For decision-making, fisheries arrangements clearly scored highest, with decisions made for pollution being primarily in the form of recommendations for contracting parties. In contrast, fisheries arrangements scored lowest for implementation, which is predominantly at the level of contracting parties. Biodiversity and pollution arrangements (primarily within national waters) were considerably more likely to have regional level support. Overall structure of arrangements The analysis of the entire set of global and regional arrangements for ABNJ governance reveals an overall pattern that may provide a useful framework for identifying gaps and weak areas and for developing interventions to address them. The overall picture is one of two complementary sets of networks (Figure A). The first set is the ‘global-to-regional issue-based networks’. They are shown as vertical rectangles which reflect the major global arrangements for each of the four issues of fisheries, pollution, biodiversity and climate change. The second set is the crosscutting ‘regional intersectoral clusters/networks’. They are illustrated in Figure A by horizontal rectangles representing five hypothetical ‘regional intersectoral clusters/networks’ (Regions A-E). The solid circles indicate that representation of ‘global-to-regional issue-based networks’ is incomplete in the regional clusters, reflecting gaps to be filled.