The global legal framework for oceans governance.
Considerable research attention has focused on the transoceanic projection of power, the status of the ocean space beyond the lawful breadth of the territorial sea, the strategic importance of the international law of the sea to naval forces, and geographic trends in oceans law. The mainstay of the paper is formed by an analysis of the structure and functioning of marine ecosystems, the role of marine scientific research in the development of environmental law and policy, the rapid warming of the Arctic climate, and climate change's impacts on marine biodiversity. In the present paper, I focus on the need to reshape ocean governance, the sovereign rights of nations in the sea, ecosystem-based ocean governance in the Arctic Ocean, and sustainable management of marine regions. The paper generates insights about the progression of oceans law, the direction of the global trend in oceans politics and law, the contours of the international law of the sea, and the liberal order of the oceans. Scholarly research reveals strong correlations between the sphere of marine environmental protection laws, the role of the oceans in moderating and stabilizing the earth's climate, the nature of the maritime domain as an ecosystem, and the role of ecological sustainability in ocean policies.
2. The Sphere of Marine Environmental Protection Laws
Hubert analyzes the legal issues relating to the regulation of marine scientific research to protect the marine environment. Science demonstrates the gravity of the threat that human activities pose to the marine environment, and is capable of experimentally manipulating marine systems and processes. A limited understanding of the marine environment is a knowledge gap confronting science and society. States have enhanced their legal commitments to protect marine environment, and can restrict marine research activities that have the potential to damage the marine environment. Hubert puts it that marine scientific research constitutes a legitimate use of the oceans. Scientific research is necessary for the rational exploitation of marine resources. State-of-the-art scientific knowledge should precede and form the basis of environmental law and policy. "An important pillar of the legal regime on marine scientific research is the overarching right of all states to conduct marine scientific research and the correlative duty to promote the global study of the oceans." (1) Craig examines the existing and climate change threats to marine biodiversity: climate change may significantly affect marine biodiversity in a number of ways, (2) impacting marine biodiversity, both through its own effects on marine ecosystems and through synergistic interactions with existing stressors. Marine ecosystems are changing, sea-level rise causes multiple impacts on coastal ecosystems, whereas, in most coastal nations, regulation of marine resources is highly fragmented. Craig states that the first worldwide Census of Marine Life (2010) represented a significant improvement in our understanding of marine biodiversity (human uses of the ocean have increased to include a wide variety of exploitative and often polluting activities): there are many human-caused threats to marine biodiversity, coastal degradation can devastate near-shore marine biodiversity, ocean currents are important to marine biodiversity, and marine biodiversity is important to ocean governance (changes in marine biodiversity can provide one outcome measurement of how well a governance regime is working). "As the world copes with the climate change era, improved marine governance will be of ever-increasing importance if we are to maintain anything approaching broad and resilient marine biodiversity in the face of pervasive ecological, chemical, and physical changes to the ocean's environments." (3)
3. The Importance of Maritime Power and the Law of the Sea
Norchi holds that environmental law is a key dimension of maritime port law: the maritime port is an organizing device for an interrelated set of legal problems (4) that transcend public and private law, maritime states try to apply mechanisms requiring extensive cooperation to achieve global marine and port security policy goals, and a seaport can be a weak security link for a state, and the life-line of a nation's people.
In our age of heightened security and enhanced port actor conflict, unilateral and multilateral control systems for port security and safety are widely and intensely applied. Every port on the planet shares a policy goal of eliminating substandard shipping to protect the population, infrastructure, and environment of coastal states. [...] Port capacity requires that individuals possess the skills to manage the complex affairs of a modern port from international trade to maritime security, and is the fundamental maritime port law challenge for developing countries. (5)
Koivurova et al. examine the roles of the European Union (EU) and Canada in governance and regulation of human activities in the Arctic Ocean: the international law of the sea applies to the marine environment of the entire globe, including the entire marine environment of the Arctic Ocean, neither the EU nor its Member States can act as coastal states with respect to the Arctic Ocean, and the EU and its Member States are able to exercise their rights and discharge their obligations with respect to the Arctic Ocean. "The Arctic is covered by a variety of governance and regulatory regimes relating to the protection and preservation of the marine environment and the conservation and sustainable use of marine biodiversity." (6) Franckx notes that ocean policies are primarily state-centric. "In order to overcome the inherent deficiencies accumulated over the years by applying the zonal approach to ocean matters, each country finds itself today in a totally different position and consequently tries to find the most appropriate way to bring coherence and sustainability in the way it manages its own ocean's affairs." (7)
Osherenko examines the basis in international and domestic law for allocating rights in the oceans: international law determines the extent of coastal state jurisdiction but does not grant ownership over ocean space or resources, contract law is the appropriate discourse through which to deal with allocation of ocean space, whereas governments are restructuring the rights and rules that govern ocean space. New ocean discourses lead to new systems of ocean governance to deal with new uses and conflicts arising over ocean space, the oceans and their resources are common property, and the ocean ecosystems must be protected so that they may continue to produce ecosystem services. Production and consumption sites are expanding from land to sea.
The preceding analysis suggests that nations have expanded their claims to the right to manage and control the use of the seas, and have avoided overt claims of state ownership or property rights to the seas. Osherenko contends that the Convention on the Continental Shelf does not consider the continental shelf to be the territory of the coastal state. "The Law of the Sea Convention and customary international law may have reduced the common owners from a global community to citizens of particular states, but they did not change the fundamental nature of ownership from common property to public property." (8)
4. Developing New Regimes for Ocean Governance
Kraska points out that naval powers and national economies most dependent on global trade (9) could become less willing to engage in additional multilateral maritime law negotiations (naval power has been particularly associated with the rapid rise of new major powers): the breadth of the territorial sea and the regime of transit through international straits are inextricably connected, the new regimes in the Law of the Sea provide the legal model of the oceans, the oceans should be treated differently from land territory, and current maritime boundaries are more commonly linked with the concept of global security than in the past. Naval forces are compelled to operate closer to shore than in the past, leverage the spatial domain of the oceans, benefit from a number of organic advantages over land forces and land-based air units, can be removed and reapplied in endless combinations, may be selected based on platform type and capability, and are imbued with the quality of freedom of action, mobility and maneuverability.
Based on the above reasoning, it is not difficult to show that the threats to the stability of the international law of the sea affect the utility of naval forces, transit passage is an important measure for ensuring global mobility of naval forces, whereas the same naval force can deter two different and geographically separate opponents. Kraska affirms that the history of international security (10) and freedom of the seas has formed the basis for the modern state system: (11) oceans policy should be connected to and serve grand strategy, a policy for the legal order of the oceans should be pursued that meets the major challenges of the day, world trade is dependent on freedom of the seas, and those nations seeking minimum world public order are natural allies in oceans law and policy. Strategic stability at sea is promoted by the freedom and mobility of warships, global freedom of navigation is the cornerstone of sea power, the concept of "freedom of the seas" includes freedom from attack and harassment at sea in peacetime or war, freedom of the seas is an important edifice of international law to promote an interconnected world, whereas the international community has an overriding interest in maintaining freedom of the seas. Kraska claims that the value of sea power in extended deterrence and collective security is high, there is a close relationship between sea power and the law of the sea, ships must comply with generally accepted international practices for ensuring the safety of life at sea, sea power places friendly forces out of reach of enemy threats, and the high seas have become less important for military operations.
The basic idea here is that maritime boundaries have attracted greater interest as tools for territorial control, nations and international organizations are becoming more creative in their definitions of maritime security, and the global maritime balance of power can shift suddenly. On Kraska's reading, some nations seek to throw the littoral areas into a state of legal and policy flux. Waters have the same legal character as the land itself. Vessels and aircraft exercising the right of transit passage through a strait are required to proceed without delay. Ships can continuously gather valuable information without threatening or alerting the target. International chokepoints force vessels or aircraft to concentrate in a confined area. International straits channel high-density traffic and increase vulnerability. Rawls's theory of justice has become the dominant trend in international oceans policy. Natural endowments are neither just nor unjust. Natural resources and ocean space are distributed unevenly throughout the earth. The "spirit of cooperation" in oceans lawmaking serves to weaken international law by rewarding outliers (nations are enclosing the oceans in a web of new regimes).
The oceans are a classic flow resource, and the use by one party does not diminish the value of the resource for follow-on users. Shared control avoids conflict at sea. Because the area of the oceans is shared among all nations, it requires a community framework that attracts universal or near-universal acceptance. The framework for an international law of the sea should have the authority or force of law and promote collective interest that drives state compliance. [...] The international law of the sea is pulled in so many different, even contradictory directions, by dissimilar domestic and international constituencies that it is becoming unmoored from its roots as a system for international peace and stability. As a global system, the law of the sea is becoming less coherent, not more. (12)
This study is grounded in the considerable body of scholarship examining the importance of freedom of navigation, the nature of littoral waters as the central feature of oceans law and policy, the international law of the sea, the intersection of the political and legal status of the littoral regions of the oceans, and the navigational rights and freedoms in the maritime zones of Arctic Ocean coastal states. This paper seeks to fill a gap in the current literature by ex amining different aspects of the development of environmental protection in the Arctic, the goal of safeguarding the marine ecosystems, divergences between national ocean policies of the countries, and the importance of the seas as unfettered transport-space. Although researchers have discovered some important findings regarding the relationship between the development of marine environmental protection laws and policy, the limited knowledge of ocean systems and processes, the impact that humans are having on marine ecosystems, and the sovereignty and power demands of coastal states, there is still a great deal that is unknown and that requires further empirical inquiry.
(1.) Hubert, Anna-Maria (2011), "The New Paradox in Marine Scientific Research: Regulating the Potential Environmental Impacts of Conducting Ocean Science," Ocean Development & International Law 42(4): 332.
(2.) Glover, Robert W. (2011), "The Theorist and the Practitioner: Linking the Securitization of Migration to Activist Counter-Narratives," Geopolitics, History, and International Relations 3(1): 77-102.
(3.) Craig, Robin Kundis (2012), "Marine Biodiversity, Climate Change, and Governance of the Oceans," Diversity 4, 225.
(4.) Costachie, Silviu, Ionica Soare, and Daniel Dieaconu (2010), "The Nature of State Transborder Reterritorialization in the Lower Danube Lands," Geopolitics, History, and International Relations 2(1): 152-157.
(5.) Norchi, Charles H. (2009), "The Public Order of Ports," Ocean and Coastal Law Journal 14(2): 159, 163.
(6.) Koivurova, Timo, Erik Molennar, and David VanderZwaag (2009), "Canada, the EU, and Arctic Ocean Governance: A Tangled and Shifting Seascape and Future Directions," Journal of Transnational Law & Policy 18(2): 249.
(7.) Franckx, Erik (2009), "Challenges to Ocean Policy Making," in T. Koivurova, A. Chircop, E. Franckx, E. J. Molenaar and D. L. VanderZwaag (eds.), Understanding and Strengthening European Union-Canada Relations in Law of the Sea and Ocean Governance). Rovaniemi: University of Lapland Printing Centre, 11.
(8.) Osherenko, Gail (2006), "New Discourses on Ocean Governance: Understanding Property Rights and the Public Trust," Journal of Environmental Law and Litigation 21: 331.
(9.) Floyd, Rita, and Stuart Croft (2011), "European Non-Traditional Security Theory: From Theory to Practice," Geopolitics, History, and International Relations 3(2): 152-179.
(10.) Bajrektarevic, Anis H. (2011), "No Asian Century without the Pan-Asian Institution," Geopolitics, History, and International Relations 3(2): 196-207.
(11.) Paun, Stefan (2011), "The Democratic Legitimacy of European Governance," Geopolitics, History, and International Relations 3(2): 229-234.
(12.) Kraska, James (2011), Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics. New York: Oxford University Press, 108, 168.
Spiru Haret University
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|Publication:||Geopolitics, History, and International Relations|
|Date:||Jan 1, 2012|
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