Elisabeth Mann Borgese, Ocean Regulation, UNCLOS, Ocean Governance
Elisabeth Mann Borgese is well known for her commitment to advancing the legal order for the improved regulation of the world’s oceans. Her advocacy with respect to the United Nations Convention on the Law of the Sea (UNCLOS) is the subject of other essays in this volume. However, in the decades since 1982, legal principles, sometimes linked to provisions in treaties, have become critical in the global quest for sustainable seas and healthy coastal communities. Principles, such as precautionary and ecosystem approaches, have influenced the negotiation, implementation, and interpretation of international agreements. They may also guide national ocean law and policy reforms, for example, encouraging adoption of integrated coastal and ocean management approaches and enhancement of public participation in ocean-related decision-making.
The continued importance of principles and the long list of what are considered to be key ocean governance principles can be seen in the 2016–2017 UN Preparatory Committee discussions trying to hammer out possible elements for a new international agreement for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. Wide convergence was reached on what key principles might be included in a future agreement. Among others, they are sustainable development; ecosystem approach; pre- caution; integrated approach; science-based approach, using the best available scientific information and knowledge, including traditional knowledge; adaptive management; polluter pays principle; public participation; transparency and availability of information; and good faith.
Getting a firm grip on ocean governance principles is difficult for at least five reasons. First, the term ‘principle’ is itself slippery with other terms sometimes used interchangeably such as concept, approach, and norm. An especially confusing terminological issue is whether the terms ecosystem approach and ecosystem-based management are synonymous, or whether they represent different paradigms. Second, the legal status of principles is often uncertain, whether they are legally binding or merely ‘soft law’. Third, the practical implications of principles are often contested, for example, as to the precautionary measures required by the precautionary principle. Fourth, the definitions of principles may vary, for example, some versions of the precautionary principle call for measures to be cost-effective while others do not. Fifth, the interrelationship of principles tends to be confusing, for example, the relationship between the preventive principle and the precautionary approach.
This essay provides an overview of how the international community has edged forward in developing ocean governance principles. Principles emanating from the UNCLOS and its progeny, such as the Rio Declaration on Environment and Development (Rio Declaration), are summarized and the importance of UN General Assembly (UNGA) resolutions and processes in promoting principled ocean governance is highlighted. This is followed by a brief consideration of the role of the Food and Agriculture Organization of the United Nations (FAO) in developing principled approaches to fisheries and aquaculture. The essay also reviews the contributions of key multilateral arrangements and agreements, such as the Convention on Biological Diversity (CBD), to the evolution of principles. The role of courts and tribunals in interpreting ocean-related principles is not addressed.
David L VanderZwaag, "Edging Towards Principled Ocean Governance: Law of the Sea and Beyond" in Paul R Boudreau et al, eds, The Future of Ocean Governance and Capacity Development: Essays in Honor of Elisabeth Mann Borgese (Leiden: Brill, 2019) 117.