20.1 Ocean Governance and the Rule of Law
Governance depends on cooperation to succeed, building on partnerships and interactions across multiple domains and actors.Footnote 1 It is not a clear-cut notion, and is often characterized by flexibility and dynamism in contrast to the static structures usually associated with law.Footnote 2 Ocean governance is now a field in its own right reflecting the ‘need and desire to pursue a holistic, integrated, and/or cross sectoral approach to the management of the oceans’.Footnote 3 It has been defined as ‘the way in which ocean affairs are governed, not only by governments, but also by local communities, industries and other “stakeholders”. It includes national and international law, public and private law as well as custom, tradition and culture and the institutions and processes created by them’.Footnote 4 It is clear that law is an essential element of ocean governance given that the system created by the United Nations Law of the Sea Convention (UNCLOS)Footnote 5 provides the overarching framework for management of the global ocean. Yet the precise relationship between the law of the sea and ocean governance remains contested, with the law of the sea naturally more concerned with legally binding norms.Footnote 6
The field of ocean governance itself has become increasingly complex with a diverse array of laws, actors and institutions involved. UNCLOS divided the ocean into arbitrary zones (e.g., areas beyond national jurisdiction (ABNJ) versus areas under national jurisdiction), which are regulated under different regimes and subject to different management standards. These are essentially geo-political divisions and do not correspond with ecological boundaries, which tend to group similar species and habitats together, often as controlled by climatic and oceanographic parameters.Footnote 7 This mismatch between the law of the sea and the ecological reality of the ocean has generated serious challenges from a rule of law perspective. It has been described as a ‘paradox with which lawyers have to grapple’Footnote 8 and a ‘serious deficiency’ in ocean governance.Footnote 9 Consequences include significant regulatory gapsFootnote 10 and negative outcomes for ocean health.Footnote 11 Therefore, the ‘rule of law’Footnote 12 as it currently applies to the oceans is clearly far from satisfactory.
Some scholars have argued that elements of good governance, such as cross sectoral cooperation and coordination and science-based decision-making, could be engaged to enhance the existing legal framework.Footnote 13 These ‘less politicized’ forms of governance are seen as offering a more holistic way to address the transboundary challenges particular to the marine environment.Footnote 14 It has also been asserted that regional cooperation and coordinated responses are key for managing the transboundary reality of many activities and processes in the marine environment.Footnote 15 This chapter will argue that regional cooperation has the potential to contribute to a more effective rule of law for the oceans by filling some of the gaps left by the ‘chronic fragmentation’Footnote 16 of international ocean governance, especially if embedded within an overarching regional and global strategy.
First, the emergence of regional ocean governance as a subfield within the broader sphere of ocean governance will be introduced, along with its main implementing mechanisms, followed by a case study on State-led regional cooperation efforts in the Eastern Tropical Pacific to create the first transboundary network of marine protected areas (MPAs) in Latin America. Finally, specific rule of law challenges faced by this initiative will be discussed, such as the lack of a legally binding cooperation agreement, limited sectoral participation, the vast scale and the lack of a cohesive regional ocean governance framework in the region.
20.2 A Regional Approach to Ocean Governance
The international community has recognized the need for a move towards a more integrated approach to ocean management through its endorsement of the ecosystem approach.Footnote 17 While implementation of the ecosystem approach in practice remains an ongoing challenge,Footnote 18 regional ocean governance (ROG) efforts have shown promise by enabling cooperation and coordination across territorial and sectoral boundaries, which could help to link disconnected areas of regulation arising from fragmentation.Footnote 19
The duty to cooperate regionally flows from the well-established general duty to cooperate in international law.Footnote 20 In the 1970s the notion that seas with multiple coastal States could be governed or managed regionally first appeared,Footnote 21 and by 1982, a legal obligation to cooperate on a regional basis for the protection and preservation of the marine environment was explicitly included in the text of UNCLOS.Footnote 22 The 1992 Convention on Biological Diversity (CBD) also promotes regional cooperation for the conservation and sustainable use of biological diversity.Footnote 23 The international community has continued to formally recognize the importance of regional levels of governance. For example, the 2030 Agenda for Sustainable Development underlines the importance of regional cooperation and coordination in order to achieve the Sustainable Development Goals (SDGs).Footnote 24 Enhanced ROG and a greater role for regional agreements has been proposed as a specific means of achieving the targets associated with SDG 14, which aims to ‘conserve and sustainably use the oceans, seas and marine resources’.Footnote 25 It has been recommended that regional seas should have a key implementing role in the Post-2020 Global Biodiversity Framework, given that they are in a ‘unique position to support States to achieve ocean-related elements’,Footnote 26 and it is also very likely that ROG will have increased prominence under a new international treaty for biodiversity beyond national jurisdiction (BBNJ), which is currently under negotiation.Footnote 27
From a global governance perspective, the main mechanisms for ROG at present include Regional Seas Programmes (RSP), Regional Fishery Bodies (RFB) and Large Marine Ecosystem (LME) mechanisms.Footnote 28 The RSP and RFBs are intergovernmental bodies made up of State parties, whereas LME mechanisms are usually projects that bring together coastal States of the LMEs, international agencies and regional bodies.Footnote 29 The United Nations Environment Program (UNEP) established the RSP in 1974 to serve as the mechanism for promoting cooperation among States sharing a common regional marine space.Footnote 30 For each RSP, an action plan serves as the basis for regional cooperation, and many also decide to adopt legally binding instruments and framework conventions.Footnote 31 The framework conventions typically provide general terms and conditions and an overall direction for States to follow. However, they are usually too vague to lead to decisive actions, and parties must therefore negotiate specific agreements, known as protocols.Footnote 32 The mandates of the different RSPs have evolved from an initial focus on pollution to encompass biodiversity conservation, particularly through the creation of MPAs.Footnote 33 Several RSPs have adopted a separate protocol for protection of marine biodiversity,Footnote 34 which require State parties, either individually or cooperatively, to establish protected areas for fragile and vulnerable ecosystems.Footnote 35
RFBs are regional mechanisms, established under UNCLOS, through which States cooperate on the sustainable use and conservation of marine living resources.Footnote 36 Considerable differences exist in the geographical mandates of RFBs, and they may cover both high seas areas and coastal maritime zones.Footnote 37 As with the RSP, the geographic scopes of the RFBs have been driven by a mix of scientific and political considerations and opportunism, rather than by a goal to demarcate ocean regions.Footnote 38 Regional Fishery Management Organizations (RFMOs) are a subset of RFB with a management mandate and the power to establish legally binding conservation and management measures, such as temporary closures.Footnote 39
These outlined approaches are complemented by other regional initiatives, such as those taken by political and economic organizations,Footnote 40 leaders and heads of State, non-governmental organizations, coastal communities and individuals.Footnote 41 A recent global study of ROG arrangements found that the majority of regional arrangements are ‘indigenous’, meaning developed by the countries of the region as opposed to being promoted by an external agency.Footnote 42 Given that most previous consideration of ROG has focused on the RSP and RFBs,Footnote 43 this discovery has important implications for ocean governance. The following sections of this chapter will focus on a case study of such an ‘indigenous’ regional cooperation agreement and its associated rule of law challenges.
20.3 Regional Cooperation in the Eastern Tropical Pacific Ocean
The decline of marine biological diversity worldwide, due to anthropogenic causes, has led to calls for more legally protected areas. International targets, which previously aimed for protection of 10 per cent of global waters by 2020, are due to be increased to 30 per cent by 2030 under the Post-2020 Global Biodiversity Framework.Footnote 44 Networks of MPAs,Footnote 45 including cross-jurisdictional boundaries, are now seen as increasingly necessary due to ecological connectivity between marine ecosystems.Footnote 46 Cross-jurisdictional coordination and regional cooperation are considered essential for their management.Footnote 47 The United States National Oceanic and Atmospheric Administration (NOAA) defines ecological networks of MPAs as ‘systems of core habitats connected by ecological corridors that are established, restored, and/or maintained to conserve biological diversity in systems that have been fragmented’.Footnote 48 Ecological corridors are therefore important tools in the creation of an effective network of MPAs. Regional organizations, such as the European Union, now require integration of ecological corridors into MPA networks.Footnote 49
The Eastern Tropical Pacific Marine Corridor (CMAR)Footnote 50 is regarded as a leading example of regional cooperation for the creation of a network of MPAs.Footnote 51 It is located within the Eastern Tropical Pacific Ocean (ETPO), which has exceptional levels of biodiversity, unique oceanographic conditions and large numbers of endemic, native and migratory species.Footnote 52 The proposed marine corridor encompasses the national waters, coasts and islands of Ecuador, Colombia, Costa Rica and Panama and contains five world-renowned MPAs: Galapagos (Ecuador), Cocos (Costa Rica), Coiba (Panama), Malpelo and Gorgona (Colombia) (Figure 20.1).
Figure 20.1. Proposed Eastern Tropical Pacific Marine Corridor (CMAR).
All of the MPAs, except for Gorgona, are UNESCO World Heritage Sites,Footnote 53 two are Ramsar Sites (Galapagos and Cocos)Footnote 54 and the International Maritime Organization (IMO) has designated Galapagos and Malpelo as Particularly Sensitive Sea Areas (PSSAs).Footnote 55 In further recognition of its biological value, CMAR was recognized in 2016 as an Ecologically and Biologically Significant Area (EBSA) by parties to the CBD, who considered it ‘important for the connectivity of species on their migratory routes and at other times of their life cycles (e.g., mating, birth, feeding)’.Footnote 56 Despite its immense ecological value, the region faces a number of governance challenges, including illegal, unreported and unregulated (IUU) fishing, overfishing, pollution and coastal development.Footnote 57 Climate changeFootnote 58 and weak governanceFootnote 59 are overarching, aggravating factors.
In response to these pressures, CMAR was formally established in 2004 by the San Jose Declaration (SJD),Footnote 60 a non-binding regional cooperation agreement signed by Ecuador, Costa Rica, Panama and Colombia. The Action Plan for 2019–2024 defines CMAR as ‘a regional initiative for conservation and sustainable use which seeks, via an ecosystem approach, the adequate management of the biodiversity, marine and coastal resources of the Eastern Tropical Pacific, through regional governmental strategies, jointly supported by civil society, nongovernmental organizations and international cooperation, with the MPAs of Cocos, Galapagos, Malpelo, Gorgona and Coiba considered core areas’.Footnote 61
In order to achieve its objectives, the SJD provides for the establishment of a regional mechanism, made up of political and technical components. The political element consists of a Regional Ministerial Committee (RMC), which is made up of representatives of the Ministry of Environment of each State.Footnote 62 It issues guidelines and supports the process of implementation politically in accordance with the conservation priorities for CMAR, the policies of each participating State and the relevant international framework.Footnote 63 It is the main decision-making body for CMAR.Footnote 64 The RMC meets once a year and its Presidency has a rotating character between the four participating States, each term lasting three years.Footnote 65 The Foreign Ministries of each State also play an advisory role with regard to matters of international relations between the States.Footnote 66 The technical component of CMAR is made up of a Regional Technical Committee (RTC), which is responsible for defining the actions needed to implement CMAR.Footnote 67 It meets twice a year and acts as the advisory body to the RMC. It is made up of a delegate of each State’s Ministry of Environment, who is often a director of one of the core MPAs.Footnote 68 In terms of decision-making, each State has one vote, yet all decisions are adopted by consensus.Footnote 69 The RTC is supported by a Secretariat in charge of carrying out CMAR management actions and coordinating cooperation between the four participating States and any involved international organizations and NGOs.Footnote 70
20.4 Rule of Law Challenges
MPA managers within CMAR territories have identified several limiting factors from a governance perspective, including overlapping or interfering jurisdiction between authorities, lack of coordination between authorities, lack of resources, lack of political will regarding conservation and institutional weakness in the government environmental sector.Footnote 71 While these are issues impeding effective ocean and coastal management more generally in CMAR member States, the following discussion will focus on four specific challenges faced by the marine corridor itself.
20.4.1 Lack of a Legally Binding Agreement
CMAR is a voluntary, political initiative between four States and therefore not legally binding.Footnote 72
Voluntary, non-binding commitments have become a popular tool in international environmental governance, including in an ocean sustainability context.Footnote 73 They have been considered particularly useful in the context of transboundary governance, where competing sovereign interests can delay the negotiation of intergovernmental agreements.Footnote 74 As a political initiative, CMAR offers the possibility to harmonize national positions in the region with respect to marine environmental protection. On the other hand, the lack of any binding force has significant implications for compliance and enforcement. Voluntary commitments are often critiqued for lacking appropriate monitoring and evaluation strategies and not providing sufficient evaluation of their own effectiveness.Footnote 75 The lack of a legally binding agreement also implies no dedicated funding mechanism, which obviously impacts on critical issues such as institutional infrastructure, implementation and capacity for monitoring and enforcement. At a 2004 CMAR Regional Ministerial meeting, it was decided that the Secretariat would be funded by support from other interested governments, international organizations and NGOs,Footnote 76 creating circumstances that have not been conducive to financial sustainability. The Secretariat does not yet have a permanent physical infrastructure and currently rotates between each State every three years, concurrently with the Presidency. The State that exercises the Presidency covers the cost of operating the Secretariat with funds provided by that government’s budget or via international cooperation.Footnote 77 In acknowledgement of the weaknesses inherent in the current non-binding model, the Action Plan for 2019–2024 recommends evaluating the possibilities for transforming CMAR into a legally binding agreement.Footnote 78
20.4.2 Limited Sectoral Participation
Another governance challenge for CMAR is that it was not framed in a multi-sectoral manner from the outset. To create a level of sectoral engagement, Regional Working Groups and National Commissions are provided for within the structure of CMAR. The working groups cover five key thematic areas identified as priorities for conservation in the region (Tourism, MPAs, Science, Fisheries and Communications) and are made up of representatives from government institutions, NGOs, research and academia.Footnote 79 The purpose of the National CommissionsFootnote 80 is to deal with any CMAR-related matters in a national context, and in conjunction with the working groups, incorporate the viewpoints of the different groups carrying out activities in the ETP.Footnote 81 Yet the private sector is notably absent from both. CMAR has acknowledged that interaction with the fishing sector has been limited due to the restricted capacity of CMAR to take political or institutional decisions affecting this sector.Footnote 82
20.4.3 Scale
The scale of a project like CMAR involving transboundary marine management across four jurisdictions is a significant governance challenge. It is the first such undertaking in the region, and progress on formalizing the initiative has been slow due to the legal and institutional complexities involved in managing shared biological resources over such a large geographical area and the limited amount of resources available.Footnote 83 Given that the four CMAR States have already faced significant challenges in effectively managing MPAs within their national jurisdictions, it remains to be seen how this can effectively be done on a larger scale, especially in the absence of a wider supporting ROG strategy. CMAR has not yet been officially delimited from a geographical or jurisdictional perspective.Footnote 84 It is likely that the eventual delimitation of CMAR will only cover an area within the Exclusive Economic Zones (EEZs) of the respective member States, not the high seas pocket included in Figure 20.1.Footnote 85 This is due to the absence of a regional or internationally agreed legal framework with the power to establish protected areas in the high seas. However, the BBNJ negotiations, which aim to address such governance gaps, may result in a new international legal framework for the establishment of high seas MPAs.Footnote 86 The impact this may have on the ETP region remains unclear and will be discussed further in Section 20.4.6.
20.4.4 Fragmented Regional Ocean Governance
The wider ROG framework in the region is fragmented, with limited cross sectoral cooperation, differing membership compositions and varying mandates and geographic coverage. There is no RSP covering the Eastern Tropical Pacific region. While there is the Antigua Convention for the North East Pacific,Footnote 87 which was signed by Panama, Costa Rica, Colombia and several other Central American States in 2002,Footnote 88 it has not yet entered into force.Footnote 89 Out of the CMAR participating States, only Ecuador, Colombia and Panama are parties to the Lima Convention for the South East Pacific.Footnote 90 The Lima Convention applies to the territorial seas and the EEZs of its member States with a narrow mandate in the adjacent high seas, restricted to pollution.Footnote 91 However, its Executive Secretariat, a role held by the Permanent Commission for the South Pacific (CPPS),Footnote 92 has expressed a desire to expand its interests in the high seas.Footnote 93
The CPPS could be considered weak from a rule of law perspective. It has an advisory mandate only and no management authority.Footnote 94 This means it does not have the power to establish legally binding conservation measures such as MPAs. However, it has a lot of support in the region as a cross-sectoral coordinating mechanism.Footnote 95 For example, it has signed bilateral cooperation agreements for the purposes of improving conservation with competent RFMOs in the region, the Inter-American Tropical Tuna Commission (IATTC),Footnote 96 of which all four CMAR States are members, and the South Pacific RFMO,Footnote 97 of which Ecuador is a member and Panama is a non-contracting Party. Given the importance of the fishing sector in the region, this type of cooperation is a positive step forward, especially given that the RFMOs have a management mandate and the power to establish legally binding conservation and management measures.
However, in general, cooperation between the key actors within this region is not well developed and enthusiasm for enhanced collaboration is varied. For example, the Memorandum of Understanding between CPPS and IATTC expired in 2020 and cooperation efforts have since stalled.Footnote 98 IATTC has previously expressed concerns that cross-sectoral area-based planning initiatives may compromise its ability to adopt a flexible approach to species protection.Footnote 99 Given that fishing is a fundamentally important socio-economic activity in the region, there has been reluctance by some authorities to commit to sharing data and information on those resources.Footnote 100 Therefore, it is not surprising that at the time of adoption of the SJD in 2004, the creation of a new regional mechanism was criticized as premature prior to adequately exploring the scope for working with existing bodies in the region, such as the CPPS, navies and the fishing sector.Footnote 101
20.5 The Road Ahead
A key challenge from a rule of law perspective stems from the overlaps and gaps in the mandates of the applicable governance arrangements in the ETP. Previous studies examining ROG arrangements in the ETP region identified ten different governance arrangements but with no overarching integration mechanism in place.Footnote 102 It is arguable that CMAR emerged ‘indigenously’ as a response to the lack of an appropriate governance mechanism to facilitate transboundary marine governance in the region. However, it suffers from several of the same weaknesses that afflict ROG more generally, including a lack of interaction with important sectors such as fisheries, lack of resources and political instability among some participating States.Footnote 103 While bottom-up, State-led regional approaches such as CMAR do appear to engage more active participation of coastal States,Footnote 104 it is submitted that underpinning the marine corridor with a legally binding framework and integrating it within the broader ROG context would significantly strengthen CMAR.
CMAR has had limited interaction with other regional bodies operating in the region. However, cooperation efforts have increased in recent years. CMAR and CPPS have similar action plans and are currently working towards a cooperation agreement,Footnote 105 and there may be scope for a cooperation agreement with the IATTC in the future.Footnote 106 There have been calls for increased cross-sectoral cooperation in this region more generally, with a recent report recommending adoption of an agreement between the CPPS, IATTC and SPRFMO for the purposes of cooperating on data collection, data analysis, joint monitoring and enforcement actions in the Southeast Pacific.Footnote 107
Integration is of course challenging when the applicable ROG framework remains fragmented. It has been claimed that fixing problems of fragmentation in ocean governance requires attention to all levels of policy processes and all types of interaction, but especially coordinating ones.Footnote 108 For this reason, CPPS has been suggested as the best-placed institution to play an integrating role in the region given its long history of facilitating cooperation.Footnote 109 However, the fact that it does not cover the entirety of the ETP could be a sticking point.Footnote 110 A clear benefit that CPPS offers is the institutional support provided by the RSP (which has an explicit mandate for marine biodiversity conservation) such as common regional frameworks for monitoring, assessing and reporting on the state of the marine environment, which can provide a useful baseline for tracking progress against globally agreed goals and targets, such as MPA coverage.Footnote 111 This, in turn, should help to encourage the development of a coherent regional approach to design and implementation of MPA networks. The RSP also provides a useful platform for regions to engage with global ocean governance processes via its association with a UN body; in this way it plays an essential linking role between global and national levels of governance.Footnote 112
While the regional scale has been acknowledged as the most appropriate for the management of biodiversity elements such as networks of MPAs and highly mobile species,Footnote 113 the new BBNJ instrument has the potential to help address some of the governance gaps in the ETP by introducing a legal mechanism at the global level for MPAs, which could potentially provide a legal basis for the designation of MPAs in ABNJ and a set of overarching governance principles to guide oversight and coordination of a global network of MPAs. While the final text of the treaty, and therefore the precise role of ROG organizations, remains under negotiation,Footnote 114 it is understood that existing regional and sectoral ocean governance bodies, as well as cross sectoral cooperation and coordination, will have a critical role to play in its effective implementation.Footnote 115 It has even been suggested that the new agreement should specifically recognize regional cooperative agreements, as part of an ecosystem approach.Footnote 116 This makes sense given that ‘indigenous’, State-led regional arrangements such as CMAR have the potential to mainstream ocean sustainability horizontally at the national level and link upwards into the broader ocean governance field by applying globally and regionally agreed standards.Footnote 117 Given the likelihood of increased visibility and roles for the regional level of ocean governance under BBNJ and the Post-2020 Global Biodiversity Framework, the time is ripe for a strengthening of existing ROG arrangements in the ETP, including CMAR itself, in order to enable the diverse range of applicable instruments to function as an effective, cohesive whole, in line with a ‘multi-level’, polycentric approach to governance.Footnote 118
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