The way ahead: principles and criteria for management and governance of human impacts on the deep sea

Catherine Wallace
School of Government, Victoria University of Wellington
Wellington 6001, New Zealand
<[email protected]>

1. INTRODUCTION

The deep-sea environment is an important part of global systems and habitat and is intimately linked as a complex bio-geo-physical system to air, land and freshwater systems. It has a range of functions and values. The High Seas are part of the global commons under the 1982 United Nations Convention on the Law of the Sea (LOSC). Some deep-sea areas are within 200 nm of land, others are beyond. Some aspects of the deep seas are already under management by a variety of multilateral agencies - and finding "fit" among these will be a major challenge.

Human activities in the deep sea outside of national control are only partially controlled by existing agreements. Some uses deplete or degrade the environment and resources. Other uses and values are non-consumptive but are harmed or impeded by other uses or impacts. There is no overall environmental protection regime, especially for biodiversity and ecosystem function protection, though regional fisheries agreements, the international Seabed Authority and a patchwork of other agreements provide the frameworks for, and in some cases actual, but not always effective, controls to limit harvests, extraction or impacts. International agreements are designed to move from a situation of open to limited access for a variety of activities and impacts.

There is a substantial "genealogy" of agreed, or suggested principles, and criteria for international governance, law and environmental management. This paper does not canvass all the prior principles, but rather discusses a small subset of particular concern in relation to certain aspects of the governance and management of human uses of, and impacts on, the environment and resources. The purpose of the paper is to distill principles and criteria for governance and management that are of interest in the design and implementation of institutions and measures for the governance and management of human impacts on, and management of, the deep-sea environment and resources.

Definitions of "deep" vary, but can be 400 m depth and deeper (ICES 2003a,b). While different scholars and jurisdictions use differing reference points the exact definition is not material to the discussions below.

Graham, Amos and Plumptre (2003) define governance as "the interactions among structures, processes and traditions that determine how power and responsibilities are exercized, how decisions are taken, and how citizens or other stakeholders have their say".

The public or common concerns, interests and property

The oceans and deep sea, if they are outside national boundaries, are variously seen as owned by none or owned by all. Assertions of ownership are a human construct and the notion that one species owns the planet and all other species is regarded by many as improbable from both an ethical and an evolutionary perspective (Fox 1990). Paradigms of stewardship, guardianship and responsibility supply an alternative basis for making decisions.

Damage to the environment consists essentially of what property rights theorists would call private "taking" of public good - or the "property" of all. As the rapid depletion of the orange roughy stocks in the Indian Ocean (Lack, Short and Willock 2003) and the rampant illegal, unreported and uncontrolled (IUU) fishing for toothfish in the Southern Ocean vividly demonstrate, in the absence of effective controls, fisheries, other ocean resources and the host environment are open access resources subject to competitive depletion, significant, and at times, irreversible damage with losses to many and gains to a few.

The LOSC notion of the seas as "Common Heritage of Mankind" may have been an attempt to find language that avoided the term property but fails adequately to convey the sense that humans are one of many species dependent on the sea and its biophysical processes. Other language, such as the "Common Interest of Humanity" or the "Common Concern of Humanity" are discussed by Kiss (1999) as a basis for international law and rules to express the basis for the international community to act. This notion or principle of "common concern" can apply in some senses to all the planet’s inhabitants: since we are all interdependent. To do so is to avoid the "human chauvinism" that sees the Earth and non-humans as at human disposal. This is not to suggest that human and non-human interests always coincide, any more than that those of individual nations fully coincide on all issues, or that those of individuals do. Rather the point is, that there are some things where there is common interest and the state of the planet and its inhabitants and the rules that govern these is one.

In the international arena, the United Nations, its charter and its organisations are one crucial part of the landscape. Institutional arrangements for governance are mostly focussed on a variety of problem-based, use-based, regional or sectoral (e.g. fishing, mining, pollution control, maritime transport, science, meteorology, biodiversity) agreements. Since the environment is affected by a range of human activities, it may not be enough to manage these impacts through individual agreements and governing bodies. Some agreements are either dated and fail to incorporate ecosystem-based management principles or are ill-suited to considering a wider range of issues than was envisaged when they were negotiated.

Environmental and resource management regimes increasingly recognize that the ecological, cultural, social and economic aspects of problems must all be faced - and that institutional forms and arrangements both reflect and distribute power. These have a significant influence on how decisions are made and their outcomes. Technological changes obviously can transform uses, harvesting and monitoring and enforcement - be these at sea or on land.

Enthusiasm for new arrangements must be tempered by knowledge that the process of setting up any new agreement and its administering body is contentious, laborious, time consuming and may run the risk of unravelling what has previously been agreed. The expression of aspirations for the future and for control of humanity’s powers to harm have to wrestle with national and sectional self-interest, and a status quo in the international realm, and frequently also natural jurisdictions, with inadequate and sometimes inept or powerless controls. The achievement of controls is obviously prey to bargaining holdouts, defections and slack, negligent or corrupt implementation.

The Public Choice school of economic thought has enlivened us to the potential failure of governments and also to the potential for regulator capture by the economic interests of those agencies that are set up to manage resources and the environment as agents for the wider community. This should not lead us to abandon fisheries and marine management but rather to take great care in the institutional design for governance and management and the criteria that are applied in making governance and management decisions.

Inadequacies of current arrangements, however, are not hard to find and integration of management of human uses and impacts is strongly needed. In considering principles and criteria for the management and control of human impacts on the deep sea, it is worth bearing in mind that these could be applied to either a new agreement and governance regime or to the operations and decisions of the existing patchwork of agencies and decision making, if the existing gaps or deficiencies can be bridged, remedied or tolerated. Further, international decisions and agreements on the environment and resource management must, like all other environmental impacts management systems, face up to the distributional and ethical content of decisions.

2. SOURCES OF HUMAN IMPACTS ON THE DEEP SEA

There is a wide range of human uses of, and impacts on, the deep sea - but some of these, such as climate change, already have their own international agreements (e.g, the United Nations Framework Convention on Climate Change and the Kyoto Protocol). Impacts on the marine environment and biodiversity include those from fishing, legal or illegal, direct impacts of fishing gear on the benthos, bycatch and incidental mortality and ghost fishing from lost fishing gear. Regional fishing agreements provide some basis for the regulation of fishing but there is extensive illegal, unregulated and, or, unreported fishing. Subsidisation of fleets intensifies these pressures and will need to be considered in both economic and environmental forums.

Mining and prospecting on the high seas are managed under the auspices of the International Seabed Authority and has it own set of effects on the environment. The Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP 1990) estimated that 80 percent of marine pollution comes from the land and fresh water systems. Plastic debris and other pollutants remain of considerable concern (Gregory 1998).

Bioprospecting remains largely unregulated, both within many EEZs and in the high seas. It is already clear from work on seamounts that they have high levels of species endemism, even allowing for the paucity of information on the distribution of species (Koslow and Gowlett-Holmes 1998). Electricity generation, military activities, dumping and pollution all may have adverse environmental impacts. Dumping and pollution are already addressed by the international community, but the impact of military activity is the subject of resistance to controls.

3. EXISTING GOVERNANCE ARRANGEMENTS

3.1 Sources of principles and criteria for governance and impacts management

Principles and criteria for both the process and content of international agreements on the governance of the deep sea can be gleaned from previous precedents and agreements, from existing and emerging international law, from disciplinary theory and experience. Useful insights can be gained from the international literature and disciplines of public policy and governance theory, ethics, economics, law, institutional and organisation theory, and environmental and resource management theory and practice.

3.2 Hard and soft international law

Sources of international law relevant to the deep sea include: the Charter of the United Nations and UN General Assembly Resolutions; the UN Environment Programme; UNESCO and various scientific agreements and obligations; The UN Food and Agriculture Organization and particularly the Code of Conduct on Responsible Fisheries. Central to deep-sea management is the 1982 UN Convention on Law of the Sea, the derivative 1994 Implementing Agreement relating to Part XI relating to the issue of deep-seabed mining and the 1995 Agreement on the Implementation of the Provisions of the Law of the Sea Convention Regarding Straddling Fish Stocks and Highly Migratory Fish Stocks (referred to in this paper as the Fish Stocks Agreement).

The LOSC makes the high seas a global commons and guarantees rights carried over from the 1958 Convention on the Territorial Sea and the Contiguous Zone and the 1958 Convention on the High Seas. The high seas are not "open access". The LOSC confers certain freedoms: of navigation, of overflight and laying of cables and pipelines, of fishing, of the creation of artificial islands and of scientific research (Art 87). None of these rights is untrammelled. All are subject to the unqualified obligation on states to "preserve and protect the marine environment" (Art 192), (rights to exploit are conditional on such protection (Art 193)), the obligation to observe the reservation of the high seas for peace and to the obligation of benefit sharing. It is not necessary that the benefits be financial. The UN Convention on the Law of the Sea is now understood to be both treaty law and, through widespread adoption and implementation, also to have become customary international law.

The 1992 UN Conference on Environment and Development (UNCED) set in place a consensus on important principles of sustainable development, captured by the Agenda 21 statement and the Rio Declaration. The international community underscored the significance of biodiversity protection in the 1992 Convention on Biodiversity (CBD) and subsequent elaborations. The 1992 Framework Convention on Climate Change and the derivative Kyoto Protocol, which though not yet in effect, represents clear international concern at anthropogenic greenhouse gas emissions and commitment to action, albeit with notable exceptions.

The World Conservation Union (IUCN) to which a substantial number of governments belong provides an interesting model of governance where both governments and civil society interact, with the common cause of conservation. IUCN has 76 state members, 114 government agencies, and non-governmental organizations, both national (735) and international (77). IUCN’s statutes together with its mission, objectives, goals, resolutions and recommendations provides a set of processes and policies that have wide acceptance and form reference points for many governments. IUCN has often been the development ground for international environmental law, including the Convention on Biodiversity. IUCN has commissions who contribute expertise - from both government and non-government bases. Four-yearly World Conservation Congresses allow for examination and discussion of issues and for dialogue between the governmental and non-governmental organizations - which is supported intersessionally by regional and national committees.

MARPOL, the London Convention and other pollution control agreements and treaties serve a duty of care, to avoid harm to the environment, to cooperate in addressing risks and environmental harms. The precautionary principle and the polluter pays principles are also part of these agreements.

Core principles of regard for the environment for its intrinsic qualities rather than simply to satisfy human values underpin a range of domestic and international agreements, including the Antarctic Treaty and the Madrid Environmental Protocol. Peace, science and forbearance for the sake of the future and security underpin the Antarctic Treaty System (ATS) including the Antarctic Treaty (1961), the Convention on the Conservation of Antarctic Marine Living Resources 1981 (CCAMLR), and the 1991 Madrid Protocol to the Antarctic Treaty on Environmental Protection. The Antarctic Treaty set in place a system of governance over a vast area of territory where humans are late-comers and where human control and sovereignty are not only contested internally but externally to the Treaty. The Antarctic Treaty made clear the primacy of peace and science. CCAMLR established the first ecosystem-based marine management regime.

Initially, the ATS faced a crisis of legitimacy during the 1980s when an apparent "rich countries’ club" seemed set to divide property rights to minerals among the powerful and opinion-leading nations. That crisis of legitimacy was only resolved when the ATS abandoned the Antarctic minerals regime negotiated from 1982-88 in favour of the Madrid Protocol on environmental protection and its various annexes. CCAMLR, however, now faces its own crisis: as some member countries prove unwilling to confront each other effectively about IUU fishing and diplomatic considerations triumph over good resource and environmental management. Widespread IUU fishing by vessels and nationals of countries in CCAMLR and some non-members, mean that the tragedy of poor access controls is being all too vividly played out.

The need for future-regarding policies and actions and the need to observe the limits and carrying capacity of the environment to withstand human impacts are to be found, elaborated and developed in the successive international agreements or declarations in the Stockholm Declaration 1972, the World Charter for Nature 1982, Agenda 21, the Rio Declaration of 1992 and the World Summit on Sustainable Development 2002. Equity in sharing benefits, both present and future, are also embedded in these agreements, but, as with the LOSC, it is clear that protection of the environment is regarded as a binding constraint and any use made of the environment and resources is contingent on respect for the future and for ecological processes.

The FAO Code of Conduct on Responsible Fishing (FAO 1995) and the associated International Plans of Action (IPOAs) on the Management of Fishing Capacity, Shark Fisheries and Incidental Catch of Seabirds in Longline Fisheries are an important set of management considerations (FAO 1998). The Code provides principles and standards applicable to the conservation, management and development of all fisheries. It also covers the capture, processing and trade of fish and fishery products, fishing operations, aquaculture, fisheries research and the integration of fisheries into coastal area management.

Sands (1995) notes the priority accorded to the conservation of biodiversity and "the protection of oceans and seas (including coastal areas) and marine living resources" by the 1992 UN Conference on Environment and Development. This priority was reinforced by both the 1992 Convention on Biodiversity and by the World Summit on Sustainable Development 2002 (Articles 30 to 34 and 36). These include the following summary of relevant articles:

30. (b) Promote the implementation of chapter 17 of Agenda 21;

(d) Encourage the application by 2010 of the ecosystem approach

(e) Promote ocean policies and mechanisms on integrated coastal management;

31. To achieve sustainable fisheries, the following actions are required at all levels:

(a) Maintain or restore stocks to levels that can produce the maximum sustainable yield with the aim of achieving these goals for depleted stocks on an urgent basis and where possible not later than 2015;

(b) implement the relevant United Nations and associated regional fisheries agreements

(c) Implement the 1995 Code of Conduct for Responsible Fisheries

(d) Urgently develop and implement International Plan of Action for the Management of Fishing Capacity by 2005 and the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing by 2004.

32 (a) Maintain the productivity and biodiversity of important and vulnerable marine and coastal areas

(c) Develop and facilitate the ecosystem approach, the elimination of destructive fishing practices, the establishment of marine protected areas including representative networks by 2012;

33. Advance implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities and the Montreal Declaration on the Protection of the Marine Environment from Land-based Activities

34. Enhance maritime safety and protection of the marine environment from pollution by actions at all levels to...

36. Improve the scientific understanding and assessment of marine and coastal ecosystems as a fundamental basis for sound decision-making.

4. PRINCIPLES FROM INTERNATIONAL LAW

Sands (1995) canvasses a wide range of sources of international law and agreements and identifies and documents principles of international environmental law as including:

"a) the obligation reflected in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, namely that states have sovereignty over their natural resources and the responsibility not to cause environmental damage;

b) the principle of preventative action;

c) the principle of good neighbourliness and international co-operation;

d) the principle of sustainable development;

e) the precautionary principle;

f) the polluter-pays principle; and

g) the principle of common but differentiated responsibility."

He notes that the obligation not to cause environmental damage applies both within national territories and jurisdictions and to areas beyond national jurisdiction and that this obligation is extensively reproduced and reaffirmed. Other principles of international law include freedom of the high seas, common heritage, peaceful settlement of disputes, principles of international co-operation and prior informed consent.

5. PRINCIPLES OF GOOD GOVERNANCE

Graham, Amos and Plumtre (2003) articulate five good principles of governance, derived from UNDP principles of good governance (1997), which they present as follows:

Much, but not all, of their grouping and elaboration of principles is adaptable to the deep sea.

6. THE LISBON PRINCIPLES FOR SUSTAINABLE GOVERNANCE OF THE OCEANS 1997 AND RELATED IDEAS

The Lisbon Principles for Sustainable Governance of the Oceans (Soares 1998) are relevant to the governance and management of the High Seas. These, reported by Costanza et al. (1998), include:

• Responsibility - access to environmental resources carries responsibilities relating to environment, society and efficiency, including non-depletion and fairness.

• The spatial scale and time frames of management and governance must match those best suited for sustainability, with capacity to straddle both generations and nations.

• Precaution in decision making is required when there is uncertainty.

• Responsiveness to changed circumstances, understanding and insights is required by decision makers to enable adaptive management.

• Full costs and benefits from natural resource use should be reflected in prices.

• Participation of all stakeholders is important in the development and implementation of decisions regarding the environment and resources and

• The incentives of consumers and private operators must be realigned to those of society.

Rayner (1999), in discussing the implementation of the Lisbon principles, makes several useful points. In examining diversity in the management of uncertainty and coordination he notes the need to overcome two major challenges, (a) to act under uncertainty, natural and human-induced and (b), to coordinate between and within agencies and jurisdictions. He also notes that while the notion of efficiency is well defined it is not universally valued but there is more consensus on efficiency than with the principles of equity for which there is no consensus. In adapting Young’s (1993) approaches for making fair allocations of resource (proportionality, priority and parity) he suggests that the components of proportionality, encompassing contribution, seniority and need are such that they should be determined by administrative allocations made by an adjudicating authority.

Priority, by contrast, is an allocative principle achieved by competition, in time or in right - as now applies in open access fishing or in much water allocation. Parity is the third distributional principle: this is equal shares to each claimant. Young uses the example of proportionality and parity combined, to explain claims for Asian countries to take more on the grounds that their larger populations are more dependent on seafood protein. Principles of responsibility and consent apply both to nations and to operators - responsibility extends to liability for damage, a measure that may also achieve efficiency in internalizing costs.

Rayner (1999) suggests that because the notion of fairness is contested and without consensus, we should recognize the need for fair institutions and rules of process and contest. He points out that the LOSC essentially already goes some way to make some entitlements and obligations clear. Concentrating on fair rules for contest allows varying values to be considered in resolving contests, focussing on achieving joint action even when principles of equity are in dispute.

The work of Ostrom, (1990), Ostrom, Gardner and Walker (1994), Ostrom et al. (2002) has examined the capacity and criteria for communities to manage resources. Ostrom’s work allows us to judge from the situational, societal and resource variables persepctive that for success in common pool resource management the deep sea does not qualify for a hands-off, no-government management. There is no local community of people. There is significant conflict over objectives, there is great difficulty in monitoring and there is significant scope for unobserved poaching.

Bakker (2004) canvasses good governance principles for water management, and suggests that good governance builds on principles that create objectives and policies (in Graham, Amos and Plumptre’s 2003 terms); and are accountable, responsive and adaptive and require good information. He notes that governance processes must be open, transparent and facilitate participation of stakeholders, be effective and efficient and respect the rule of law.

7. PRINCIPLES FROM PUBLIC POLICY

The extensive public policy literature documents a number of common principles or criteria for management and governance (Hogwood and Gunn 1984, Quade 1989, Weimer and Vining 1989). These note that public policy and governance should reflect the following.

i. Effective. This requires appropriate problem definitions, diligence, the choice of the right data, analysis, instruments, institutions forms and structures, monitoring, enforcement and adaptation. The weak point of CCAMLR in trying to contain IUU fishing is the unwillingness of states to speak bluntly to each other and the unwillingness of some states to discipline their nationals, vessels and traders for engagement in IUU fishing. In the deep sea, one part of the solution to this is to provide for a standing pool of professional observers, inspectors and regulators to avoid national diplomatic considerations that usually inhibit multilateral agencies from confronting IUU fishers and poachers. A second part of the solution is provision for third party standing (such as NGOs) in regulatory agencies deliberations and for taking action in national and international courts and tribunals. This is one means of making for more transparent, frank and less compromized decision making.

ii. Transparency of documentation This is essential for good public policy. Real-time reporting by electronic means, which are verifiable, is a further essential element to achieving effective monitoring. In this, technology advances are on the side of effective monitoring and reporting. Commercial secrecy must take second place to verifiable reporting so that poaching and other such activity is not provided with a cloak to hide behind. Flags of convenience are the bane of the international system - the world community must tackle these and find ways of removing the shelter that they provide to wrong-doers.

iii. Accountable to the principals. In the case of the deep sea, the principles are the whole of humankind, non-humans conceived as the whole ecosystem or ecosphere, and the future.

iv. Transparent and participative. There are both intrinsic and instrumental reasons for direct access to decision-making processes by civil society. Intrinsic arguments focus on the rights of civil society to engage with governmental processes as part of democratic underpinnings of governance and accountability of governance (Webler and Renn 1995). Instrumental arguments suggest that civil society and NGOs enable access to expertize, information and insights not necessarily available to states or multilateral agencies. They may also bring a willingness to break collusive silences when there is state or multilateral malpractice or sloppiness of monitoring and compliance or enforcement. Inclusion of the public and transparent processes militate against corruption and slackness, enhance the quality and legitimacy of decisions and the willingness of those who have to comply (Webler and Renn 1995).

v. Clearly defined processes, open to all governments and to non-governmental actors. The institutions of any new agreement must be representative of the world community, and in their activities, open to input from the public and stakeholders. Disclosures must be made in a timely fashion. Participatory processes require not only putative opportunities for input but assistance to non-commercial interests to have input. Otherwise decision making will inevitably be dominated by vested interests. Such assistance should be provided by the competent authorities as part of the budget for governance arrangements.

vi. Fair and non-discrimination. Like must be treated alike (the principle of horizontal equity), though unlike may, following the principle of vertical equity, be treated differently from each other in order to secure equal opportunity. Fairness applies to both process and outcomes and has an intertemporal dimension.

vii. Protective of the interests of the future. Temporal nepotism should not be allowed so that the interests of the present do not dominate the interests of the future. This is particularly relevant when there are activities in the deep sea, such as trawling, that can destroy biota hundreds or thousands of years old, such as reef corals or long-lived fish.

viii. Use good information and make timely decisions. Deferring decisions in the pursuit of perfect information may prevent otherwise good outcomes.

ix. Recognize risk, uncertainty and ignorance and manage with learning and adaptability. This would factor in reviews and opportunities for adjustment. Capricious change is to be avoided, but certainty cannot be guaranteed and may transfer risk to others or the environment.

x. The precautionary principle should apply.

xi. Abide by the rule of law and principles of sound administration. This includes international law.

8. ECONOMIC PRINCIPLES

There are many economic principles relevant to gouvernance and management. These are:

i. Agents to act in the interests of the principals. The commons is held in trust for all, and as such should be administered for all, not principally for the miners, fishers or bio-prospectors who wish to exploit or extract resources.

ii. Principle of control of access. Economic analysis suggests that it is not possible to achieve efficiency with open access^[378]. One of the purposes of an agreement for the management of human activities and impacts in the deep sea is to define access rules and permits and to make clear how natural capital is to be maintained, what impacts are unacceptable and which may be tolerated under which circumstances (Purge 1995).

iii. Principles of efficiency. Environmental management should aim at achieving efficiency, both static and dynamic (over time), but there is an unresolved debate over appropriate discount rates. Since discount rates are important influences of resource exploitation. This will require consideration of inter-temporal ethics.

iv. Principle of recognition of all costs and benefits. The principle of efficiency requires recognition of all services, goods, ecological and bio-geophysical functions of the marine environment, including the value of the marine environment in situ. It is not efficient to disregard impacts on the environment or the future.

v. Discount rate divergence and the public good nature of environmental protection and conservation requires mechanisms for collective choice. Long-lived, slow growing ecosystems and their biota are likely to be at risk from discount rate driven ‘impatience’. Private and social discount rates may well diverge. If society prefers to retain ecosystems, mechanisms to restrain private impatience are required. The aspects of the marine environment that are recognized and valued by different players as important may also be strikingly different, so mechanisms for collective choice must be designed.

vi. Full internalization of costs. Principles of economic efficiency (and equity) also require that full costs are faced by those who cause environmental harm, and that there is full internalisation of management and scarcity (i.e. resource rental) costs. This should not however extend to control by those who pay the costs of management decisions.

vii. Realignment of private incentives to public incentives. Economic influences, such as incentives to externalize costs, to free load or to operate according to discount rates that exceed those that society deems just, must be recognized and controlled so that incentives are re-aligned by smart interventions that achieve social goals cost effectively.

viii. The principle of defence of non-market values with rules. Principles, criteria, institutions and rules for allocations of access to the deep sea are required to align private incentives with the interests of society and the future. Creation of markets within these rules is possible, but there can be no efficient allocation through markets in the absence of such rules because of the complexity of bio-geophysical systems and natural capital, the multiplicity of ecological functions and the physical or ethical non-substitutability of financial capital for natural capital.

ix. Independence of governance from capture. Good governance principles identified by the Public Choice school of economics and by various theories of good governance from political science and economy stress that governance should not be captured by vested interests. This principle suggests that governance of human activities and impacts on the deep sea should not become the primary province of those who wish to exploit it.

This is not to say that there should not be opportunities for input by stakeholder into decisions by the management agency or agencies - but care must be taken to resist proposals, often founded on notions of reducing difficulties of compliance, that those doing the harvesting should have dominant control over resource management decisions. Such proposals are often founded on situations of management where there is only one use - such as harvest. Where there are management objectives with multiple values at stake, including in situ uses and values and foot-lose harvesters with few ties that bind, as may occur in the deep sea, then self-management approaches are unlikely to work well.

x. Total economic value. Instrumental arguments for the value of bio-geophysical and other services and goods from the environment have built on the work of ecologists, oceanographers, climatologists and others. Attempts by ecological and environmental economists to provide monetary valuations of these ecological services and other benefits to humans are controversial and varied (see for instance Ecological Economics Vol 25, No 1 April 1988). Many of these attempts are designed to express the wide range of non-consumptive values attached to these uses of the environment. These are known to economists as "Total Economic Value" (TEV). The calculation of TEV can offend some by its reductionist approach that obscures interdependencies and commodification of the environment. It is commonly done to stress to decision makers the legitimacy and significance of the non-market values of services and goods from the environment and the ecological functions.

xi. Cost effectiveness. Considerations of distributive policy within the rules defined and imposed by ethical effectiveness should minimize all costs, including environmental and transactions costs.

xii. Acceptance and compliance. Governance arrangements in international affairs have to be agreed to by states of varying power who in turn have to be capable of influencing and binding players who can exert considerable skill and resources to thwart controls. Agreements have to be achieved within the realities of power. Arrangements to promote compliance include real-time monitoring, participation in rule formation and effective sanctions.

xiii. Funding mechanisms not to undercut effectiveness and fairness. Effective monitoring, compliance and enforcement measures are needed and these must be funded in ways that do not undercut effectiveness, fairness and accountability.

xiv. Adequate funding as a pre-requisite to access to resources. Any agreements to open areas to fishing or other biodiversity-impacting activities could be contingent on resource rental payments to suitable authorities or governments with some of this revenue used to cover the cost of management and research, to assist public engagement in decision making, for enforcement and for sharing of other revenues for poverty alleviation. Funding must, in the first instance, be by participating governments who may recover some costs from extractive and other commercial users (eg energy generators) and others who cause harm or undertake activities that must be managed. Disbursement of funds, however, must be undertaken and administered independently of sources of revenue, but with consultation with all stakeholders.

New Zealand’s Quota Management System has demonstrated the danger that those who manage fisheries will come to regard harvesters as more important than society and its values for whom the Ministry of Fisheries is supposed to be the agent (Wallace 1998, 1999). An international agency or agency would have to have a clear governance regime in which those with non-extractive interests were represented, given voice, part of decision making and seen as having legitimacy. In New Zealand this attitude of legitimization of fishing industry control has become encapsulated in the slogan of "user pays, so user says" (Wallace 1998). Institutional arrangements to prevent industry capture of management and enforcement need to ensure that user-pays funding does not provide a short route to industry capture of management and governance.

xv. The principle of mutual assurance of restraint. Restraint in harvesting, mining and the provision of environmental protection and conservation benefit all, but like other public goods, are subject to free-loading. Commitments by both states and operators and other measures are needed to provide "mutual assurance" that all will play their part in achieving forbearance, enforcement of harvesting limits, and protecting the environment.

xvi. Principle of good information, reliable real-time reporting. Nations and multilateral agencies need good real-time monitoring, real-time verification of vessel locations, harvesting activities, product verification and unloading using technologies that are not subject to falsification.

xvii. Principle of enforcement and effective "credible threats". Since there are many incentives to break rules, "credible threats" are required to poachers or other IUU activity to deter and penalize non-compliance.

9. FAIRNESS PRINCIPLES

9.1 Distributive principles

This is a particularly difficult set of principles on which to achieve agreement, especially for principles for intragenerational equity. Rules of process and participation distribute power and so may remove distributive gains and losses. We need to bear in mind Rayner’s advice not to try to solve these issues down to the last details, but to devise fair processes for future contests. The LOSC, the Convention on Biodiversity and other instruments already embody both principles and rules.

9.2 Future regarding principles

Provision for the future is the subject of a considerable literature, much of it underpinning the concept of sustainable development. Domestic and international instruments frequently include the formulation of the World Commission on Environment and Development (WCED 1987): that "Sustainable development is development that meets the needs of present without compromizing the ability of future generations to meet their own needs." Principle 3 of the Rio Declaration states that "the right of development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations". The WCED formulation has the great merit of wide international acceptance, but the reference to "future generations" can lead to both narrow anthropocentrism and to sterile arguments as to what constitutes a future generation (D’Amato 1990, Brown Weiss 1990).

Edith Brown Weiss’s principles were developed using four criteria:

i. The general acceptability of principles across time, culture and economic and political systems

ii. There must be equity among generations both in terms of using up resources and in terms of providing for future generations.

iii. Independence - we should not have to predict values (preferences) of future generations

iv. Clarity - they must be clear to apply.

Weiss came up with three principles that fulfil these criteria:

i. Conservation of Options. Each generation should conserve the diversity of the natural and cultural resource base to preserve options for tastes, values and problem solving of future generations, and because of the entitlement of the future to diversity.

ii. Conservation of Quality. Each generation has the entitlement to receive the planet in no worse condition than that received by the preceding generation.

iii. Conservation of Access. Each generation must ensure that its members have equality of access to the legacy of the past, and equal responsibility to the future. (This is essentially an intra-generational fairness requirement).

These principles constrain action but do not dictate them.

Lother Gundling (1990) suggests that these obligations to the future imply:

i. The obligation to pursue a preventative (precautionary) policy regarding possible harm to the environment.

ii. The obligation to reduce environmental pollution [in our context any form of environmental harm, including invasive species] to a minimum.

iii. The obligation to develop technologies that do not harm the environment. This suggests the need to reconsider some of the most damaging technologies such as bottom trawling.

Taking a different tack, provision for the future can be separated into "needs to have" and "needs to be free from". The former includes intact ecosystems, future supplies of food and resilient and productive ecosystems capable of continuing with ecological and biophysical systems intact. Preserving opportunities implies that irreversible, long term or significant damage would be unacceptable.

It often helps too to examine the "freedoms from". High in this list is likely to feature invasive species, pollution and depletion of biodiversity and other environmental damage.

10. ENVIRONMENTAL AND NATURAL RESOURCE MANAGEMENT PRINCIPLES

10.1 Sustainability, natural capital and ecosystem-based management

To be sustainable resource use must maintain ecosystem functions, bio-geophysical systems and natural capital must not be significantly depleted, degraded or polluted. Environmental and resource management must extend to ecosystem-based management, i.e. avoidance of environmental impacts and where possible remedy and mitigation. Ethical obligations including those for the future imply rules both within the framework of the constitution of any governing body and incorporated into subsequent decision rules.

The need to limit impacts and stress on the environment should be part of any constitution and agreement. Decision theoretic approaches that map out potential scenarios and decision rules in the case of a variety of situations with the capacity for rapid response should form part of measures to cope with uncertainty. Ecological sustainability and commitment to the future requires recognition of the importance of "natural capital" and the non-substitutability of ecosystem services and other services from the environment by human-made capital. Thus, the principle of avoidance of environmental harm and maintaining stocks and ecosystem processes should become core principles of management.

10.2 Ecosystem-based management is required

Ecosystems, such as the deep seas, are part of the biosphere and are not capable of being managed successfully in a reductionist way, i.e. one that fails to value ecosystem functions. A necessary but insufficient condition for this is that individual stocks are maintained in healthy abundance and distribution. Ecosystems must be maintained and so biodiversity in its full range and function. Where harm or depletion occurs, and be the charge to those responsible, the value of any losses of natural capital from human uses and impacts should be assessed and sheeted home to those who cause damage or depletion in order that externalities are internalized.

10.3 Principles of information sufficiency, impacts assessment

Both environmental and natural resource management practices in many domestic jurisdictions and international regimes require some form of information sufficiency test and impacts assessment. We can identify a principal of information sufficiency such that an activity cannot proceed in the absence of data. An example is the CCAMLR requirement of "No data, no fish" - where fisheries were closed if necessary data was unavailable (CCAMLR 1990, 1991). However, formulations for use of the "best available data" while worthy, may allow delay while the question of whether the data are the "best" is contested, as CCAMLR has experienced.

The Principle of Impacts Assessment is related to the information sufficiency test and requires that any use of the environment requires prior assessment of the environment and the impacts of the activity. This requires consideration of cumulative effects as well as the specific proposed use or activity. The Antarctic Environmental Protocol, CCAMLR and many domestic environmental and resource management regimes require such assessments.

10.4 Duty to consider alternatives

It is common in modern environmental management to consider alternatives, both for proposed uses or activities and for proposed control measures. Part of considering alternatives is strategic environmental assessment and sustainability analysis. Both are part of modern environmental and resource management (Thérivel and Partidário 1996).

10.5 Scale matching

Human activities and impacts occur at several scales, which management must match, but more particularly, management also needs to match the scales of the ecotypes and populations of the environment and the areas of impacts. Thus, environmental management must "fit" the scale of the environment and the human geography.

10.6 The principle of closed until opened

This principle implies that there is an access regime in place, rather than there being open access. Unacceptable impacts mean there should be no activity and access is closed unless opened. The onus of proof is on the proponent operator, their state or agents to show no harm will occur or there is a sufficiently low risk of harm. This provides incentives to reduce harm. Such processes of decision making must be open and transparent.

10.7 Principles for governance and management design for risk management, learning and adjustment

The design of management and governance must recognize the multiple sources of uncertainty, ignorance and risk, with their companion requirements of caution, learning, review and adjustment of institutions, control decisions, entitlements and duties. Uncertainty, ignorance and risk require recognition of the possibility of change, of design defects in institutions and that things may go wrong. These require design for adjustability, which is also needed as the world, knowledge and, values change. Monitoring must be effective, verifiable, and subject to evaluation and effective response.

Decision scenarios and rules or trigger points developed in advance with agreed reference bases and prior agreed processes provide rules that facilitate agreement. Such prior rules hasten rapid reactions and responsiveness without sacrificing inputs from interested parties and fair process. Provisions must, however, remain for dealing with unforeseen outcomes. One of the implications is that management instruments should not hinder non-capricious adjustments of controls. Given the apparent optimism of many deepwater fishery managers, being able to correct errors for over-optimism and resist pressures from vested interests is crucial. Privatisation of the rights of access may make this more difficult.

10.8 Precautionary principle

The precautionary principle is now widely recognized as an important part of environmental and resource management where there are complex ecological systems, inventive humans with incentives to beat regulations, ignorance of ecosystem relationships and human impacts and uncertainty about how people will respond to regulatory and other controls. The precautionary principle recognizes the need for learning and the need to change, as more information becomes available. It has a range of expressions, but in essence implies that, in the presence of uncertainty, authorities should avoid actions with the potential for significant or irreversible harm, should adopt an information sufficiency principle and should not allow the absence of definitive proof to delay taking action that may be needed to protect the environment.

10.9 Recognition of legitimacy of a wide range of uses, interests and values

Caddy (1999) defines the "wide use" approach to marine and fisheries management as that which recognizes both the non-commercial and non-extractive uses and values of marine creatures and their environments, as well as the commercial uses. Within national jurisdictions this is reflected in participatory environmental and resource management. It includes those who value the many in situ functions and uses of marine organisms and structures and their part in ecosystems. Ecosystem-based management is designed to recognize that marine organisms and structures are part of ecosystems and that they have ecosystem functions. Fishing and other harvesting have a range of consequences within ecosystems and their biotic and abiotic components and systems and hence the concern to control these impacts.

11. PRINCIPLES AND CRITERIA FOR GOVERNANCE AND MANAGEMENT OF THE DEEP SEA - WAYS FORWARD

11.1 Definitions

The broad definition of "good governance" of UNDP (1997) further developed by Graham, Amoz and Plumtre (2003) is used here to develop and organize the applications of the principles to the deep sea. These are legitimacy and voice, direction, performance, accountability and fairness.

11.2 Legitimacy and voice

Governing bodies must provide for input from representatives of the full range of consumptive and non-consumptive values and uses. Non-market uses and values attached to the deep sea must be considered. As affirmed by Agenda 21 and national and international practice, public participatory processes can add quality, legitimacy and accountability to governance, including multilateral governance. Participation should also be accepted as a democratic right.

11.3 Direction

Sustainability is already a well-established and accepted objective for management of the commons. Much direction has already been established with the LOSC, the Convention on Biodiversity, the World Summit on Sustainable Development and the UN General Assembly resolutions in relation to ocean management. Principles that apply include:

• Strong sustainability with no loss of natural capital, i.e. harvesting must not damage natural processes or diminish the carrying capacity of the deep sea.

• Responsibility to avoid significant environmental harm, to develop non-destructive technologies (e.g. to avoid trawling) and to manage on appropriate scales and time frames.

• A precautionary approach and responsiveness to new information and changed circumstances when there may be adverse consequences for the environment.

• Effectiveness and efficiency, including the recognition of all sources of value and all kinds of costs.

• Realignment of private and scoial incentives to avoid the otherwise dominant incentives to over-exploit and to externalize costs.

11.4 Fairness

Fairness requires equity and the rule of law. Equity refers to both process and outcomes and relates to participation and intra-generational and inter-generational fairness. Developed and developing countries, commercial and non-commercial stakeholders require unequal treatment to provide equal opportunities. "Leveling the playing field" requires assistance to those such as environmental non-governmental organisations (ENGOs) and other disadvantaged parties. This should be funded from contributions from those who impose or seek to impose impacts, possibly from resource rents. This provides "voice" to those otherwise unable to participate.

Allocation rules are highly problematic. They could follow the Rawlsian maximin principle^[379] (Rawls 1971), or inverse allocation to the stock already taken, or damage done. There will be pressure for "side payments" to induce compliance. This arrangement violates the polluter, depleter and degrader pays principles, which should apply but is sometimes required to achieve agreement. Those whose actions generate the need for management ought to pay the costs of that management - without capturing management - is a related principle.

The interests and needs of the future must be protected, following Brown-Weisss (1990), to preserve environmental quality, access and options. Gündling’s (1990) operationalizing of these principles translates them into the following obligations

i. the obligation to pursue a preventative (precautionary) policy regarding the environment
ii. the obligation to reduce environmental pollution to a minimum
iii. the obligation to develop technologies that do not harm the environment and
iv. strong sustainability - the principle of management that natural capital must be protected.

11.5 Compliance with international law and obligations

The rule of law requires compliance with international law and obligations.

11.6 Performance

‘Performance’ requires the application of a range of criteria and principles that apply to institutions, and to the environmental and resource management they undertake. Governance and management arrangements should be effective, transparent and diligently enforced.

Institutions should be representative, transparent, accountable and effective. Any resource use should be subject to scrutiny and assessment for environmental impact and information sufficiency. Institutions need to be capable of taking necessary action and imposing rules to provide incentives for compliance and innovation while allowing for sanctions and other controls. Effectiveness requires decision systems and processes sufficiently encompassing to achieve buy-in of states to participate and for them in turn to be committed to effectively controlling their nationals and vessels.

Areas should be closed to activities unless explicitly opened. The onus of proof should be on the proponent to realign incentives to reduce harm. This requires assessment of effects prior to deciding whether to allow an activity in a particular area. A precondition for opening some areas to activities should include setting aside protected areas as a hedge against mistakes and management failures, which can be expected. Marine reserves and other protected areas are required to guard against endemic management failures. A significant percentages of each ecotype, in the order of 20-40 percent should be required as no-take marine reserves. Pauly and Mclean (2003) recommend there be at least 20 percent but work by Lauk et al. (1998) suggests that, as a precautionary fisheries management measure, about 50 percent of a fishery area should be protected.

Movement from open-access fishing and other largely uncontrolled activities such as bioprospecting will require mutual assurance and the pressure of public opinion and enlightened states and probably some demonstration of the medium and longer term benefits.

Governance and management arrangements must be designed with the expectation that future changes will be made. Recognition of risks and provision for adjustment - whether to institutional rules or to actual levels of exploitation - are needed. Sensible and environmentally responsible investment must not be treated to capricious expropriation or change, but neither should it be immune from necessary change because the environment, or resources themselves have changed, or that our understandings of the changes have grown. Privatisation of rights should be avoided since these are virtually impossible to reverse.

The spatial dimension to management and ecosystem-based management are two of the major changes that ecosystem protection will require. However, this should not be construed as a recipe for spatial property rights, since property rights regimes do not ensure the protection of slow-growing biota or the consideration of non-market values. Environmental management measures require environmental assessment, impact assessment, requirements for demonstration of the ability to avoid adverse environmental effects and commitments to meeting certain standards and environmental performance targets.

Effectiveness of management of human activities and impacts in the deep sea require limits on the degree of extraction and their impacts, with reference points that have agreed rules such that they can be triggered when conditions require. Pauly and Maclean (2003) recommend a drastic reduction of fishing effort by three to four fold in most areas of the oceans. This will require forbearance and mutual assurance. Information and advice from all parties would likely strengthen decision making so long as default settings pending an agreement were precautionary so that there were no incentives to unnecessarily extend negotiations.

If access to a fishing area is closed unless opened by due process, then there will be a greater incentive for fishers and others to find means of fishing or other activities that have low impacts. For example, trawling and dredging are destructive to the sea floor and benthic communities. If such impacts are deemed unacceptable, then different methods such as using long lines with suitable controls on setting, bait types, times and areas could replace more damaging methods.

Independence from vested interests for management and environmental assessments is an important part of the principle of independence of management. Decision processes that allow for research and other expertise commissioned independently of extractive users or their governmental champions would be a guard against undue influence of managers on scientists to modify their advice. The separation of the payment for fisheries access or environmental management from commissioning of researchers, impact assessment and auditing is an important element of this. Such research should be funded by the industry through resource rentals but not commissioned by them. Peer reviews by other industry-independent experts and open public discussions with all interested parties would provide both insights and some check against possible industry capture of the management process.

Provision of standing for NGOs and others in the dispute resolution procedures of the agency or agencies with responsibility will allow civil society to take action in the event that nations of the responsible multilateral agencies are slow or reluctant to act. Processes to trigger pre-ordained or negotiated quick responses when adverse indicators of environmental or stock health showed should be available to non-governmental and governmental environmental agencies as a check against unresponsive agencies that hesitate on account of diplomatic paralysis or industry pressure.

Human activities and impacts have both immediate and cumulative effects. Management must be organized along scales of various sizes to match the spatial, ecological and physical effects of activities - but these management regimes need to recognize political and economic institutions too. Thus broad environmental management plans must match ecotype scales and those of the activities and their impacts.

12. SUMMARY OF PRINCIPLES AND CRITERIA

Using the Graham, Amos and Plumtre (2003) framework derived from that used by the UNDP, the principles and criteria and some of the measures these imply can be summarized as follows:

13. CONCLUSIONS

The survey of appropriate principles and criteria for governance and management of the deep sea is, as it must be, derived from principles already well established in international law and environmental and resource management practice. This survey marshalled these principles as a navigational aid for thinking about how the international community and national communities responsible for the management of human activities and impacts in and on the deep sea can tackle the large and sometimes "too hard" tasks that communities face. Important aspects of any management system for the deep sea should include principles and criteria relating to legitimacy and voice, accountability, direction, performance, fairness and equity. The argument that tackling the problems is too hard is no longer acceptable: if human activities in the deep sea are allowed, then there must be recognition of the complex environment impacts and economic incentives that prevail. Allowing activity requires control of activity. That in turn requires fair, effective and accessible institutions that have the confidence of both nations and civil society and the competence and will to take effective action.

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