Abstract

The deep sea, defined as those parts of the ocean below 200 meters, is increasingly the site of intensive resource exploitation for fish, minerals, and other uses, yet little thought has been given to effective governance by either scholars or policy-makers. This article provides an overview of existing deep-sea governance arrangements, as well as a description of the barriers to developing a more effective institutional framework, with particular focus on the unique status of the deep sea as part of the common heritage of mankind, the logistical challenges inherent in monitoring resource exploitation in the deep sea, and the lack of available scientific data. We call for greater engagement by political scientists and environmental studies scholars in addressing these challenges and protecting one of Earth’s last true frontiers.

Governance of the marine environment has long been recognized by political scientists as an important case of scalar mismatch, in which the fragmentation of the global ocean into a variety of areas under national jurisdiction, as well as a large area beyond national jurisdiction, constitutes a considerable collective action problem for environmental conservation and protection (Haas 1990; Skjaerseth 2000; VanDeveer 2002). This challenge is especially marked in one particular part of the global ocean—namely the deep sea, consisting of waters below a typical continental shelf break, at depths of greater than 200 meters. In recent decades, a combination of technological improvements and certain provisions of the United Nations Convention on the Law of the Sea (UNCLOS) have combined to open the deep sea to commercial exploitation of fish, mineral resources, and other uses, creating a practical imperative to better understand how the deep sea is governed—and the institutional barriers that inhibit its sustainable development. But governance of the deep sea also addresses a foundational conceptual question for political scientists: How can effective governance arrangements be developed for a vast, mostly unexplored area that is part under national jurisdiction and part global commons, governed under fragmented institutions with little coordination?

In this forum article, we aim to put the deep sea, and the conceptual questions it entails, on the map for political scientists and environmental studies scholars. To do so, we first provide an overview of existing deep-sea governance arrangements, and then highlight both the imperatives and challenges entailed in developing a more robust set of institutions. Finally, we sketch a way forward for expanded scholarly engagement with questions of deep-sea governance. In raising the issues entailed in deep-sea governance, our central concern is the question of institutional fragmentation that has been a frequent subject for Global Environmental Politics (Zelli and van Asselt 2013). We suggest that the deep sea highlights the limitations of a sectoral- and media-specific approach to global environmental governance. While we acknowledge that governance arrangements will always be fragmented, creating single institutional arrangements for individual domains is likely to improve outcomes. This is particularly true where, as in the case of the deep sea, pervasive scientific uncertainty makes it difficult to construct decision-making rules concerning resource use.

Indeed, the defining characteristic of the deep sea in comparison to other environmental domains is that it supports unique ecosystems that remain poorly understood (Priede et al. 2011; Van Dover et al. 2012; Watson and Morato 2013). The conflict between economic benefit and environmental degradation common to other marine resources is thus especially poignant in the case of the deep sea (DeSombre and Barkin 2002; Havice and Campling 2010). At the same time, existing governance regimes for the deep sea are both functionally and spatially bifurcated. An international organization, the International Seabed Authority, possesses jurisdiction over most of the world’s deep-sea areas, but its remit extends only to mineral resources. Other economic activities, including fishing and shipping, are covered by a patchwork of sector-specific arrangements, while deep-sea ecosystems are essentially unprotected under current agreements, except in waters under the jurisdiction of signatories to the Convention on Biological Diversity (Barbier et al. 2014; Mengerink et al. 2014). This discrepancy suggests the second bifurcation of extant institutional arrangements—namely between those parts of the deep sea that lie within exclusive economic zones (EEZs) subject to regulation by individual countries, and those within the area beyond national jurisdiction (ABNJ).

This institutional bifurcation also provides an opportunity for political scientists to compare the merits of sector-specific governance under individual national versus multilateral jurisdiction. Beyond these conceptual merits, the need for political scientists to pay greater attention to the distinctive governance challenges of the deep sea is pressing for at least three reasons. First, although deep-sea ecosystems are poorly understood, there is near-consensus that deep-sea fisheries are overexploited and at risk of destruction from invasive fishing practices such as bottom-trawling (Morato et al. 2006; Norse et al. 2012; Puig et al. 2012). Second, new deep-sea resource uses such as bio-prospecting are emerging that are entirely unaddressed by extant governance regimes, and nonresource uses of the deep sea, such as trans-oceanic cabling, are also expanding (Global Ocean Commission 2013; Ruth 2006). Third, the prospect of conflict between resource uses and users is increasing (Merrie et al. 2014). Given these developments, it is important to understand and address the issues involved in the complex institutional patchwork that currently covers the deep sea.

Deep-Sea Fisheries Governance: A Paucity of Data and Institutions

Deep-sea fishing occurs both within EEZs, in which individual signatory states to UNCLOS have responsibility for protecting the marine environment, and on the high seas, where only weak international guidelines apply. The only global standards that apply to deep sea fishing are nonbinding guidelines issued by the United Nations Food and Agriculture Organization (UNFAO), which encourage states to protect vulnerable marine ecosystems (VMEs) such as deep water coral, and which were adopted by the UN General Assembly (UNGA) in 2006 (US Department of State 2008). However, these guidelines have been adopted by only a few coastal and flag states (Rogers and Gianni 2010). Deep-sea fishing in both EEZs and the ABNJ is also regulated by regional fisheries management organizations (RFMOs), which are self-enforcing voluntary international organizations responsible for both individual fish species and geographic regions of the ocean. However, RFMOs vary widely in scope, authority, and participation by fishing nations.

Some RFMOs have been proactive in formulating rules related to deep-sea fisheries exploitation, but the scope of ambition of these measures is uneven, as is their implementation. According to a recent report, five RFMOs possess the legal authority to regulate deep-sea fishing, but only one, the Commission for the Conservation of Antarctic Marine Living Resources, has implemented robust provisions to enforce these restrictions, including catch limits and reporting requirements for fishing vessels. The Northeast Atlantic Fisheries Commission, for example, imposed catch limits on bottom fisheries in 2002, but these limits were reportedly set so high as to exceed actual annual fish landings. Perhaps most notably, RFMOs do not possess authority to regulate deep-sea fisheries in either the Pacific or Indian Oceans (UN Food and Agriculture Organization 2013).

Indeed, regulating deep-sea fishing has proven to be extremely difficult, even where a single political entity exercises jurisdiction. These challenges are perhaps best illustrated by efforts to regulate deep-sea fishing in the European Union (EU). In 2002, the EU adopted a deep-sea fishing regulation requiring all EU-member-state-flagged fishing vessels to obtain a permit to catch deep-sea species and keep records of fish hauls, mandating that deep-sea fish be landed only at certain designated ports and that deep-sea fishing vessels carry a scientific observer (European Union 2002). The EU also established catch limits for some species, and specific areas determined to support deep-water corals have been closed to fishing (European Parliamentary Research Service 2013).

In concert, these efforts constitute perhaps the single most developed framework for deep-sea fisheries management. However, measures considered by most scientists to be necessary to protect deep-sea ecosystems, including a ban on bottom trawling and gillnet fishing, have not been adopted, as a result of opposition from fishers. Indeed, the fisheries sector successfully argued that sufficient data did not exist to warrant their adoption, and the Commission’s final regulation merely bans bottom trawling in VME areas. At the same time, fragmentation among environmental organizations and the European Commission, both of which supported a full ban, prevented them from overcoming fishers’ opposition (Deep Sea Conservation Coalition 2013; Sectoral Social Dialogue Committee on Sea Fisheries 2013; Wisdorff 2013). The case of deep-sea fishing regulation in the EU thus suggests that sectoral rather than institutional fragmentation shaped poor environmental outcomes, particularly given the pervasive uncertainty concerning deep-sea ecosystems.

Deep-Sea Minerals Governance: The Common Heritage of Mankind

In contrast to its sparse provisions related to deep-sea fisheries, UNCLOS establishes a single sectoral institution to manage deep-sea mineral resources. Indeed, a central provision of UNCLOS was to designate the seabed beyond the continental shelf as part of the “common heritage of mankind,” and the convention established an autonomous international organization known as the International Seabed Authority (ISA) to grant concessions for mining activities in those parts of the seabed that fall in areas beyond national jurisdiction. Since 2001, the ISA has to date granted a total of seventeen mineral exploration contracts in several regions, notably in the Pacific and Indian Oceans (International Seabed Authority 2013a). Revenue from such activities is meant to benefit all countries, especially the least-developed. Because commercial deep-sea mining has barely begun, these provisions have yet to be adopted in meaningful form. However, their promise is considerable. The ISA levies a fee on all parties applying to extract minerals in deep-sea areas under its jurisdiction, to fund its operations, which can include, for example, assurance bonds for VME conservation (International Seabed Authority 2013b).

Moreover, despite its focus on minerals, the ISA has developed a variety of principles and regulations to protect deep-sea ecosystems. In major prospecting zones, the ISA has developed a spatial risk assessment model and applied it to set aside designated conservation areas on the seabed. In addition, the ISA formulated an Environmental Management Plan for the Clarion-Clipperton fracture zone in the Pacific Ocean, which recognizes potential mining environmental impacts on benthic ecosystems and proposes mitigation measures (International Seabed Authority 2011). Although still at a preliminary stage, this framework for governing the exploitation of deep-sea minerals compares favorably with arrangements for deep-sea fisheries in several respects. First, the governance framework precedes commercial exploitation, whereas that emerging for fisheries lags intensive bottom fishing by several decades. Second, a single entity with clear authority over the resource formulates regulations, in contrast to the patchwork of RFMOs. Third, the ISA possesses a concrete mechanism to convene all relevant stakeholders in deep-sea minerals exploitation. The ISA’s council, an executive body elected by the state parties to UNCLOS, has provision to include up to eighteen nongovernmental representatives, representing no fewer than half the total number of seats. The council also has the power to order an immediate cessation of minerals exploitation if an environmental harm develops (International Seabed Authority 2013a).

Nonetheless, the extant management framework for deep-sea minerals possesses several lingering deficiencies. First, the ISA is frequently criticized for failing to prioritize deep-sea species protection and for providing limited voice to civil society, such as environmental groups (Levin 2014). Second, it does not always fully consider relationships with other deep-sea resource uses. The ISA’s Environmental Management Plan, for instance, does not specifically consider the effects of minerals extraction on fisheries, nor does it provide much guidance on resolving potential resource use conflicts. Third, monitoring, compliance, and enforcement typically bedevil self-enforcing, voluntary international environmental agreements (IEAs). Fourth and finally, almost all deep-sea minerals extraction currently takes place within EEZs, in the form of oil and gas resource exploitation, rather than on the seabed under ISA jurisdiction. Individual countries are responsible under UNCLOS for ensuring that such exploitation does not damage the marine environment within their EEZs, but much like the case of deep-sea fishing, in practice there are few enforceable provisions or common international standards to ensure this.

Given these challenges, several proposals have been put forward to improve deep-sea minerals governance, paralleling similar debate with respect to deep-sea fisheries. These measures include, among other things, better dialogue between deep-sea researchers and resource users (Collins et al. 2013), promulgation of preliminary regulations and environmental impact assessment guidelines (Halfar and Fujita 2002), and designating a network of special reserves centered around deep-sea hydrothermal vent communities (Van Dover et al. 2014). Much like the case of deep-sea fisheries, these proposals raise a number of important questions concerning how best to design institutions to represent relevant stakeholders, accommodate a pervasive lack of data to support species protection, and ensure coordination among RFMOs, the Convention on Biological Diversity, the International Maritime Organization, and other bodies. However, the disparity between the patchwork approach to deep-sea fisheries governance, represented by the RFMOs, and the institutional locus to deep-sea minerals governance, in the form of the ISA, presents an opportunity to test long-standing questions surrounding the fragmentation of environmental governance, in light of current pervasive scientific uncertainty.

A Way Forward

The fragmentation of marine governance inhibits responses to a range of environmental issues, including plastics pollution and overfishing. But what distinguishes the case of the deep sea is the bifurcation of governance arrangements into a relatively well-developed and farsighted regime for managing minerals exploitation, and a weak, inconsistent patchwork for managing deep-sea fishers and biodiversity, both of which exist under conditions of pervasive uncertainty. In many ways, the deep sea therefore presents an opportunity to apply the concept of resource nexus governance—namely the idea of jointly managing separate resource types, including food, water, and energy, to capture the complex trade-offs between them (Andrews-Speed et al. 2012; Bleischwitz et al. 2012). Specifically, the existence of two very different governance regimes, one conceived de novo under UNCLOS, the other reflecting an organic evolution of non-purpose-specific arrangements, presents political scientists with the opportunity to apply predictions regarding the joint management of natural resources. The emergence of resource user conflict, meanwhile, offers an opportunity to study the emergence of conflict processes unencumbered by the confounding variables that usually complicate such attempts.

We suggest two broad directions for future engagement between scholars and policy-makers concerning the deep sea. First, the expanding literature on the design of self-enforcing, voluntary IEAs can be rigorously applied to the case of the deep sea (Barrett 2003; Okereke et al. 2009). We have suggested that the deep sea demonstrates the value of integrating stakeholders across environmental domains, rather than jurisdictions per se, but challenge other scholars to support or question our assertion, particularly given the lingering questions surrounding the IEA framework for deep-sea minerals governance, in the form of UNCLOS and the ISA. Second, we must pay serious attention to how the precautionary principle can be institutionalized in domains where, as in the deep sea, uncertainty is pervasive. Indeed, the deep sea’s current challenges call for an urgent, concerted effort by political scientists to better govern perhaps the Earth’s last true frontier.

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Author notes

*

The views expressed in this article are those of the authors and not necessarily of the US government.