Is Indian ready for blue economy?

The United Nations Convention on Law of the Sea (UNCLOS), 1982, is one of the primary instruments for ocean governance.  It is a comprehensive set of rules that covers a wide range of issues from territorial rights of nations to oceanic resources. Despite its comprehensive nature, one of the key areas where there has been a growing realisation is the need for regulation for the protection of marine biological resources in Areas Beyond National Jurisdiction (ABNJ). 

Under the UNCLOS framework, ABNJ are governed under concepts of “open access, common pool” and “common heritage”. However, there is a need to recognise high seas governance as an issue of critical importance since, in addition to the economic and socio-economic value arising from ecosystem services, it will address other correlated themes such as Borders Beyond National Jurisdiction (BBNJ), access to marine genetic resources, Intellectual Property Rights (IPR) and sharing of benefits arising from use. 

What sets apart the ABNJ process is the high levels of participation from civil society organisations. Initial discussions and research in this area were led by civil society organisations and there have been several concerted attempts at illustrating possible governance methods such as the Seamounts Project in the South Indian Ocean, which was started as early as 2009. It is also significant that the Southern Indian Ocean region has an instance of one of the largest conservation efforts from the industry when the Southern Indian Ocean Deepsea Fishers Association (SIODFA), in 2006, set aside 11 no-go areas and complemented this with several additional commitments that would aid research and thereby help the conservation cause. 

On a regional level, there are Regional Seas Conventions established under UNEP and there are Regional Fisheries Management Organisations (RFMOs) that have been established under the FAO constitution or independently by States. Of the existing RFMOs, while some have the powers to enforce regulations in their region, the others are restricted to regulations of specific species such as the tuna. The UNFSA looks at RFMOs as one of the main implementing agencies for effective management and conservation.

One of the earliest attempts was in 2003 at the World Parks Congress in South Africa, the outcome of which was the Ten-Year High Seas Marine Protected Area (HSMPA) Strategy. The objective of the Strategy was to provide a framework to establish a network of Marine Protected Areas (MPAs) such that it is representative of an ecosystems based approach to the management of High Seas. The Strategy identified 7 core components which included the need to cooperate in building a global framework that builds on existing provisions and the need to encourage the application of instruments such as the UNFSA to the High Seas. In 2006-07, Austria on behalf of the EU proposed a new UNCLOS implementation agreement which was backed by Cuba. In response, while countries like Australia recommended that more time was needed to consider such a proposal, Japan and Iceland questioned the need to introduce new agreements. Many countries held the view that the existing instruments were sufficient to address this issue. In short, this was the much discussed idea of whether the problem was in “implementation gaps” or in “regulatory gaps”, and this continues to be debated till date. A landmark was achieved in 2011 when the package of issues to be discussed under the new implementing agreement under UNCLOS were finalised and these include, “Marine genetic resources, including questions on benefit-sharing; measures such as area-based management tools, including marine protected areas and environmental impact assessments; and capacity building and the transfer of marine technology.” 

In 2013, the UNGA passed Resolution 68/70, which called for the Secretary-General to convene three meetings of the Ad Hoc Open-ended Informal Working Group over 2014 15 “to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction”. The third and final meeting of the Working Group was held on January 2015 and the final list of recommendations was submitted consequently. The major takeaway from the final recommendation document is its emphasis on the need to create an internationally binding legal agreement for conservation of BBNJ. 

The international community seems to have moved towards a consensus on the existence of a regulatory gap and seeks to bridge this through a new internationally binding agreement. Negotiations have centred around achieving a greater clarity towards what exactly the scope of such an agreement would be. For instance, would it include fisheries or would that be left under the UNFSA? Another problematic area relates to genetic resources and IPR since these are tied to the Access and Benefit Sharing (ABS) concept under the Nagoya Protocol, which once again, is yet to be ratified by many countries. Finally we come to the problem of institutions. If one were to look at the range of options put forth by all countries, it ranges from adhering to the freedom of high seas principles (which would imply minimum regulation), the middle ground of supporting a new agreement to establishing an institution to regulate, monitor and impose sanctions if necessary. If a new agreement were to be finalised by 2018, would it require the establishment of an authority? If yes, what form would that authority take and how powerful could it be considering that this directly deals with economic rights of States. 

India has a major stake in improving the norms and rules of global ocean governance especially when the Indian Ocean has been a site of multiple bilateral and international engagements ranging from arbitrations such as the Bangladesh territorial dispute, treaties based disputes such as the Italian marine’s cases and the frequent fishermen arrests that impact domestic politics. The Exclusive Economic Zone (EEZ) of India extends to over 2.00 million km2 with the significant advantage of having the islands of Andaman and Nicobar and Lakshadweep that extend the area under EEZ. In addition to this, India, in 2009, made a partial submission to the United Nations Commission on the Limits of the Continental Shelf (CLCS) to extend the limits of the continental shelf to beyond 200 nautical miles on the basis of evidence gathered from bathymetric mapping. The status of the partial submission is currently in limbo due to objections raised by Myanmar, Bangladesh and Oman. 

In the particular issue of ABNJ, India’s interventions from the first Working Group meeting in 2006 to the final meeting in 2015 were mainly focussed on three core points, namely, the need for a legal regime for marine genetic resources; a balance between freedom of High Seas and area based conservation measures and the need to ensure ABS rights and to focus on IPR and technology transfer comprehensively. 

In the recently concluded first session of the Preparatory Committee, India has once again recommended finding an effective balance between high seas freedom and the binding agreement and encouraging bilateral and multilateral cooperation to operationalise UNCLOS technology-transfer obligations. A major part of the discussions have revolved around the principles of Environmental Impact Assessments (EIAs) and Strategic Ecological Assessments (SEAs) that the agreement would contain. In this regard, India has recommended that SEA principles must be ocean-specific, that EIA guidelines be defined on scientific evidence and existing instruments and that EIA activities must be monitored and reported to a scientific or technical body established by the agreement. 

With the concept of Blue Economy gaining traction worldwide, including “Life Below Water” India must look to assume a global leadership role in developing policies for Blue Economy associated concepts. This is something that India has already initiated on a regional organisation level with the Indian Ocean Rim Association. However, a cursory glance at all the discussions and literature reveals a disproportionately large focus on infrastructure, mining and energy. 

India needs to persist with its emphasis on marine genetic resources, ABS and legal safeguards for bio-prospecting in line with its national biodiversity conservation principles as outlined by the Biodiversity Act, 2002.