Blog by Karina Krul, Junior Associate

The law of the sea essentially divides the ocean into marine spaces either under national jurisdiction or beyond it.[1] Historically, marine spaces beyond national jurisdiction have fallen outside any governing structure; instead remaining a global commons governed under the ‘freedom of the seas,’[2] a term going back to the 1800s when the sea and its resources were thought to be limitless.[3] However, it is becoming increasingly clear that this is not sufficient to address climate change, marine biodiversity loss, and conflicting stakeholder opinions.[4] As a result, we are seeing a shift from the law of the divided ocean, governed by the principles of sovereignty and freedom, to the law of the common ocean, taking a more holistic, integrated, and collaborative approach.[5] As this unfolds, there are several lessons the law of the sea may take from an entirely separate regime: the Regional Seas Programme.

The Regional Seas Programme governs 18 different regional marine spaces and serves primarily as a coordinating mechanism for countries sharing a common body of water and relevant stakeholders.[6] Each body of water is governed by its own conventions and action plans that “provide inter-governmental frameworks to address the degradation of the oceans and seas.”[7] While these two regimes govern two separate and distinct marine environments, there are overlapping themes and similarities. And as the law of the sea transitions to be more guided by the law of the common ocean, there are several lessons it can learn from the Regional Seas Programme:

1. Collaboration between diverse stakeholders. The Regional Seas Programme brings together “stakeholders including governments, scientific communities and civil societies,” in a concrete and meaningful way.[8] Ocean governance “can only work well” if it achieves the same.[9]
2. Management in smaller geographic areas. One obvious obstacle to governing the sea is that it is simply too large to govern. In contrast, under the Regional Seas Programme marine environments are naturally divided into regional water bodies, each governed independently under a common goal,[10] allowing for governance by smaller groups. Determining some way to divide the high seas would lead to the same efficient collaboration and decision-making.[11]
3. Specifically-tailored action plans. The action plans for each regional sea are “based on the region’s unique environmental concerns and challenges, the socioeconomic and political situation, and priorities, needs and capacities of participating countries.”[12] There is not a one-size-fits-all solution or governing structure for the entire high seas; diving the seas in a logical way would allow for this same diversity and flexibility.

While there are obvious obstacles to transposing these lessons from regional water bodies to the non-delineated and vast seas, they should be seriously considered as we re-think ocean management as we know it.

[1] Yoshifumi Tanaka, The International Law of the Sea, Cambridge Univ. Press, 10 (4th ed. 2023).

[2] Jon M. Van Dyke, International Governance and Stewardship of the High Seas and Its Resources, in Freedom for the Seas in the 21st Century 13, 14 (Jon M. Van Dyke, Durwood Zaelke, & Grant Hewison eds., 1993).

[3] Id.

[4] Marine Genetic Resources of Areas Beyond National Jurisdiction: Background Information on Ocean Governance and the BBNJ Treaty, Harvard Univ., https://bbnj-mgr.fas.harvard.edu/background-information-ocean-gevernance (last visited Jan. 19, 2024).

[5] Yoshifumi Tanaka, supra note 1, at 7.

[6] Regional Seas Programme, U.N. Env’t Programme, https://www.unep.org/explore-topics/oceans-seas/what-we-do/regional-seas-programme, (last visited Jan. 19, 2024)

[7] Id.

[8] Id.

[9] Politics and the oceans, World Ocean Review, https://worldoceanreview.com/en/wor-4/politics-and-the-oceans/on-the-difficulty-of-governing-the-sea/ (last visited Jan. 19, 2024)

[10] Our Work: Regional Seas Programme, U.N. Env’t Program, https://www.unep.org/explore-topics/oceans-seas/what-we-do/working-regional-seas/our-work, (last visited Jan. 19, 2024)

[11] See A Constitution for the Oceans, remarks by Tommy T.B. Koh, of Singapore (available at https://www.un.org/depts/los/convention_agreements/texts/koh_english.pdf) (stating “it is obvious that no meaningful negotiations can take place in a forum consisting of 160 delegations.”)

[12] Leila Mead, The “Crown Jewels” of Environmental Diplomacy: Assessing the UNEP Regional Seas Programme, Int’l Inst. for Sustainable Dev. (Apr. 27, 2021), https://www.iisd.org/articles/deep-dive/crown-jewels-environmental-diplomacy-assessing-unep-regional-seas-programme