Duke Law Scholarship Repository

Title

Beyond Area-Based Ocean Management

Author

Xiao Recio Blanco

Date of Award

2015

Document Type

Dissertation - Closed Access

Degree Name

Doctor of Juridical Science (S.J.D.)

Institution

Duke University School of Law

Abstract

The law of ocean management has developed rapidly in the last sixty years. Nations have expanded the body of laws that govern the management of ocean resources, with hundreds of new statutes giving rise to new fields of legal scholarship.

Despite their efforts, regulators have been unable to ensure the sustainable management of ocean resources. For example, regulatory decisions aimed at reducing the number of large fishing vessels have ended up subsidizing an increase in the number of small fishing boats. Laws enacted for the protection of the marine environment have failed to avoid an unprecedented environmental crisis: at the present time, about 85% of global fisheries are either fully exploited or overexploited, and approximately 3000 marine species are threatened with extinction.

A main cause of regulatory failure is that our knowledge of the ocean environment is still limited. Like players in a game of Battleship, regulators make decisions that affect the oceans based on very little information. This dissertation addresses the problems associated with developing effective legal responses in the face of incomplete information. The predicament, while contributing to the complexity of the law of ocean management, also makes it a fascinating area of study open to regulatory innovation.

Two complementary ideas underpin this dissertation: first, that some ocean management practices proposed by other social and natural sciences can be implemented by updating existing legal instruments. Second, it is the role of legal scholarship to incorporate concepts developed by other sciences –such as the need for Ecosystem-Based Marine Management or the importance of stakeholder participation and to transform those concepts into legal principles. Increases in information provided by the sciences, e.g., marine biology or public policy, are essential to avoid future regulatory failures.

This dissertation builds on the dialogue between ocean management law and other ocean studies by focusing on the development and implementation of area-based management. Area-based management theory argues that managing maritime areas in ways that prioritizes uses –including conservation- can ensure that management decisions are sensitive to ecological values and conservation principles. Area-based management’s main focus is to increase the level of information on the oceans and the variety of human uses, and it seeks to balance ecological and economic objectives. This theory has strong support from a broad range of stakeholders, from scholars and NGOs to government agencies and associations of users.

However, despite its advantages area-based ocean management has several limitations. It is a rather new concept, so there is not a unitary definition of the term. Experience with its implementation shows a variety of approaches, with different outcomes, and as a consequence, it is still unclear how area-based management can confront some of the most pressing problems of contemporary ocean resources management. This dissertation addresses the issue by selecting three specific challenges of ocean resources stewardship and proposing legal avenues to convert the theory of area-based management into regulation aimed at solving those problems.

The first article analyzes the problem of non-compliance that affects most fisheries regulations. Although most nations have already introduced sustainable management in their fisheries regulations, most fishers do not identify themselves with those principles and this leads to non-compliance. Using Latin America’s artisanal fisheries as a case study, this section proposes an alternative legal instrument for managing fishing resources that combines area-based management rules, the distribution of property rights, and the implementation of self-regulation measures.

The second article addresses the mismatch between national and ecological boundaries in marine areas, and proposes an international legal instrument for managing ocean resources in international boundary. The analysis identifies the shortcomings area-based management faces to ensure uniform and consistent regulation across boundaries, and suggests the use of Joint Development Agreements (JDAs) to create legally-binding area-based rules for managing marine boundary areas. As a legal instrument, JDAs have been overlooked by most advocates of area-based management, notwithstanding its success in integrating transboundary regulations and enforceable rules for interconnected marine spaces.

The final article acknowledges the challenge of incorporating adaptive management into ocean regulation. It explores the role of area-based management as a legal means to promote technological research and development, providing legal certainty to users while ensuring effective marine life protection. It acknowledges the potential of ocean renewable energy to increase access to electricity in developing countries and proposes the adoption of area-based management policy to streamline research and deployment.

Citation

Recio Blanco, Xiao, Beyond Area-Based Ocean Management (2015) (unpublished S.J.D. dissertation, Duke University School of Law)