The concept of ocean governance has multiple layers and deals with many actors and players who have a role to play, private or public, international, national and regional who have to co-operate through formal and informal arrangements. Also, the scope of ocean governance is diverse, as it cuts across different sectors, ranging from maritime transport, fisheries and the exploitation of marine resources to marine environmental protection, blue energy or underwater cultural heritage.
With the ocean being an extremely sensitive ecosystem and being a source of food and livelihood for many across Africa, the clarion call to safeguard and preserve this precious resource cannot be overemphasised. One way to ensure this is by having a framework – institutional and legal – put in place to ensure a sustainable model. Notwithstanding, there are myriad issues needed to be addressed to guarantee its effective implementation. With this in mind, it is stressed further that a governance structure is established within Africa to ensure that the oceans are protected, and a balance between its protection and use be found.
There has been a lot of noise about ocean governance both at national, regional and international level (by global institutions) who have clamoured for the development of an ocean governance framework. In fact, at a national level, several nations have responded to this call, and have developed national ocean policies – Canada, Australia, Peru etc. Additionally, at a regional level, the European Union has taken steps to address issues relating to ocean governance, and international organizations such as the United Nations has been the trailblazer with the inception of UNCLOS 1982.
African Ocean Governance – Institutional and Legal imperatives
Ocean governance appears to be a nebulous concept, and one concept which appears to be synonymous to this concept is sustainability. In simple terms, ocean governance may be described as the means via which the ocean is governed or regulated as the case may be. Without a uniform description of this concept, an attempt to describe it was done by The Club of Rome; an International Non-Governmental Organization (NGO) founded in 1968, and described it thus:
“the means by which ocean affairs are governed by governments, local communities, industries, non-governmental organizations, other stakeholders, through national and international laws, policies, customs, traditions, culture, and related institutions and processes.”
Furthermore, it has been described as the integrated conduct of the policy, actions, and affairs regarding the world’s oceans to protect ocean environment, sustainable use of coastal and marine resources as well as to conserve its biodiversity. It has also been sub-divided into three broad elements, namely:
For the purpose of this article, the first two elements would be focused on, as international law and institutions serve as the main framework for international co-operation and synergy between players in the international community.
Therefore, it is imperative that for the actualisation and sustenance of a viable Africa ocean governance framework, the establishment of both an institutional and legal framework is important, and is suggested as the model which should be adopted for African Ocean Governance.
The legal framework consists of international and regional conventions and soft laws such as commitments and targets agreed upon by nations to be implemented as part of their legislation and national plans of action for managing coastal and marine affairs and regulates the activities of states. Furthermore, the legal framework underscores the importance of having in place regulations capable of being a legal compass in ensuring that lip service is not paid to in ocean governance in Africa. Additionally, the legal framework takes the form of instruments and international conventions such as the United Nations Convention on the Law of the Sea (UNCLOS) (which lays down a set of rules which has described the limit of maritime zones under the sovereignty of coastal states. It goes further to address the issue relating to the jurisdiction between states in the separate maritime zones) and its two implementing agreements – the Deep-Sea Mining Agreement and the Fish Stocks Agreement, UNEP: Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA) and Regional Seas Conventions, The 2030 Agenda on Sustainable Development which include SDG 14 (“Conserve and sustainably use oceans, seas and marine resources for sustainable development”) etc.
The institutional framework consists of the organisations and mechanisms that are authorised to engage in ocean management and how they coordinate and cooperate to deliver on their mandates. Additionally, institutional framework plays an essential role due to the importance of having institutions responsible for managing the oceans and resources at various levels – national, regional and global. Furthermore, UNCLOS 1982 also requires states to co-operate on numerous issues such as the management of certain fish stock, protection of the marine environment and for states bordering enclosed and semi-enclosed seas, particularly national, regional and global organisations.
Why is an African Ocean Governance framework required?
After factoring both the legal and institutional framework which have been highlighted above; it is evident from the current trends which have occurred across several continents that Africa is ripe for its own ocean governance framework. This is an important tool for connecting to the world and ensuring that it is not left behind, and must work towards the development of its own ocean governance framework. Consequently, nations should also be mandated to adopt this ocean governance framework as part of its national ocean policies if none currently exists, and in the event that any exist, national ocean policies should be aligned to the ocean governance framework.
Furthermore, the United Nations Secretary-General on “Oceans and the law of the sea” posited that:
‘‘[T]he future of the oceans depends on enhanced scientific research into ocean processes, effective implementation of the international instruments that regulate various oceans activities and a comprehensive and integrated approach to ocean management.’’
Flowing from the foregoing, and taking cognisance of the legal and institutional framework (LOSC Convention), the theoretical concepts and the issues and current trends in the management of ocean affairs, it is clear that African states must work towards the development of an ocean governance framework and the adoption of integrated national ocean policies an integrated ocean management structures. This is the means to ensure the seas are adequately managed and is an important factor for the future of the oceans in Africa.
Many solutions have been identified towards an effective and efficient framework for African ocean governance, and some of these are:
Ocean governance cannot work in isolation. Its institutional framework requires communication with stakeholders. Communication must be established by creating awareness in the public about the oceans in all sectors and levels of society. Also, technology can go a long way in disseminating information through the internet, and other outlets such as social media which has to be exploited.
Governance tools are immensely important in Africa’s ocean governance, and these tools such as Marine Protected Areas and Marine Spatial Planning have been identified in order to utilise ocean governance in Africa.
Marine Spatial Planning
Marine spatial planning (MSP) requires extensive integration and collaboration between and among government agencies and non-governmental individuals and organizations. Such collaboration has also been identified as critical to the broader goal of achieving regional ocean governance. For example, many European Union countries have started implementing Maritime Spatial Planning, and this is based on the importance of the EU’s Green Paper on Future Maritime Policy.
Marine Protected Areas
The need for effective governance of the marine protected areas (MPAs) is important because they are expected to play a more prominent role in the conservation of marine resources and fisheries management. Therefore, there is a need to develop a good network of Marine Protected Areas as it has become a viable tool in marine conservation.
The current structure of ocean governance in Africa has no mechanism for dispute resolution, and the importance of a tool for dispute resolution cannot be stressed because of the importance of law in the process of governance and accomplishing same. Furthermore, the World Bank also considers judicial and legal systems to be essential to governance. According to it, good governance involves inter alia –
“… an independent judicial system and legal framework to enforce contracts … [and] respect for the law … at all levels of the government …”.
Therefore, because international instruments and conventions are capable of being executed, and have the force of law through either judicial and non-judicial means of dispute resolution, it is apparent why an ocean governance structure is put in place to resolve disputes amongst nations at a regional level.
The ability to co-operate across institutional lines has been seen as a means of fostering ocean governance. This has been the case in Europe as members of the European Union have able to co-operate at the regional level, and this can be emulated by African nations as they must cooperate with other nations in the region and globally in developing and implementing a national ocean policy, including through new or existing frameworks, and launching Ocean Partnerships for ocean management.
At a regional level, there are several areas where African countries can co-operate to ensure ocean governance such as:
In ensuring an effective and efficient framework, policy-makers need to have an understanding of ocean governance and management. Therefore, the onus should be on the leadership, as they are responsible for shaping policies regarding governance. Capacity building should have an integrated ocean policy which requires the apex level of political direction and oversight to guarantee its success.
Moreover, capacity building has a political tone. Therefore, to ensure that it is driven to a logical conclusion, its success is largely dependent on a proper governmental structure with a ministerial head. Also, the training and capacity building of officials involved in African Ocean Governance with regards to applicable international law and legislation both at regional and sub-regional levels requires a proper structure.
There appears to be a chasm in the level of implementation of international treaties in comparison to the spate of ratification. Africa is a huge culprit as this has caused a gulf between regulation and governance that exists in ocean governance. In Africa, the cause of the governance gap is as a result of several factors which will be discussed below.
There are several issues which plague ocean governance in Africa, and these have been enumerated below. Nevertheless, some recommendations have also been put forward as a means of tackling these issues.
i. Multiplicity of Actors
There are many actors involved: states, secretariats, specialised treaty bodies, non-governmental organisations and community-based organisations. A large number of treaties and policy bodies relating to African oceans results in the proliferation of institutions administering and enforcing these international legal rules and policies. Accordingly, this results in a multitude of secretariats established for all the agreements, which creates a danger for policy and legal incoherence.
Within this, several governance gaps can also arise such as:
ii. Multiple Silos of Governance
Whilst some legal instruments, such as UNCLOS, and institutions such as the UN Environment, have a remit that relates to overall African regional ocean governance, most of the governance initiatives are divided up into sub-disciplines, such as the management of fisheries or the mitigation and adaptation to climate change, with each individual regime operating within its own legal and institutional environment, with distinct objectives and issues to address.
With multiple silos of governance, gaps can also exist such as:
iii. Overlapping Treaties and Activities Under Treaties
Fragmentation of primary treaty laws arises when several treaties exist in the same geographical expanse, creating multiple sets of international regulations that may apply to a given situation. This is a particular danger in the field of ocean governance, because of the number of treaties that apply in the area. For example, the Convention for the Conservation of Southern Bluefin Tuna, created the Commission for the Conservation of Southern Bluefin Tuna (CCSBT). The Convention does not expressly relate to a geographical area, but rather applies to southern Bluefin tuna conservation in all oceans. This means that the remit of the CCSBT overlaps with other regional fisheries management organisations including the International Commission for the Conservation of Atlantic Tunas (ICCAT) and the Indian Ocean Tuna Commission (IOTC).
The implementation of activities mandated by policies and laws have financial implications. For example, a new policy may be introduced because a new environmental problem has arisen, because recently discovered health concerns have arisen, or because users or polluters of an ecosystem have a need for particular services. The policy process creates a demand for action, which in turn requires financing, which in most cases is donor-dependent.
Some of the governance gaps which exist are:
v. The Ocean Economy and Security
The blue economy can play a major role in Africa’s structural transformation, sustainable economic progress, and social development. The largest sectors of the current African aquatic and ocean-based economy are fisheries, aquaculture, tourism, transport, ports, coast mining, and energy. The opportunities around Africa’s blue economy are enormous with significant potential to create jobs and improve livelihoods. However, what is often missing in the debate are issues of governance and security.
Within the blue economy, and how it pertains to Africa, there are several governance gaps such as:
Some of the recommendations which have been put forward are:
vi. Coverage of Marine Protected Areas
The Regional Seas Conventions and the LME system provide frameworks for the designation of marine protected areas and other area-based management tools. However, the coverage is very narrow and hence, inadequate. According to the Secretariat to the Convention on Biological Diversity, the world’s oceans are seriously under-protected, with approximately 0.8% of the oceans and 6% of the territorial seas being within protected areas systems. The Aichi Targets (also SDG 14.5) stipulate that member countries must establish at least 10% of marine and coastal areas as protected by 2020.
The legal gap denotes the want for an existing institution or a legal mandate responsible for the regulation of an issue or matters or attaining a specific goal where there are no existing regulatory barriers of issues.
In their strictest sense, regulatory gaps refer to matters that are completely unregulated. As far as substantive rules are concerned there are several important gaps. More recent environmental concerns such as biodiversity conservation, cumulative impacts from multiple stressors on the marine environment, ocean acidification and marine litter keep emerging as are new uses of the oceans including those with climate mitigation potential (geoengineering and ocean fertilization). Ocean noise and the physical impacts of vessels on marine cetaceans and other large animals are additional rising concerns. In the absence of a regulatory framework for addressing emerging concerns, the substantive gaps are likely to grow over time.
Regulatory gaps may also arise where regulation as such is adequate, but rules are not in force or only apply to a very limited number of states. For example, some important IMO conventions, notably the 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments, have not yet entered into force.
A regulatory gap may arise even where the rules exist and apply, but are not followed in practice. The reasons for such a lack of compliance may lie both in the rules themselves (e.g. if they lack effective enforcement provisions) or in the way they are implemented by states and individual operators. There are numerous examples of non-implementation and enforcement failures in the subject area of this study. For example, the absence of effective enforcement mechanisms for illegal fishing and other violations on the high seas is another key challenge that needs to be overcome if the existing regulatory system is to be made more efficient.
Regulatory gaps may refer to broader governance matters, such as the lack of regional management organizations for specific or multispecies fisheries for certain geographic areas or regional seas conventions or other bodies. No institution is identified as being responsible for dealing with new or unregulated matters in the oceans. A strict adherence to sector-based mandates means, on the one hand, that multi-functional and integrated protection initiatives are currently excessively heavy to administer. On the other hand, it means that it is difficult to find an institutional ‘home’ for new regulatory issues that arise with new scientific and technological developments or to address the cumulative impact of multiple environmental pressures.
A final category of gaps is the lack, or inconsistent application, of many modern governance principles in sectoral management in. A broad range of commitments have been made by states, both under conventional law and ‘soft’ law, to adopt ecosystem approaches, apply the precautionary approach, integrate biodiversity conservation into management and ensure transparent and participatory decision-making processes. Some of those principles have even been held to represent customary international law. Yet, there remain significant differences in how those principles are applied and understood by states.
Healthy ecosystems and the sustainable provision of their services is the basis for ocean policy. Management of ocean areas and resources involves multiple sectors, such as fisheries, navigation, energy, tourism, and mining, many of which directly depend on the health and productivity of the marine environment – which provide sectoral benefits from ecosystem services. Therefore, having an ecosystem-based approach involves cross-sectoral cooperation and the integrated management of resources and marine space – and can form the basis of integrated ocean policies.
In spite of these complex interrelations that the ecosystem approach has brought to the fore, and since it emphasises the need for comprehensive management schemes in ocean affairs; having a holistic approach is needed. This will accommodate environmental issues with societal objectives, including the participation of stakeholders and local communities in the design, implementation and adaptive processes of such plans, which embodies the ecosystem approach.
In any sector, the importance and role of stakeholders is extremely essential. Without a shadow of doubt, the importance of the stakeholders in ocean governance in Africa is important in addressing the challenges plaguing ocean governance and improving stakeholder participation.
Therefore, in promoting cooperation among institutions, engagement of and dialogue among stakeholders is key. Under the different regional and sectoral institutional frameworks, a wide range of stakeholders needs to engage in a cross-sectoral discourse at different levels to chart the course to be followed.
The stakeholders in ocean governance cuts across the length and breadth of industries who are affected either directly or indirectly with the activities or lack of same in ocean governance in Africa such as:
There needs to be a consistent dialogue amongst the various stakeholders which can effectively develop and advance ocean governance and a sustainable process.
Essential Factors in Ocean Governance
Ocean Governance can’t operate in a vacuum as there are essential factors which are needed to drive it. At the United Nations Environment (UNEP) Consultative Meeting on the Development of African Strategy for Ocean Governance which held in Nairobi in 2018, two of the essential elements which were highlighted for ocean governance was Political Will and Awareness.
Political will is important because the effects of policies which can impact ocean governance come from the highest political level, and from the international, regional and sub-regional level. For example, at the international level, the International Maritime Organization (IMO) lays down the rules for international commercial shipping. On the other hand, at the regional level in Africa, political will has been lacking, as well as cohesion amongst states. The political will of the Member States of regional organizations is key, and having an inconsistent lack of political commitment will continue being a serious challenge for ocean governance.
The awareness that the ocean isn’t just a means of livelihood, but also a means of sustenance is important for ocean governance. With increased awareness in ocean governance, it will result in more information and promotion of public education in ocean-related matters. With increased knowledge and awareness, it will call for more participation and accountability ocean governance.
Institutional and Human Capacity
The importance of making this shift is that, even with a greater political will, nothing will happen without an enhanced capacity to act to achieve change. A key ‘short cut’ to implementing the green economy for the ocean is to explore and identify like-minded governments and share capacity on issues of critical concern in a creative, effective and politically appropriate manner.
Creation of an Integrated Approach
The existing ocean governance framework is ripe for reform, and this overhaul needs to usher in an integrated approach to ocean governance. This entails having the right structure and institutions to respond to the growing changes and demands necessary for ocean governance, and the novel approaches towards the co-ordination of the marine sector. Such a transformation will require fundamental changes in the way the ocean is governed at national, regional and sub-regional levels to create a more harmonised and integrated approach. Change only happens through strong leadership, and this is necessary in driving the need for an approach in action practical ways, namely around the three policy tools of blue capital, marine spatial planning, and economic incentives.
In September 2015, the UNGA adopted the 2030 Agenda for Sustainable Development, including its 17 SDGs and 169 targets, as a roadmap and action plan to guide transformation and development efforts towards social, economic, and environmental sustainability from 2016 to 2030. The SDGs build upon the achievements of the 8 Millennium Development Goals (MDGs) and includes new milestones such as tackling climate change and its impacts; building effective institutions and promoting peace and justice, and safeguarding sustainable consumption and production arrangements. Sustainable Development focuses on achieving long-term transformation which requires long-term planning processes than the standard annual budgets or medium-term expenditure frameworks.
The SDG framework necessitates 15-year strategies which involve the development of national roadmaps and coordination of stakeholders’ activities for collective action. The new stand-alone ocean goal (SDG 14) focuses on the impact of human interaction
with ocean and coastal resources and it consists of seven targets (SDG 14.1-14.7) and three means of implementation (SDG14.a-14.c) which collectively addresses issues relating to ocean governance, capacity building and the sustainability of ocean, seas and marine resources, including coastal zones.
The implementation of some of the SDG 14 targets has been part of the ocean governance framework of Coastal States before the adoption of the 2030 Agenda, as most of the targets are a restatement of existing commitments and conventions.
For example, target 14.1 encapsulates the provisions of international and regional agreements such as UNCLOS, Regional Seas Conventions and MARPOL on pollution prevention; target 14.4 is motivated by the 2002 Johannesburg Plan of Implementation and target 14.5 partly incorporate Aichi target 11 adopted under the CBD.
In addressing sustainable practices in ocean governance and how this pertains to Africa, and the attainment of social, economic, and environmental sustainability for the improvement of ocean governance and sustainable development goals – particularly SDG 14, the following are important.
Regional approaches to ocean governance make it possible for States and stakeholders to cooperate at an ecosystem scale and work together across sectors and national boundaries and are essential for ocean sustainability.
Regional approaches and instruments can play a key role in meeting most of the SDG14 targets, with particular relevance in the areas of marine pollution, sustainable ocean management, fisheries, conservation, and economic benefits for Small Island Developing States (SIDS) and Least Developed Countries (LDCs).
Regional approaches can help advance ocean governance by bringing all relevant actors together, taking the interdependencies among SDG14 targets into account, and providing co-benefits for the other SDGs.
Regional cooperation is key to overcome gaps and institutional weaknesses, the success of SDG14 and should be further strengthened, including through capacity building and the development of regional partnerships.
With the diverse nature of the African continent, and the multiple players in existence which has a role to play in ensuring Africa is connected to the world through a reform in its legal and institutional frameworks, it is imperative that the recommendations enumerated above should be considered at the top echelon of governance, and Africa should strive towards a more harmonised and integrated approach towards ocean governance.
There is absolutely no need to re-invent the wheel in the African context as policies and frameworks of other countries can be understudied to ensure that the best approach is adopted to develop the existing framework, and making it sustainable.