Robert L. Friedheim

Ocean governance at the millennium: where we have been — where we should go

Abstract During the last third of the twentieth century, there has been a world-wide effort to develop an effective ocean governance system. This has been done through major international treaties and conventions, through the operation of global and regional organisations, and through national ocean management efforts. How good have been the results? Are we moving in the right direction? What can we learn from the failures as well as successes? Will the twentieth-century efforts survive into the twenty-first century or must we change directions? Policy analysts should always ask questions concerning how well we have done before proposing policies for the future. But a change in century is a particularly good time for a stock-taking. That is the purpose of this paper. It attempts to ask the question — are we headed in the right direction? This is important to help correct errors and also may force us to recognise that the context of future ocean policy in the next century may be sufficiently different to cause us to rethink our priorities. 1

Moderation in the pursuit of justice: Explaining Japan's failure in the international whaling negotiations

Since 1982, the bargaining tactics and strategy pursued by Japan in the yearly meetings of the International Whaling Commission (IWC), in its attempt to lift a whaling moratorium and prevent the creation of a Southern Ocean sanctuary have been notably unsuccessful. But Japan has persisted and continued using the same approach. The purpose of this article is to analyze and explain Japans bargaining behavior in the IWC. After explicating the modern history of negotiations within the IWC, the author notes several attributes of Japans bargaining behavior: moderation or reasonableness, persistence as a strategy, passivity, and legalism. Three possible explanatory variables are advanced: rational choice, cultural molding or a “Japanese way,”; and domestic constraints on the negotiators. After testing these variables, it is concluded that all three are needed to understand Japanese bargaining behavior.

Designing the Ocean Policy Future: An Essay on How I Am Going To Do That

A new millennium offers an opportunity to think about possible future directions in ocean policy. But such an effort must take account of the considerable changes in the world political and economic system since 1989 - globalization with its rapid transportation, communication, economic interdependence; population increase, increased pressure on the stock of the worlds natural resources and spaces, the end of the Cold War but with diffusion of nuclear, chemical and biological weapons, and a rise in world environmental consciousness. In this context we must develop patterns of sustainable use, and learn how to implement forward look principles for ocean management such as those propounded by the Luso-American Foundation. However, we have not calculated the political and economic costs or understood how we will achieve outcomes consistent with the principles. These are critical to successful global ocean governance. We understand what must be achieved but not by whom or how.

Managing the second phase of enclosure

Abstract With the signing of the UNCLOS III Convention (1982), the first phase of enclosure of the oceans has been achieved. New authority structures have been created for EEZs but new rules embodying rights and liabilities, as well as behavioral prescriptions, must be developed. Therefore the issue of ocean management is not a closed chapter and more difficult tasks lie ahead. There is a need to clarify our definitions of important concepts. ‘Enclosure’ and ‘common (not communal) property’ are not well understood, and attempts to apply to the oceans these terms as they pertain to land can be misleading. It is necessary to recognize the peculiar nature of the ocean which will always remain a ‘physical common’ by virtue of its indivisibility and open access. Despite human laws and boundaries, oceans can never become property in the same way land can. Thus metaphors of management policies implemented in the enclosure of the American West are of limited applicability.

Assessing the state of the art in national ocean policy studies

Abstract For over a decade the nation‐states of the world have been redefining the legal and political status of the worlds oceans, both unilaterally and in multilateral negotiations. Despite the growing importance of ocean policy, we know too little concerning what are current nation‐state marine interests, how they make their marine related decisions, or how they organize themselves for marine policy. This paper was written as an organizing paper for a workshop to assess the state of the art in national ocean policy studies. It was sponsored by the Marine Science Affairs Program, International Decade of Ocean Exploration Office, National Science Foundation. The paper states the goal of the workshop, it defines the terms of reference, such as public policy, public policy analysis, comparative public policy analysis and national ocean policy; it offers a “systems”; influenced model for the evaluation of national ocean policy, and it identifies the state of our knowledge of the various components of natio...

Fishing negotiations at the Third United Nations Conference on the Law of the Sea

Abstract One of the major consequences of the negotiations at the Third United Nations Law of the Sea Conferences (UNCLOS III) was a substantial reduction of the international commons in which the freedom to fish existed and the creation of what was supposed to be a sui generis zone, the 200‐mile exclusive economic zone (EEZ), but within which the coastal state would have a virtual monopoly on the right to allocate resources. How this was done at UNCLOS III is analyzed using a model that shows the progress over time on major issues of the parliamentary‐diplomatic‐style negotiation in which consensus was required for an acceptable outcome. The shifting positions of major states and bargaining groups as they maneuvered toward consensus is examined on the questions of the creation of the 200‐mile EEZ, the rights of foreign fishermen in the EEZ, the fishing rights of geographically disadvantaged states in the EEZ, and the management of highly migratory species. The analysis shows that the new ocean regime, cr...

Neglected issues at the third United Nations Law of the Sea Conference

Abstract Despite long years of negotiation, the question of “neglected” issues in the third United Nations Conference on the Law of the Sea (UNCLOS III) was deemed sufficiently important by the Law of the Sea Institute to devote to the subject its entire twelfth annual conference. The present authors were asked to provide an organizing paper for the conference. This is a revised version of that paper. Since our responsibility was to survey the range of possible charges of “neglect” we have included more than we would personally have deemed “neglected”. The discussion is divided into two main parts. In the first section “neglect” is treated as a policy decision not to chose certain policy options. In the second section UNCLOS “neglect” as possible failure of the delegates to do their duty (in six particular sub-categories) is addressed. In the first half of the paper, seven issues that were essentially unaddressed by UNCLOS III are examined within a typology designed to try to better understand the reasons for neglect. Non-nodule resource recovery in the international area, and management of energy resources beyond the 200-mile economic zone and/or the continental margin are said to be unaddressed because too little was known to consider these as the subject of regulation or management. Problems of polar regions and more stringent control of military uses of the ocean in the international areas are claimed to be “neglected” because the issues were too delicate or political. Finally, some analysts see management of multiple-use problems in the North Sea, control of airspace, and surface navigation as unaddressed issues because UNCLOS is an inappropriate forum for dealing with them in the detail they deserve. In the second half of the paper the authors utilize a Bayesian computer model of the negotiations originally developed by Friedheim and Joseph Kadane. If neglect is viewed as dereliction, such issues as land-base pollution sources, whaling, and islands interests might be seen as “neglected”. Additionally, there is an attempt to identify the interests, both nation-state and group, that may be considered neglected. Here the authors emphasize the potential consequences of UNCLOS III neglect of interests of the Geographically Disadvantaged States. The final section of the paper views the bargaining opportunities either lost or ignored by the conference. This analysis consists of attempts to compare various negotiating positions and draft treaties, by use of the model, to determine the nature and strength of support for each. A concluding table outlines a general structure of a treaty that might be more acceptable, under the criteria specified, to the greatest number of participating states.