Governing a final frontier : Deconstructing a decade of dialogue on governing maritime areas beyond national jurisdiction : moving towards a new implementation agreement under UNCLOS

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UNIVERSITY OF AMSTERDAM

GRADUATE SCHOOL OF SOCIAL SCIENCES MSC HUMAN GEOGRAPHY

TRACK ENVIRONMENTAL GEOGRAPHY

Governing a

final frontier

Deconstructing a decade of dialogue on governing maritime areas beyond

national jurisdiction: moving towards a new implementation agreement under

UNCLOS

Author: Fleur Visser Master thesis

Student number: 10677194 Date: June 20 2016

Supervisor: Joeri Scholtens Second reader: Eric Chu

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Abstract

In this thesis I look at the current discourse on the new implementation agreement under UNCLOS that was decided to start develop in 2015. This agreement is aimed at governing human activity in areas beyond national jurisdiction (ABNJ). The past decade of dialogue within the global ocean governance community reveals its governance discourses. Since language both reflects and constructs discourse, it is shown how dialogue has had a dual role in the past decade. Discourse is uncovered by employing a critical discourse analysis that assesses four central discourse components. These are the ‘images’, ‘practices’, ‘institutions’ and ‘inclusion’ components of governance. These components are used as the analytical framework to assess the texts on global ocean events, which I consider the global platforms of discourses. The research method that enables this analysis is a qualitative content analysis. It is aimed at uncovering both the prevalence and normative side of discourse through identifying co-occurrences and word patterns in the texts on global ocean events. Two competing discourses are found. The dominating discourse of the two reflects and shapes the current stance towards the new agreement to a great extent. However, it is still contested and remains uncertain in its stability. A group of key ocean players remains to be unconvinced of the need for a new agreement. The dispute over this new agreement appears to have its basis in the implementation agreements under UNCLOS in the nineties. These agreements play a large role in the past decade of contestations on its new sibling, the new implementation agreement of 2015.

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1. Introduction

This thesis is about an area that is considered a major final frontier. It is a maritime space of which mankind explored only about five per cent, but however covers more than three-quarters of the ocean surface. As renowned marine engineer Graham Hawkes once famously hollered: “Your rockets are pointed in the goddamn direction!” (TED, 2008). This maritime space is known as the maritime areas beyond national jurisdiction (ABNJ), which lie outside the responsibility and control of any single State (IUCN, 2013). These vast and largely unknown spaces do not fall within the national jurisdiction of a State, which poses serious challenges to much-needed fisheries management and biodiversity conservation efforts in these areas (FAO, 2015). The human activities that are adversely affecting the biodiversity rich and life-sustaining ecosystems in this maritime area are currently subject to governance arrangements that are complex and fragmented. Its institutions appear as evolving too slowly to counteract the adverse effects that follow from human activity and other stressors in these areas (Berkes et al., 2006). Hence, it could be argued that the governance of the ABNJ itself are a final frontier and therefore provides a fascinating field of enquiry.

The increasing challenges that affect the ABNJ have not gone unnoticed in the global ocean governance agenda. In 2015, the United Nations General Assembly (UNGA) decided to start develop a new agreement on biodiversity in areas beyond national jurisdiction to complement the existing implementation agreements under the United Nations Convention on the Law of the Sea (UNCLOS). It was agreed upon that this new agreement under UNCLOS is to be implemented on a global and legally binding scale to govern human activity in ABNJ. The decade prior to this decision, however, has seen heated interactions among its stakeholders that still continue as we speak. This decade is of significance to deconstruct, as a large portion of these interactions are still in need to be translated to concrete governance arrangements within the new agreement (FAO, 2015). Considering governance is fundamentally shaped by the interaction between actors (Kooiman & Bavinck, 2005), critical questions on its underlying processes should therefore be raised.

Critical questions on the governance of ABNJ of the past decade seem to however have only slightly been touched upon by scientific literature. Consequently, there is insufficient knowledge on the influence of underlying processes prior to the final decision to start developing the new agreement. These processes are hereafter conceptualized as the discourses

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on the governance of ABNJ. Discourse is an accumulation of ideas and concepts that lead to a certain views (see section 2.3). According to Osherenko (2007, p.320), it is important to uncover the current discourse in ocean governance, in this case ABNJ governance, because “[…] new ocean discourses are likely to lead to new systems of ocean governance to deal with new uses and conflicts arising over ocean space”. To exemplify this importance, Steinberg (2001) explored the evolution of changing and conflicting discourses on the ocean by looking at how humankind views and uses the oceans. He argues that the ocean is not only a resource but, rather, a space defined by society and governed through forces that shape its governance (ibid). Hajer and Versteeg (2005) make a similar argument to that of Osherenko, as they note that an analysis of discourse will identify possible new sites of governance and the dynamics therein. In the context of the new agreement it is therefore essential to identify the discourses that underlie the governance the ABNJ. This way, I can contribute to the development of concrete governance arrangements within the new agreement under UNCLOS.

Within the context of this thesis, the ways in which the involved stakeholders speak about a certain concept or phenomenon reveal discourse. This language use has a significant impact on constructing truths on the governance of ABNJ. For example, contemporary questions on ABNJ, such as “who owns the Arctic Ocean?” (Young, 2009) and “who owns their seas as Island nations drown?” (CI, 2015) require urgent answers. Interestingly, these kinds of questions reflect the current stance on these matters while at the same time facilitate in their answer by involving them into dialogue. In turn, this shapes the process towards the answers to these questions. As also suggested by Jørgensen and Philips (2002), language therefore both reflects and constructs the world, or in this cases the ABNJ, around us. I am going to assess the ways language use shapes and reflects reality by deconstructing and reconstructing the past decade of dialogue on the new Agreement. This way, I am able to sketch the course the global ocean governance community has taken in reaching consensus on the new agreement under UNCLOS. Through an extensive assessment of their dialogue their path towards this new agreement is made explicit.

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1.1 Problem statement and research question

The concrete problem statement in this thesis is as follows. The influential implicit processes that underlie the new agreement are in need of clarification, as the ABNJ are subject to adverse trends that are in urgent need of concrete governance arrangements that come out of this agreement. A recent study predicts a major extinction if the human impact on the marine environment, including in ABNJ, is left ungoverned (McCauley et al., 2015). Scientists who conducted this study hold out hope to reverse these kinds of negative trends in the marine environment, as the solution remains to be ‘in reach’ of managers (ibid). To clarify on this reach, I perform a critical discourse analysis on the dialogue on governing ABNJ within global ocean events that took place in the past decade. The global ocean events are taken as global platforms that display the governance discourses. I consider the language use of the community that is tasked with governing the ABNJ as a mirror of the reality of governing the ABNJ. By assessing how various stakeholders within this community legitimize and advocate their desired governance arrangements, tensions and consensuses within this community become clear. I hope this deconstruction of governance discourses will ultimately contribute to solving the adverse trends in the ABNJ. This thesis provides input for a conclusion and discussion on the following research question:

How does the past decade (2005-2015) of global dialogue on governing areas beyond national jurisdiction (ABNJ) shape and reflect the current global discourses on the new agreement under UNCLOS?

In line with Lund (2014), who argues that deconstructing a concept into elements leads to more clarity on the totality of the concept, I have deconstructed discourse into four analytical elements. These elements are the central discourse components ‘images’, ‘practice’, ‘institutionalization’ and ‘inclusion’. These four central discourse components were derived from iteratively combining the reviewed literature with the findings of the analysis. These four components then lead to the formulation of four sub-questions:

1. How do the stakeholders within the global ocean governance community imagine the ABNJ and its governance, and what principles and values underlie these images?

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2.Which practices of governance do stakeholders within the global ocean governance community advocate to include in the new UNCLOS agreement, and why?

3.Which institutionalization processes have characterized the governance of ABNJ in the past decade, and how do they construct the current insitutional framework of the new UNCLOS agreement?

4.How inclusive is the governance of ABNJ in terms of stakeholder involvement and the topics that are to be included in the new Agreement?

The theoretical chapter will further clarify these four sub-questions and the various concepts involved. Deconstruction of discourse is thus both an analytical and methodological thread throughout this thesis. This will enable me to reconstruct the current discourse on the new agreement under UNCLOS that is under way (hereafter new Agreement). In line with Leary (2012), who considers the examination of the options on a new governance framework for ABNJ as long overdue, I examine the ideological positions of stakeholders within this framework. To stay in his line of words, I consider their deconstruction and reconstruction long overdue.

1.2 Relevance to society and science

This thesis is going to analyse the ways in which the reality on governing ABNJ is being constructed by performing a discourse analysis on its governance. In this section, I address the relevance of this analysis to society and science. The societal relevance of this thesis is found in the normative deconstruction of governing ABNJ. One of the main aims is gaining insight in which actors are, perhaps overly, involved in constructing and reflecting discourse. The findings of this thesis are then positioned into the wider public debate on the global governance agenda on ABNJ. This thesis will also critically question the effects of language constructions that (re) produce and legitimize social injustice and inequity in its discourse and how and why these discursive practices became true or self-evident (Van den Berg, 2004). This normative approach to governance proves to be a significant focus in doing a critical discourse analysis (see Chapter 3). Consistent with Crewe and Harrison (1998), I will ask the question of whose governance it actually is, and which implications this answer has for future governance arrangements in the new Agreement. Laying bare the language within the global

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ocean events will also illuminate how current ABNJ governance is perhaps exclusionary. This way, this thesis contributes to societal change (Van den Berg, 2004) that could positively impact the inclusion of marginalized actors and/or topics in the future.

The main scientific relevance of this thesis is the contribution to less complexity in ABNJ governance. This is reached through a theoretical and analytical deconstruction of the ways discourses could impact the future the content of the new Agreement under UNCLOS. According to Hajer and Versteeg, a discourse analysis has three strengths that contribute to the study of environmental politics, which are as follows. It reveals the role of language in politics, it sheds light on the language in governance practices and clarifies on their ‘how’ questions and illuminates their governance processes (Hajer & Versteeg, 2005). Song et al. (2013) adds to the strength of discourse analysis by arguing that making discourse explicit contributes to reducing the complexity of governance challenges on ABNJ. He urges to make the elements within discourse explicit, four of which I translated into central discourse components and formulated into sub questions (see section 1.1).

1.3 Outline of the thesis

Chapter 2 describes the core concepts within this thesis in a theoretical manner. Chapter 3 zooms in on a critical discourse analysis. It shows how the four central discourse components came to be and how they make up the analytical framework of this thesis. After having laid down the theoretical foundations, Chapter 4 places them into the context of this thesis. Chapter 5 outlines the research methods that enable the analysis. Chapter 6 outlines this analysis and interprets it outcomes. Chapter 7 concludes this thesis by answering to the research questions and the problem statement. It discusses its outcomes and puts them in different perspectives. Chapter 8 and 9 entail the appendices and the literature list.

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2. ABNJ, governance and discourse

Words imply meanings. When talking or writing about the ocean, different meanings may come to ones mind. Some people may visualize a calm shore with soothing waves while the other may think of a dark and deep place with still to be discovered organisms. Therefore, it is imperative to realise that the choice for a certain word or concept tells us something about the perception of its user on the meaning of the word. In the coming sections, three concepts are placed into their theoretical conceptualization and definition. They serve as the core concepts within this thesis. It is important to keep in mind that they are contextualized and problematized respectively further on in this thesis. This is one of the main prerequisites in uncovering discourse.

2.1 Maritime spaces beyond jurisdiction

Considering the ABNJ are not mere geographic sites, they should also not be treated as such in assessing and designing their governance. Instead, they should be considered fluid and dynamic contexts of social interaction (Stokowski, 2002). ABNJ are subject to place-making behaviours such as ideology, power, control and resource distribution while also being susceptible to discursive manipulation (ibid). In this thesis, ABNJ are also considered to be a global common pool of resources (CPRs). They are regarded as such because of two inherent characteristics that are as follows. They are subject to difficult and costly exclusion from its ecosystems and face rivalry in the consumption of their resources (Aralal, 2014). Because of these two characteristics and its large and global scale, one might expect a tragedy to happen to this global common (Hardin, 1968; Aralal, 2014). Hardin (1968) argues that this tragedy is inevitable, as mankind uses the freedoms of the commons to pursue maximum individual benefit. Within the context of ABNJ, this could for example play out to be a major extinction of species. In consistency with Buck’s (1998) view on global commons, the ABNJ therefore present a practically demanding challenge to its governance. She also holds out hope in avoiding a tragedy on ABNJ, by arguing that its governance is ready to be engaged in public policy debates (ibid).

2.2 Governance: interaction and scale

According to Kooiman and Bavinck (2013), the term governance has different meanings that depend on its user. These differing meanings stem from whether one approaches it as

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normative or in a more analytical manner (ibid). Contrasting this divide between approaches to governance, I will approach governance in both ways. Governance is also fundamentally about interaction. Its governors bring certain assumptions or views into their interaction on how to govern a problem or solution, wherein institutions play an enabling role (Kooiman & Bavinck, 2005). Hence, I use the following definition of governance: “the whole of public as well as private interactions taken to solve societal problems and create societal opportunities. It includes the formulation and application of principles guiding those interactions and care for institutions that enable them” (Kooiman & Bavinck, 2005, p. 17). Adding to this definition of governance, the governing agreements that come out of these interactions can manifest themselves in law, norms, power or language (Bevir, 2013). Within the context of this thesis, the latter manifestation is of specific interest. It is the lens through which governance is being deconstructed.

Governance is subject to multiple scale levels. While I do acknowledge that governance takes place on multiple levels, I chose to focus on governance on a global level. This global level is the most suitable scale to the aims of this thesis. According to Cash et al. (2006, in Berkes 2008), a scale is the spatial and temporal dimension to assess the phenomenon that is of interest, in this case being the global ocean governance community gathering on the governance of the global ABNJ on a global platform. Within the context of this thesis, the global scale also pertains the time and space dimension of the governing system (Kooiman & Bavinck, 2005). In this thesis global governance is regarded as the governance through multi-lateral language interactions and - agreements, such as treaties, summits and laws. These interactions can take place between both governmental and nongovernmental transnational actors such as the private sector or civil society (ibid).

The notion of global governance is not free from criticism. Global governance is accused of forcing States going beyond their capacity or political framework or defining objectives that only lie within the reach of competencies and limits of the defining party (Blin & Marin, 2008). As Davis (2012) similarly argues, global governance is deficient and anti-pluralist, thereby risking devolving into an imperial project. He views processes of transnational regulation being subject to the intolerance of diversity (ibid). Governance could also be not straightforward in its science and decision-making on problems. This problem is then regarded as wicked. A problem is wicked when there is no consensus on its science and the values that guide problem solving (Gupta, 2014). In line with Jentoft and Chuenpagdee

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(2009) their argument on the wickedness of fisheries and coastal governance, the governance of ABNJ may therefore also be subject to wickedness. This wickedness could be considered a governability issue that poses challenges to the rationale and effectiveness of governance (ibid). To overcome this issue, Gupta and Hisschemöller (1999 in Gupta, 2014) argue to confront, evaluate and integrate the often contradictory viewpoints of the stakeholders of governance.

2.2.1 The governing system and the global agora of governance

The stakeholders that are tasked with governing the ABNJ are societal governance institutions. They could for example be the state, market, civil society and/or the more hybrid forms among them (Kooiman, 2003). Within the context of this thesis, these societal governance institutions are considered the global ocean governance community. It is however not yet clear of whom this community is comprised of exactly and how they have played a role in ABNJ governance in the past years. The analysis of the composition of the governing system should clarify on this and the extent of their participation. The settings wherein these stakeholders meet also uncover the extent of their participation. The transboundary spaces wherein their interactions take place can be described as the global agora of ABNJ governance. A global agora is a global public space of state -, civil -, market and culture interactions generated by globalization and facing multiple publics (Nowotony et al., 2001; Stone, 2013). The global agora is shaped by the interaction of its actors and is a non-physical realm of exchanges intending action such as policy or law (Stone, 2008).

The actual locations where these global agora actors gather are however certainly physical. These physical spaces could be considered to be the embodiment of the global agora. They could for example be the policy venues, private associations or intergovernmental conferences as described by Stone (2008). These spaces could however be dispersed and/or exclusive, leading to inequities such as privatized decision-making, exclusion of actors or neglected voices (ibid). Following Stone’s line of argument on physical spaces of global governance, the global ocean events that are analysed in this thesis can thus be considered as the embodiment of the global agora of ABNJ governance. These events could therefore also have ‘behind the curtain’ processes of exclusion and neglect (ibid). Similar to Robbins’s (2012) take on governance, this thesis thus tries to uncover of whom the global ocean governance community is comprised of, where they meet and why and whose interests are represented by looking at underlying power relations. There could for example be multiparty discourses

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present within their interactions (Bannink and Isselt, 2015). In turn, these discourses could lead to complex roles and certain participation frameworks (ibid). In this thesis, I will uncover participation by assessing the motivations, power relations and partnerships within the governing system that have been constructed through discourse (see 3.1.4). To clarify on this construction, the coming chapter will first elaborate on the role of discourse.

2.3 Discourse as theory

Although discourse has a vast amount of definitions, I use Hajer’s definition of discourse because it is most suitable to the context of this thesis. He defines discourse as an: “ensemble of ideas, concepts and categories through which meaning is given to phenomenon” (Hajer, 1993, p. 44). In this thesis, this ensemble is perceived as underlying the global ocean governance community giving meaning and direction to the phenomenon of ABNJ governance. Their differing language on these ideas, concepts and categories is structured in certain patterns of discourses (Jørgensen & Philips, 2002). These patterns imply multiple systems of meanings and therefore series of discourse, rather than a unified discourse (ibid). Discourses are varying versions of the ways we comprehend an object and therefore makes up our concepts of the what, why and how of this object (Bryman, 2012). Yet, discourse does not appear in a historical vacuum. Discourse is an ensemble of ideas, categories and concepts that emerge in the context of historical discourse and contain the ways in which the phenomenon was dealt with in the past (Hajer, 1993).

Following Hajer’s line of argument, I am uncovering the current discourse on the new Agreement by assessing which discourses on ABNJ governance have emerged and how. This way, I can assess how meaning is given to the new Agreement. Other definitions of discourse similar to that of Hajer serve to further clarify on the concept. First, Dryzek’s (1998, p. 65) defines discourse as: “those shared, structured ways of speaking, thinking, interpreting, and representing things in the world”. Largely in line with Dryzek’s definition, Bialasiewicz et al. (2007, p. 23) describe discourse as: “a specific series of representations and practices through which meanings are produced, identities are constituted, social relations established, and political and ethics outcome made more or less possible”. To conclude this section, I have hopefully clarified on discourse as a theory. In the coming chapter I zoom in on doing a critical discourse analysis (CDA) and the central discourse components that enable it.

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3. A critical discourse analysis: the eco criticism approach

Discourse cannot be regarded as a self-determining structure that appears in a neutral vacuum. Therefore, not only will I question the prevalence of certain discourses, I will also question their normative aspects. This will enable me to uncover by whom discourses are constructed and why. Hence, discourse should not only be viewed as being neutral in constructing the world around us: “our ways of talking do not neutrally reflect our world, identities and social relations but, rather, play an active role in creating and changing them” (Jørgensen & Philips, 2002). The ecocriticism approach to discourse adheres to this non-neutral character of discourse. This approach raises awareness of the influence of discourses on environmental crises, in the hope that it will result in action (Muhlhauser & Peace, 2013). According to Mühlhäusler and Peace (ibid), this critical linguistic - and eco linguistic approach to environmental governance of crises are based on the poststructuralist idea than perceptions on the environment are constructed through discourse.

CDA lays bare the multiple implicit layers of text or speech. These layers often hide varying purposes and/or sentiments of its users (Bryman, 2012). These purposes and sentiments are covered in discursive devices, being the language constructions in text or speech (ibid). The notion critical discourse analysis is however slightly deceptive, as the notion of an “analysis” suggests a main interest in analysis without much focus on theory (Van Dijk, 2004; Stokowski, 2005). Indeed, CDA entails doing an analysis, since a sole theoretical review would not contribute to a great increase in knowledge on the discourse that is in need to be uncovered. Yet, CDA is also about applying theory, as it combines theory and method through a reiterative and contextual process that ultimately leads up to learn more about the problem of study (Van Dijk, 2004). By perceiving CDA as both a methodological - and theoretical framework I am able to make inferences on discourse through “identifying specified characteristics of messages” (Holsti, 1969, p. 14).

According to Fairclough (2003), the most straightforward way to identify these implicit layers of text or speech is to distinguish the different facets of stakeholders’ vocabulary. Language is central in the formation of subjectivities and subjugation (Rogers et al., 2005). According to Lakoff (1973), the values and assumptions held by society are mirrored in their language. These values and assumptions draw on earlier discursive structures, and can be examined by looking at the intertextuality, or interconnectedness, of texts (Jørgensen & Philips, 2002). This intertextuality will function as a tool to CDA in this thesis. It will reveal how a discourse

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came to have a particular meaning over time by drawing on other discourses. It will also reflect which stakeholders draw on other discourses to legitimate their ideological position (Bryman, 2012). The global ocean events wherein these stakeholders meet could thus be connected to each other by looking at if and how they and their stakeholders are interdiscursively related (Jahnsen, 2007). The possible interdiscursive connection can be assessed by looking at how stakeholders draw on each other’s statements and arguments, thereby rejecting, following or creating new discourses (Philips et al., 2004). By analysing global ocean events over a certain period of time, I can thus infer on the current discourse on the new Agreement by assessing emerging combinations or rejections of discourses within that period (ibid).

3.1 Central components of governance discourses

This section will first outline why I divide discourse into more comprehensible components, whereafter I show how this is done. The multiple and competing discourses on the environment need to be compared and organized to advance the analysis of environmental crises (Dryzek, 1997). Two influential social scientists writing on the categorization of environmental discourses are Backstrand and Lövbrand. They identified three environmental discourses at play in the politics on climate change by categorizing these discourses into components (Backstrand and Lövbrand, 2006). In line with Backstrand and Lövbrand and Dryzek, I organize the multiple and perhaps competing discourses into central discourse components (Rammelson 2008). These components are the shared characteristics of all discourses (ibid). They serve as the analytical discourse components that together make up the analytical framework of this thesis.

Dryzek (1997) also provides an influential taxonomy or set of environmental discourses. He shows that environmental discourses are often in conflict and rest on: “assumptions, judgments, and contentions that provide the basic terms for analysis, debates, agreements, and disagreements in the environmental area no less than elsewhere” (Dryzek, 1997, p. 8). Dryzek takes a similar approach to that of the central discourse components, as he uses structural elements on which he ultimately taxonomizes an environmental discourse (Tuler, 1998). Dryzek appears to take a broad swipe at environmental discourses in the global arena (ibid). According to Tuler, Dryzek’s broad approach to environmental discourse could be the reason that he does not provide a systematic account of discourse backed up by systematic data

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analysis. Instead, he seeks them in plausible stories (ibid). In line with Dryzek’s broad approach to discourse, I will uncover discourse through stakeholders’ stories. Their dialogue will be taxonomized by categorizing and combining the central discourse components that emerge out of this dialogue into distinct discourses. These discourses will lay bare possible disunity within the global ocean governance community.

The interactive governance theory is placed at the core of this thesis to understand the ways ABNJ governance is subject to discourse. According to Voyer et al. (2015), the focus on interactive governance in natural resources management provides a new approach to the social dimensions of natural resource management. In this approach, governance is consisting of the governing system (GS) and the system-to-be-governed (SG) (Kooiman & Bavinck 2005, 2013; Voyer et al. 2015). The former system is made up of institutions, management mechanisms and instruments and the latter includes the ecosystem and its resources and users (Jentoft 2007; Jentoft & Chenpagdee 2009). The interactive governance theory places emphasis on the SG and its interactions with the GS. Contrastingly, I chose to focus on the GS in this thesis since I am interested in the discourse that resides within the global ocean governance community. While the interactive theory already has been applied to the field of small-scale fisheries governance within maritime areas under national jurisdiction, it has been unexplored in the field of ABNJ governance and discourse. As the next paragraphs will show, this thesis is a first attempt to connect the interactive governance theory to discourse.

Discourses on the governance of ABNJ consist of central discourse components. This resembles the idea within the interactive governance theory that governance is not just a single layered or one-way process. Instead, it consists of multiple layers that structure governance processes like decision-making and law making throughout multiple levels. According to Kooiman and Bavinck (2013), governors within the GS have three resources of governance available to them. These resources are the governing elements, being the ‘images’, ‘instruments’ and ‘actions’ of governance. Images can be described as the dominating mental model from which the governing system draws its inspiration, direction and goals (ibid). This model can for example consist of visions, assumptions and convictions (Jentoft & Chuenpagdee, 2009; Kooiman & Bavinck, 2013). The instruments and actions are considered following up on the images. The former are the governance tools and the latter pertains the implementation of these tools (ibid). These images, instruments and actions enabled me to develop the central discourse components within this thesis.

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The orders of governance as described by Kooiman and Bavinck further facilitated the development of the central discourse components and are as follows. The first order of governance, or the day-to-day governance, is seeking to solve problems in practice and create opportunity in action. This first order of governance appears to be in line with the governing elements ‘instruments’ and ‘actions’. The second order of governance or the institutional governance can be described as the enabler of governance. It consists of (in) formal sets of rules and the organizations that are responsible for deciding on and the monitoring of these rules. The third order of governance, or meta-order governance, resembles the images. They are to be uncovered, assessed and evaluated by looking at the higher order elements of governance and making these explicit (Kooiman, 2003; Kooiman & Bavinck, 2013). The governance of ABNJ thus consists of both elements and orders, which have been combined and re-defined to serve as the central discourse components within this thesis.

The notion of inclusion is used as a specific component to which I address my quest to uncover stakeholder involvement and topic inclusion. This approach to discourse draws from influential social scientists as Foucault (in Fairclough, 1989) and Habermas (1977) who argue that language is a site of power relations, legitimization and domination. Power can take on a dual role because it can manifest itself in liberating as well as in oppressing forms. It can also be both productive and constraining (Jørgensen & Philips, 2002). These dualities seem to not haven taken into account to a great extent by Foucault and Habermas in their perception on CDA. They seem to rather focus on the oppressing and constraining forms of power. I will instead focus on both, by analysing how and why a particular discourse and/or stakeholder became powerless or powerful. This way, I can infer on why certain discourses became privileged and why others became disregarded or rejected over time. In line with Reed (in Bryman, 2012), I will explore through which governance regime and/or stakeholder this inclusion or exclusion happened.

3.1.1 Imagining governance: values and principles

The following sections will go deeper into the discourse components and their subcomponents. First, the component ‘images’ is described and put into the context of this thesis. Images can be considered the subjective attributes of governance and are defined as the ‘way of seeing’ or the worldviews we hold in interpreting the world around us. The ‘values’ and ‘principles’ of governance are the normative governance traits that together make up these images (Kooiman, 2003). The interactive theory places the values, images and

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principles at the heart of the SG (Voyer et al. 2015). In this thesis, I place the ‘images’ ‘principles’ and ‘values’ at the centre of the governing system, being the global ocean governance community. I slightly differ from Voyer et al. their perception on the interactive theory for a second time. They place images, principles and values parallel to each other. Instead, I view the principles and values as subcomponents that together constitute the images.

Values and principles are defined as follows, and thereby connected to their role in the reflection and construction of discourse. Values are the key drivers for decision-making, as they place value on the SG (Song et al., 2013). The principles are the informal codes of conduct or guidelines and are the most tangible of the two (ibid). They will provide me insight into the areas of contestation within the global ocean governance community. They are also the common space for the evolution of a governance regime and function as a precursor to their rules (Houghton, 2014). They will therefore also clarify on the points of convergence of the global ocean governance community. Kooiman and Bavinck (2005) furthermore argue that by uncovering how they work together they will provide insight into how governance processes and outcomes are influenced by a higher level of governance. When made explicit, they ultimately contribute in lessening governance challenges (Song et al. 2013). When I disentangle them, they could thus provide inside into both areas of contestation and convergence within the global ocean governance community.

The images and its two subcomponents also inform me on the normative side of governance. This normative side of governance resembles the meta-order level governance where “decisions on the values and principles of the governing of governance are made” (Kooiman 2003; Kooiman & Jentoft 2009; Peters 2010). Meta governance is considered to be the governance of governance in which implicit processes take place that shape governance (Kooiman & Jenoft 2009; Meuleman, 2011). Its explicit making will gain me insight into the underlying normative structures of governing ABNJ (Tan 2011; Song et al. 2013). These principles and values within, however, often remain unspoken of. Too less attention is paid to these underlying elements of decision-making in international policy (Kooiman & Bavinck, 2013). The discourse component ‘images’ thus harbours both normative and analytical characteristics on how the world works and should work. However they remain too implicit (ibid), which has led me to uncover them in the coming analysis.

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Although a meta-level lens on governance and discourse seems innovative, it has been received with criticism. For example, Torfing et al. (2012) stress the idea that the focus on the meta-order level of governance is a task that is sensitive to failure. Bavinck and Kooiman (2013) argue, although they acknowledge the theoretical significance of the meta-order level of governance, that the governing elements and orders such as images are not as straightforward as they may seem. They stress the lack of attention to their complexity, variability and context-sensitivity within research (ibid). As a response to the criticisms, this thesis aims to extensively focus on the context, sensitivities and fluidity of the images from where the global ocean governance community draws its inspiration, direction and goals.

To summarize here shortly, the global ocean events on ABNJ governance appear to harbour a higher level of governance extending beyond the more visible layers of decision- and policy-making. The focus on this higher order of governance is of significance to this thesis. It explains how explicit governing processes draw from the mental models of the governing system.

3.1.2 Governance practices

The first order of governance or the day-to-day governance is reflected in the discourse component ‘practices’. These practices are uncovered along the subcomponents ‘actions’ and ‘instruments’, which reflect the elements of governance as described by Kooiman and Bavinck. The former and the latter have been conceptualized and defined by them as follows. Instruments are described as the “means (steering mechanisms) employed by the governing system in order to realize the goals that are inspired by images” (Kooiman & Bavinck, 2013). In this thesis, instruments are perceived as the tools of governance that the global ocean governance community (desires to) employ. An instrument could for example be a Marine Protected Area (MPA), which is an instrument to regulate or close a certain area in the ocean (see 4.2.1). The actions are defined as the implementations measures surrounding these instruments, such as enforcement, assessment and monitoring measures (ibid). They could for example be computational observers on fishing vessels or an evaluation of the closure of ocean areas. According to Almerigi et al. (2013) fisheries management literature does however not provide much guidance on how images are connected to instruments and actions. In the coming analysis I aim to clarify on this connection.

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3.1.3 Institutions: reproduction of discourse

The discourse component that enables governance is an institution (Kooiman & Bavinck (2013). Within the context of this thesis, institutions are perceived as the formal institutions, such as environmental laws, regulations, and standards, and the organizations that decide and monitor their implementation(Hukkinen, 1998; Kooiman & Bavinck, 2013). Institutions, like discourse, are social constructions. They differ in the way that they are constituted through discourse (Fairclough 1992 in Philips 2004). Hajer stresses the need to acknowledge discourses as being tied to specific institutions or actors. He argues that if a discourse is being used by a large group of people to conceptualize the world, it will ‘crystallize’ into an institution. This process is called discourse institutionalization, which facilitates the reproduction of the discourse into an institution (Hajer, 2005). However, institutionalization is not only about reproduction of “old” discourse as it appears to do in Hajer’s argument. New discourses will lead to the disruption and change of institutions (Vargo et al., 2015). Institutions will thus surely change over time (Kooiman & Bavinck, 2013). Consequently, institutionalization is about the reproduction of both old discourse and new discourse.

Similar to the argument of Tiberghien (2013) on ocean governance, it is however not clear which institutionalization processes are currently under way in governance on ABNJ. Barley and Tolbert (1997) argue that certain institutions acquired the status of taken-for-granted and shape future negotiations and interactions. Since they enable governance, it is thus also essential to uncover if institutions acquired a certain status and which ones are underway. This way, it becomes clear if and how they shape governance. Frank (in Gjerde, 2013) also questions which reform of the institutional framework is taking place. Berkes et al. (2006) furthermore argue that an increasingly globalized world requires institutions that interplay at multiple levels. This has led me to ask whether there is reform and multileveled interplay present within the governance of ABNJ or not. Institutions could also reveal institutional inequalities or gaps (Töpfer et al., 2014). This institutional misfit in ocean governance is largely due to gaps within institutions and the misfits between institutions and the system that they are applied to (ibid). By answering to the above-deliberations on institutions, it should become clear if and how they are currently underway and at play in the dialogue on the new Agreement.

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Philips et al. (2004) do stress that institutionalization is not to be examined only through concrete action coming from institutions. Rather, institutionalization must also be assessed through the process itself (ibid). Therefore, I will not focus on the outcomes of institutions as much as I will on the discursive practices constituting these institutions. Philips et al. (ibid) also argue that language is fundamental to institutionalization, whereby institutions are constituted through discourse. In line with both Philips et al. and Hajer, the coming analysis is going to uncover the interconnectedness between discourse and institutions. It will lay bare the influence of language within the institutionalization processes of ABNJ governance. This seems imperative to take into account when embarking on the journey to uncover which role the process of institutionalization plays in the new Agreement.

3.1.4 Inclusion of stakeholders and topics

Influential scientists within the interactive theory perceive the images as the main normative aspect of governance. Instead, I view the identification of the key individuals who advocate these images and the other components of discourse as evenly crucial in uncovering the normative side of discourse (Dryzek in Tuler, 1997). The motives and power relations that underlie their participation and focus reveal a great extent of the normative side of governance on ABNJ. Therefore, the discourse component ‘inclusion’ is added to the analytical framework of this thesis. It is an explicit normative discourse component that will allow me to mirror which stakeholders (are able to) construct governance on ABNJ and which topics they desire to include in the new Agreement. This inclusion can be traced back by looking at both role allocation and the political and economic context of language use (Afkham, 2014).

Governance is placed into the wider theoretical discussion of how a certain discourse can concur power or control over a certain group of people, topic or area by analysing the inclusion component. Laclau and Moffe (Smith, 1998) undertake a similar approach to discourse, by analysing the ways in which a certain political discourse concurs the hegemony in society. In turn, this hegemony exercises power over the processes and people within that society (ibid). While global governance does not seem to imply hegemony or hierarchy in theory, the system of global governance could have a ‘common dominant organizational form’ in practice (Paul, 2014). Within the context of this thesis, this hegemony could lead to inequity in ABNJ governance. Therefore, I will look at a possible unequal presence of certain dominant discourse(s) and of the stakeholders that advocate them.

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The inclusion or exclusion of stakeholders within ABNJ governance is assessed through the subcomponent ‘participation’. This is however not the only aim of assessing inclusion. The other aim is to uncover if there is inequality or neglect present in the ways certain concepts, areas, ecosystems or activities (hereafter the subcomponent ‘topics’) are included in the negotiations on the new Agreement or not. For example, some stakeholders might want to avoid a certain topic, which leads to the desire to exclude them in language use. These kinds of desires are reflected within the dialogue of stakeholders. Uncovering them will gain me more insight into certain motives within the global ocean. These motives are also laid bare by looking at the presence of certain discourse coalitions (Hajer 1993; 2005). Discourse coalitions are groups of actors who share a social construct (ibid). They frame certain concepts or issues to impose their views on others through debate, persuasion, manipulation and/or power (Hajer, 2005). By uncovering discourse coalitions, it becomes visible how stakeholders in the global ocean community try to convince the others of the ‘truth’ on governance (Richardson, 2007). Hence, inclusion is also assessed by analysing the in- or exclusion of topics and the motives of stakeholders to do so.

Framing is an integral part of uncovering inclusion. It reveals how words serve as ideological frameworks that can harbour organizing, structuring, ideological and symbolic functions (Reese et al., 2001). Discourses frame problems, issues or subjects by distinguishing or making explicit some aspects of a situation rather than others (Hajer, 1993). In line with Hajer, Lidskog et al. argue that governance actors ascribe characteristics to issues that should be governed. This way they make assumptions about certain remedies, required knowledge and the distribution of responsibilities (Lidskog et al., 2011). Drawing from Lidskog et al. (ibid), this could lead to the exclusion of other stakeholders and topics. To exemplify the significance of framing, Osherenko (2007) notices the emergence of concepts such as “intergenerational equity”, and the little place left for other concepts such as “ownership”. She notes that this reflects the new discourse on ocean governance that is reshaping the uses and meaning of the ocean (ibid). The inclusion of topics and stakeholder involvement is thus subject to framing, and ultimately reflect discourse.

3.2 Conceptual model of discourse

The four components together reflect discourse. Figure 1 shows how they fit into a conceptual model. Ultimately, uncovering these central discourse components enables me to answer the

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main research question. One might interpret these four components as distinctive when looking at Figure 1. The analysis will however show that these components are in fact closely intertwined.

Figure 1. Conceptual model of discourse and its components

Inc lu sio n St ak eh o ld er s Topic s D is cou rs e Practices instruments actions Institutions Images principles values

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4. The context of governing areas beyond national jurisdiction

In this chapter I aim to contextualize this thesis. First, I outline the conceptual, geographical and jurisdictions definitions of ABNJ and the areas within in section 4.1. Section 4.2 highlights its main environmental crises and governance challenges these areas are subjected to. Section 4.3 clarifies on the current governance framework of ABNJ that is tasked with the governance of these challenges.

4.1 Geographical and jurisdictional definition of ABNJ

In this section, the conceptualization and definition of the areas that fall under ABNJ, namely the high seas and the Area, are described. There is however a lot of contrast to be found on the conceptual definition and jurisdictional and geographical demarcation of the areas within the ABNJ. There is an array of conceptual and geographic definitions to be found for the high seas and the Area in the literature. For example, the high seas have been defined as: “the water column beyond an EEZ, or the territorial sea where no state claims an EEZ” (FIELD, 2012, p. 9). Contrastingly, another defines the high seas as: “the waters and seabed beyond national jurisdiction” (Ban et al. 2014). Yet, one first needs to know what an EEZ is before going further into the complex definitions of the high seas and the Area.

Within the context of this thesis, the definition of the Exclusive Economic Zone (EEZ) is based upon its definition as it is agreed upon in UNCLOS and its implementation agreements in 1982. The EEZ is defined as the part of the sea within the sovereign jurisdiction of a coastal State extending to a maximum of 200 nautical miles from its baselines, including the continental shelf (UN, 2012). The coastal State exercises sovereign rights of their EEZ for the purpose to explore, exploit and manage all living and non-living natural resources above and on the seabed and its subsoil, i.e. the continental shelf (ibid). Next, she may exercise controlling measures over the so-called contiguous zone, which extends to a maximum of 24 nautical miles (ibid). Also, she can exercise sovereign rights over its territorial waters, extending to a maximum of 12 nautical miles (ibid). In exceptional cases, the outer limits of the continental shelf may, with the permission of the Commission on the Limits of the Continental Shelf, be extended beyond the 200 nautical miles radius (ibid). The EEZ, thus, is a geographical, jurisdictional and territorial maritime zone within the control of a State (see Appendix 1).

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The seas beyond the EEZ are considered the high seas, where States enjoy freedoms as provided in the UNCLOS implementation agreements. The high seas are defined as: “[…] “all parts of the sea that are not included in the territorial sea or in the internal waters of a State” (UNCLOS, 1958). To make matters complex, the Area is also part of the ABNJ but resides beneath the high seas and its water column, comprising of the: “deep seabed, ocean floor and subsoil thereof” (FIELD 2012, p. 10). The definition and boundaries the high seas and the Area thus play a significant role within ABNJ governance, as they seem to conceptually and geographically divide the ABNJ into two horizontal separate zones (see Appendix 2). The analysis will show that this distinction is not as self-evident as it may seem now. Nonetheless, the high seas and the Area are jointly referred to as ABNJ in this thesis to avoid confusion.

4.2 Ecosystem crises: complexities and challenges

This section highlights the most prominent and urging influences and governance challenges on the ABNJ. It should however not be treated as a complete storyline on the crises on ABNJ. Elaborating on the current human impacts and other environmental threats is not as much as a focus in this thesis as it is on the governance processes that underlie them. This consideration has led me to choose to describe a shortened version of the crises on ABNJ. In this section, I will highlight how the ecosystems of the high seas and the Area are exceptionally prone to both internal and external stressors and the governance complexities that surround them.

4.2.1 Impacts on marine biodiversity

In a relatively recent report on global fisheries, it was reported that eighty-seven percent of the global fish stock is fully- or overexploited and/or depleted (FAO, 2012). Within these percentages, the fish stocks in the high seas are the ones most affected (FAO, 2007). These fish stocks are highly migratory and/or straddling and include species tuna, or tuna-like species, oceanic sharks, pomfrets, sauries and dolphinfish (UNGA, 2016). These highly migratory and straddling species: “do not adhere to man-made boundaries; many exist within national jurisdiction as well as in the high seas and seabed “Area””(UNEP, 2006 p.9). In particular, target species like the highly migratory and straddling Pacific blue fin tuna is overfished due to ever-increasing demand, overcapacity, poor management, and the adverse effects of Illegal, Unreported and Unregulated (IUU) fishing (FAO, 2012 in Gjerde, 2013). IIUU fishing thrives on weak governance, violates fishing laws and fishes without or misuses

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the flag of a country (OECED, 2006). In particular, vulnerable species in the high seas such as sharks are threatened by unregulated activities like shark finning (FAO, 2012).

A vast amount of the deep seabed and its impact on life on Earth is unknown, as “we know more about the surface of the moon than of the bottom of the deep oceans” (UNEP, 2006, p.10). The remoteness of deep-sea habitats such as seamounts, cold-water coral formations and hydrothermal vents, which together are considered the largest source of biodiversity on Earth, obstructs the expansion of much-needed knowledge on this area (FIELD, 2012). In turn, the deep sea and its natural cycles and structures remain poorly understood (Longmore et al., 2014). Some argue that the impacts of human activity on the deep seabed are still limited due to hurdles in technological development due to its remoteness (Marrie et al., 2014). However, these hurdles should not be viewed as static. Marine biodiversity in the ABNJ is under increasing threat, since the human footprint on the ocean is expanding (Gjerde & Rulska-Domino, 2012). Within the context of this thesis, marine biodiversity is defined as: “[…] the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems” (UN, 2004).

Biodiversity is an essential notion within marine ecosystems; they for example provide resistance to stressors like climate change (Isbell et al., 2015). Human activity affects both the marine biodiversity in the water column through for example overfishing and within the deep seabed through activities such as bottom trawling (Murombo, 2007). For example, the impact of bottom trawling on benthic communities, i.e. small organisms such as sponges and worms that live in and on the bottom floor, is thought to be widespread (UN-EPA, n.d.). The impact of human activity on the water column and the deep seabed in ABNJ seems interconnected, as it affects the marine biodiversity of the ecosystem of the ABNJ as a whole. In ABNJ, marine genetic resources (MGRs) are of value to both the biodiversity of the ecosystem they reside in and the humans that discover them. MGRs are defined as the “genetic material of actual or potential value” (CBD in UN, p. 3, 2004). These MGRs, such as deep-sea vertebrates, - invertebrates and microorganisms, are at the heart of biodiversity in areas beyond national jurisdiction and are increasingly revealed for their potential to research and commercial use (Blaustein, 2010). In accordance with Blaustein (ibid), the question that arises here is how we should govern both the conservation and exploitation of marine biodiversity, in particular the highly valuable MGRs.

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Threats to biodiversity in ABNJ (BBNJ) also arise out of the unintentional damaging to large mammals and other marine organisms. For example, oil companies generate substantial noise in deep waters because they use equipment that causes disrupt (Stocker, 2015). The seismic guns they use severely disturbs communication between whales (Simmonds et al., 2004). Other adverse impacts on the seabed are spent engine (SE) oil of shipping into the deep-sea sediment (Kumar, 2014) and deep seabed mining. The latter activity is aimed at exploiting mineral resources, such as copper, zinc, gold and manganese (Schmidt, 2015). These highly valuable mineral resources lay scattered under the waters of the Pacific, Atlantic and the Indian Ocean (ibid). According to Jakobsen and Luck (2016), the expanding possibilities of deep seabed mining require strengthening of the legal framework to minimize or avoid environmental damages in these areas. These damages could for example be the stirring up of (toxic) plumes that smother benthic organisms (ECORYS, 2014). Yet, scientific uncertainty still exists on the scope and severity of these kinds of damages to the ecosystem (Schratzberger, 2002; Duplisea et al., 2002; Denderen et al., 2015).

The ABNJ and its organisms could also be increasingly adversely affected by the continued rise in anthropogenic greenhouse gas emissions, which in turn lead to ocean warming, ocean acidification, sea-level rise and the expansion of oxygen-depleted zones (IPCC, 2014; Sperling et al. 2016). For example, the adverse effects of climate change seem to alter the migration pattern of the highly migratory tuna. This declines their population and pushes them to higher latitudes further out into the high seas (Worldbank, n.d.). In turn, they are more prone to IUU and move out of reach for Pacific Island nations that rely heavily on them for their livelihoods and economies (Hauck, 2016). The above-mentioned climate change impacts and other adverse impacts from human activities create a complex and possible extensive threat to the biodiversity in the ABNJ (Jobstvogt et al., 2014).

Marine biodiversity thus appears to be subject to both intentional and unintentional impacts, on which uncertainty regarding their extent however currently still exists. One of the governance practices that could counteract or avoid the adverse affects on marine biodiversity is a Marine Protected Area (MPA). An MPA is a defined area in the marine environment wherein the ecosystem enjoys a higher level of protection than its surroundings by being reserved through legal mechanisms or other means (Scott, 2012). As the analysis will show, this governance tool however poses complexities in both its designation and outcomes.

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4.3 Responding to the crises: the current governance framework

According to Töpfer et al. (2014), the international discussion on marine biodiversity in areas beyond national jurisdiction has the potential to transform the global ocean governance towards sustainability. They, however, stress the sensitivity of this global process to failure, taking into account the possibility of meaningless, unsuccessful and fragmented negotiations (ibid). To what extent this sensitivity reaches, will be researched in the coming analysis. For now, highlighting the key agreements and institutions in a chronological order serves to give a general overview of ABNJ governance in the years prior to the new Agreement. In the context of this thesis, an agreement implies a broad multilateral instrument that is less formal than a treaty and is agreed upon internationally (UNEP, 2007). This section will describe the most influential agreements and institutions prior, during and after UNCLOS went into force in the nineties. I deem this contextual sketch of essence because it will allow me to interpret the outcomes of the analysis into both its historical and contemporary context of governance. This connection between theory and analysis is a crucial process within this thesis, for a critical discourse analysis should pay attention to both (see Chapter 3).

4.3.1 The early stages of governing ABNJ

The speech of UN-ambassador Arvid Pardo in 1967 symbolizes the starting point of the growing recognition for the ABNJ and its governance in the previous century. He stressed the need for “an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction” (IISD, 2007). His speech triggered a process that would lead to the creation of several institutions and agreements on ABNJ (ibid). It gave way to the creation of the UN-Seabed Committee “to study the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction” (Winthrop Haight, 1968, p.22). It also laid the foundations for the Stockholm Conference on the Human Environment in 1972 and the implementation agreements of UNCLOS in 1994 and 1995 (IISD, 2007). The following paragraphs will describe these influential governance processes that followed after Pardo’s speech in 1967. In particular, I focus on the governance process that is of most significance to this thesis, namely UNCLOS and its implementation agreements of the nineties.

The Stockholm Declaration on the Human Environment of 1972 is an international declaration that is generally seen as the act of birth for modern international law on the environment (Handl 2012; Francioni & Bakker 2014). In this declaration, the term

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‘environment’ was introduced to replace the term ‘natural protection’. Francioni and Bakker however argue that this replacement should not only be considered a mere terminological change. Instead, it should be viewed as a transformative step reflecting the change to perceiving the environment as a space for all life including humans and their activities (ibid). In line with Francioni and Bakker’s interest in the significance of language-use in environmental governance, I am going to look for similar significant changes and persistence in language use in ABNJ governance. The Stockholm Declaration is thus not only an influential agreement on environmental governance, but also an example of the significance of language use within governance.

The Stockholm declaration also adopted several principles that were applied to international environmental law (Robinson, 2009). These principles elevated environmental law from private - and individual law onto the rank of public international law, thereby concerning the protection of the general interest of the international community as a whole (Francioni & Bakker, 2014). The global awareness of the human impact on the ABNJ was institutionalized in Principle 21 within the Stockholm Declaration. This principle ensures the responsibility of states to not cause damage to ABNJ with their activities within their jurisdiction or control (ibid). In turn, this principle led to the protection of the general interest of the international community that is concerned with the well-being of ABNJ (Handl, 2012). It is considered a milestone in recognizing the need to comply with international environmental law and the acknowledgement of the global human impact on the ABNJ (ibid).

4.3.2 Key agreements under UNCLOS

The agreement that was negotiated on almost directly after the Stockholm Declaration and was agreed upon roughly ten years later in 1982 is UNCLOS. This agreement is to date considered as the main legal and institutional framework for human activities within ABNJ. UNCLOS opened for signature in 1982 during the Third UN Conference on the Law of the Sea and its implementation agreements entered into force in 1994 (UNEP, 2009). The following implementation agreements under UNCLOS are particularly significant in the past and current governance framework of ABNJ. Part VII within UNCLOS is provisioned to target the high seas (UN, 2012). It agrees that: “the high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for