Using the public trust doctrine to achieve ocean stewardship

Introduction Although we depend on the ocean for food, livelihoods, energy, and transportation (not to mention global climate regulation and nutrient cycling), to date society has been largely unable to strike a balance between human use of ocean ecosystems and their long-term conservation. One reason is that the opacity and sheer enormity of ocean space challenge the development of effective governance regimes. For instance, censusing a population of fish is not as easy as counting trees; and the oceans, covering over 70 percent of the Earth’s surface and providing 99 percent of the world’s available living space, often conceal considerable illegal and overfishing and habitat destruction. In addition, an array of ecosystems, human enterprises, and complex jurisdictions inhabit the vast oceans, rendering comprehensive ocean governance at the national and international levels an often distant prospect. This contribution focuses on the rule of law for oceans and, in particular, on the 61 percent of the world’s oceans (and 43 percent of the world’s surface) falling outside national jurisdiction. This area, often called the “high seas,” raises particularly challenging problems, as laws and regulations there are generally fragmented, weak and difficult to enforce. At last estimate, high seas fisheries comprised approximately 12–15 percent of the total global marine fish catch by volume and 25 percent by value, and accounted for 13–50 percent of the value of global illegal, unreported and unreported (IUU) fishing.