Capacity Building and the Implementation of the Law of

the Sea Convention: A View from the World Bank

David Freestone*

Abstract

This paper begins by examining the role envisaged by the 1982 Law of the Sea Convention (LOSC) and by the 1995 UN Agreement, for the World Bank and the international trust funds for which it acts as trustee— such as the Global Environment Facility. It outlines the opportunities for work on law of the sea related issues, including marine science, within the portfolios of the members of the World Bank Group. Then it considers the mandate and resources of the Global Environment Facility (GEF) particularly in relation to its identified focal areas of international waters and biodiversity conservation. It looks at the evolution of the GEF International Waters portfolio and its investments in Large Marine Ecosystems and at a range of other innovative science and management projects supporting the objectives of the 1982 Convention. It outlines the development of a new portfolio in the Bank, in association with a number of partners—notably FAO and IUCN. It highlights the establishment of the ProFish Trust Fund and the Strategic Partnership for Sustainable Fisheries in LMEs of Sub-Saharan Africa (GEF/WB/FAO/WWF). It concludes that the UNCLOS III negotiators under-estimated the resources that would be needed by

* The views expressed in this chapter are the personal views of the author and should not be taken to represent the official views of the World Bank. He is grateful to Al Duda, Sara Graslund, Kieran Kelleher, Lidvard Gronnevet, Indu Hewawasam, Marea Hatziolos and Richard Barnes for comments on earlier drafts, but remains responsible for the final text. The author’s PowerPoint presentation can be viewed on the accompanying CD. This paper is an updated version of a paper previously published as David Freestone, "The Role of the World Bank and the Global Environment Facility in the Implementation of the Regime of the Convention on the Law of the Sea" in Law of the Sea: Progress and Prospect (David Freestone, Richard Barnes and David Ong, eds.) 2006 pp 308-326. Reproduced by permission of Oxford University Press. 313 David Freestone

developing countries to capture the benefits that the LOSC envisages. Since 1982 much has changed and the GEF has become a financing instrument for a number of the LOSC “global public goods” objectives and the importance of fisheries for the livelihoods of poor people has brought sustainable fisheries within the Bank’s sustainable development mandate.

Introduction After more than twenty years, the Law of the Sea Convention still stands as a massive achievement in the history of codification efforts in international law. The nine-year negotiation process crystallized important new concepts such as the , archipelagic status, and the special regime for the deep-sea bed. It created new institutions, notably the International Tribunal on the Law of the Sea, the International Seabed Authority, and the Commission on the Limits of the Continental Shelf. It also introduced important new agendas, such as protection of the marine environment, and it entrusted new roles to existing institutions (including the Food and Agriculture Organization (FAO), the International Maritime Organization (IMO), and, as Birnie has argued, even bodies like the International Commission (IWC)).1 The drafters also understood the need for the regime to be responsive to new agendas and to be integrated with the work of other organizations by recognizing the rights of States to act through “competent international organizations or general diplomatic conference” to establish relevant rules and standards2 or to work through

1 See Patricia W. Birnie, “Marine Mammals: Exploiting the ambiguities of Article 65 of the Convention on the Law of the Sea and related provisions: Practice under the International Convention on the Regulation of Whaling” in Law of the Sea: Progress and Prospect (David Freestone, Richard Barnes and David Ong, eds.) 2006 pp. 261-280. 2 See e.g., Article 21, LOS Convention. 314