Chapter 15 The Law of The Sea and Its Institutions: Today’s Hermeneutic Approach and Some Suggestions For an Ocean-Centred Governance Model

The Chapter answers to the following research question: what is the more effective institutional framework that in ocean governance can respond to climate change threats from a regulatory viewpoint? The methods adopted to answer combine the interdisciplinary analysis (of the concept of institutions) with a critical analysis of Western-based literature and a commentary on the indigenous research on the centrality of the ocean in the investigation. The underlying urgency of this investigation lies in the hypothesis that law of the sea and ocean governance, in the context of climate change, require changes at the ontological, institutional, socio-ecological and system levels. The oceans, coasts and marine wildlife have been deteriorating more rapidly than predicted, through loss of biodiversity and the massive increase in climate-change impacts. Current strategies for tackling climate change with the means offered by international law and the law of the sea regime have raised critical concerns regarding their adequacy, integration and effectivity in dealing with the challenges posed by environmental threats. The Chapter opens with a conceptual background on the institutional framework of the law of the sea, where decisions on the world’s seas and oceans have been the purview of states purporting to be the sole legitimate institutions in accordance with international law. This has brought an exponential increase in actors and rules, based on the (erroneously) perceived separation and superiority of states and humans over the sea. Reorienting and restructuring the ontology and the institutional framework of ocean governance towards a more effective ocean-centred system of governance in the context of ‘planetary stewardship’ is part of the research response that the chapter provides. Starting from an institutional approach, I show how an extended interpretation of the concept of ‘institution’, which includes as constituent element the socio-ecological context in which actors and rules are embedded, reaches out to other actors involved in ocean stewardship. It can contribute to the ontology of a model that better responds to climate change by taking into account the challenges of globalization, inclusion and integration of knowledge, and – most importantly – by putting the ocean at the centre of investigation, restoring the connection between oceans and humans. Such centrality contrasts with the regulatory approach of the law of the sea that emphasizes the sovereign right of the state and state-like organization towards the sea, based on the presumption of the exploitable value of the world’s oceans and seas. The hypothesis formulated to respond to the ineffectiveness of regulatory responses lies in the elaboration of holistic and integrated regulatory approaches developed around Western-based concepts and indigenous cosmologies. The first step towards integration of approaches consists in uncovering the epistemological assumption that the sovereign states, their organizations, and the rules posited by them, are the sole relevant model for the law of the sea’s institutions. Based on Hodgson’s interdisciplinary research on institutions (Hodgson, ‘What are institutions?’ (2006) JEI Journal of Economic Issues, 15 (1) March 2006, 17), the chapter proposes a re-reading of the concept, to include structures that are socially embedded, because generated by the interaction of all the actors (beyond the states: collective organizations, individuals and the ocean itself). By doing so, it reflects on the need to rethink the relationship between humans and sea in terms of connectivity, not mere superiority. Such a renewed definition not only expands the horizon of the actors involved and their mutual interactions, it also facilitates the integration of systems on a new ‘baseline’ (in the words of the indigenous scholars Four Arrows and D Narvaez, ‘A more authentic baseline’, New York, 2015), where old and newly defined institutions coexist and cooperate in an integrated manner, to protect the oceans against the adverse effects of climate change.