François Simard, secretary of the Indian Ocean Expedition Advisory Committee, gives an update on the governance issues of the Saya de Malha Bank. Exclusive Economic Zone, Law of the Sea, joint management, … an opportunity to see a little more clearly and to realise the importance that the results of the scientific investigations carried out during this expedition may have for future decision-making.
The challenges of governing Saya de Malha
This immense bank, located more than 300 km from the first submerged land and as large as Switzerland, is subject to a unique governance, a result of the complexity of the Law of the Sea. Located outside the exclusive economic zones (EEZs) of the nearest countries, which are the Seychelles to the northwest and Mauritius to the south, it is therefore on the high seas. But Mauritius and Seychelles, in accordance with the possibility offered by the Law of the Sea, have applied to extend their legal continental shelf to include the Saya de Malha.
Unlike other countries in similar cases, i.e. with a common continental shelf, they did not wish to establish a delimitation but declared a joint extended continental shelf. For its management, they have declared a Joint Management Area (JMA) and created a Management Commission. However, the water column, which is not included in the notion of continental shelf, remains on the high seas!
Saya de Malha is therefore under a dual governance status, with the seabed and its resources under the joint governance of Mauritius and Seychelles on the one hand, and the entire water column and its resources under the high seas regime on the other. As regards potential oil, gas and mineral resources, the two island countries will have to find very robust cooperation mechanisms to agree on a common vision, define a common strategy, carry out exploration and exploitation together if necessary, and share the benefits For tuna fishing, the Indian Ocean Tuna Commission (IOTC) is in charge. This regional fisheries management organisation (RFMO), with its 28 members and 30 years of experience, and of which Mauritius and Seychelles are members, will remain the decision-making body. For benthic fisheries, as for tuna, there is a dedicated RFMO for this part of the high seas, the Southern Indian Ocean Fisheries Agreement (SIOFA), created in 2012, with 11 members including Seychelles and Mauritius. Logically, it is APSOI that should take decisions on the management of bottom fisheries on the Malha Saya, but with JMA responsible for the management of bottom resources under the extended continental shelf, it is questionable as to which is ultimately the right governance body for the benthic living resources in this area. For fish, the logic would be that they do not belong to the bottom resources, being able to move away from them, and therefore fall under the governance of SIOFA. For other species, such as sea cucumbers, which are one of the species of interest to Seychelles fishermen, it is arguably up to the JMA Commission to take decisions on the management of this resource. Here again, the two countries concerned will have to agree and coordinate to avoid any kind of conflict. That said, as each of these governance structures is rather jealous of its prerogatives, it is not clear that the sharing of responsibilities will be so easy!
As far as the conservation of sites and in particular the creation of marine protected areas is concerned, each of the actors can make a declaration according to their own competence. But if Mauritius and the Seychelles decide to create a marine protected area on the Saya de Malha seabed, it is hard to see how APSOI could ignore it, especially as both countries are members. However, future decisions will have to be based on the best scientific data available. On board the Agulhas II, research is being carried out both on the bottom and in the water column, but not on the shallow end, i.e. the seabed. In its wisdom, the expedition management decided that all the information collected during this campaign will be public (open access), so that the different stakeholders, Seychelles, Mauritius, JM, IOTC or SIOFA will have access to it and will be able to use it. And it will be up to the two countries “bordering the sea” to defend their rights in this ocean of international complications!
Secretary of the Indian Ocean Expedition Advisory Committee. Previously Deputy Director of the IUCN Marine and Polar Programme.