Principles and practice for the equitable governance of transboundary natural resources: cross-cutting lessons for marine fisheries management

Conflicts over the equitability of transboundary natural resource conservation and management schemes have created barriers to effective policy implementation and practice. In seeking to overcome these barriers in the context of progressing transboundary oceanic fisheries conservation, we explore the divide between equity as defined in principle and as applied in practice in international policy and law. Searching for cross-cutting lessons and themes, we first review multilateral environmental agreements to see how equity is commonly being defined, understood, and then applied in principle. From this analysis, we identify common elements that can facilitate the conceptual framing and application of equitable principles in practice. Framed within these elements, we then explore how applications of equitable principles have performed in two current transboundary conservation and management case studies in regional fisheries management and international climate change policy. From this analysis, we conclude with some lessons learned which show that finding solutions to equity-driven barriers to transboundary conservation, while challenging, are well within our existing capacity to develop and execute.


Introduction
Oceanic fisheries conservation and management agreements have broadly promoted benefit-driven, cooperative, and inter-generational approaches to resource use for decades. This is also the case for other transboundary terrestrial natural resources such as forests, rangelands, river basins, and clean air. These inclusive approaches are Understanding what makes one conservation or management scheme a success in practice while another fails is a broadly-recognised challenge in the complex and integrated whole of human and natural systems; i.e., social-ecological systems (SESs) (Berkes and Folke 1998). In terrestrial systems, a growing body of research recognizes that critical linkages between many of the successes and failures of environmental conservation action in SESs lie in the ability to relate key human social interactions to conservation outcomes (Gunderson et al. 1995 One key social interaction is the behaviour of resource stakeholders in response to the perceived fairness, or equity, of a given conservation and management scheme. These stakeholders are individuals, groups, or nation States with a direct interest in an environmental good or service. They can affect or be affected by the actions of others with similar interests. Global asymmetries in wealth, power, capacity, and need mean that the benefits and costs associated with tackling transboundary sustainable resource management and conservation challenges are experienced disproportionately among these diverse stakeholders. This disproportionality is acutely felt in the distribution of income, revenue, and livelihood cost burdens associated with imposing and observing limits on scarce and shared resources. In turn, this can create conflicts between stakeholders throughout the natural resources. These conflicts are capable of creating a genuine barrier to achieving timely and effective conservation outcomes.
While different shared transboundary resources have evident physical differences and exist across scales of governance, they can still share similarities in their broader human use characteristics. In seeking innovative solutions to these barriers to conservation, it is worthwhile exploring the efforts to equitably manage and conserve in broadly similar transboundary resource use environments. Pursuing one of many potential avenues of investigation in this regard, this paper focuses on shared transboundary resource use at an international, nation State-level scale. By applying an international law and policy perspective, it may be possible to identify valuable conceptual parallels, differences, and insights from analyses of principles in international law and shared conservation and management efforts. Analysis outcomes could in turn inform the further discourse necessary to develop more robust and equitable resource policy and governance arrangements.
We apply this perspective to explore two international transboundary resource use case studies that are currently grappling with equity issues as a barrier to their effective conservation and management. The first case study looks at the regulatory efforts made to equitably conserve and manage shared and highly migratory transboundary oceanic tuna stocks in the Western and Central Pacific Ocean (WCPO).
The second case study provides a useful counterpoint from outside the maritime domain and briefly examines international regulatory efforts to equitably abate European greenhouse gas (GHG) emissions. Setting up the context for this analysis, we first look at how equity's concepts are being defined, understood, and then applied in international environmental resource law and policy. Shifting from principle to practice, we then focus on comparing the regulatory efforts of both case studies. This analysis is followed by a discussion of some of the 'lessons learned' from these approaches, with a particular focus on applications in transboundary marine fisheries management.
Defining equity: how do we know when 'fair is fair'?
Concepts of equity, also interchangeably referred to as 'fairness' (Franck 1995;Shue 1999;Soltau 2009), have played a role in shaping human social norms for millennia.
These social norms are the customary 'rules' that govern both prescribed and proscribed behavior in a given societal group and in a given social context (Bicchieri and Muldoon 2014). Common terminologies associated with 'lay' definitions of equity include 'non-discrimination', 'fairness', 'impartiality', and 'playing by the rules'. Bronfenbrenner (1973) (Shelton 2007). These international laws and regulatory policies provide a commonly accepted operational framework for addressing cooperation, compliance, and the appropriate use of international transboundary resources.

Equity concepts in international environmental law
While direct references to equity are few, much of the 'equity-themed' language in major terrestrial and aquatic MEA's refers to a need to avoid exacerbating the contextual disparities in circumstance between developed and developing countries Some MEA's recognise that equitable international policy approaches should take specific vulnerable groups into account. For example, the United Nations "Fish Stocks Agreement" Art. 24 (1, 2) (UNFSA 1995) requires parties to take into account the special requirements of developing States when adopting conservation and management measures, with particular references to food security, dependent and indigenous communities, and the need to ensure that measures do not transfer disproportionate burdens of conservation action on to developing States.
Equitable concepts are also present in international dispute settlement, but have yet to be exercised in practice (Shelton 2007 Core elements of equity in transboundary natural resource policy Responsibility, rights, and justice intersect to frame discussions about what equity is understood to mean in a given context and by whom, how it is used to inform decision-making, and why a given action, outcome, or context is considered 'equitable'. This section focuses primarily on the distributive dimension of these elements. Responsibility plays a critical role in apportioning accountability and assigning blame for action or inaction in resource conservation and management (Ringius et al. 2002).
Assigned responsibility (i.e., a term which is generally synonymous with obligation or duty in international environmental law and policy) is associated with established international legal obligations such as 'duty of care' (Arbour 2008;Müller et al. 2009), a 'duty to cooperate' (e.g., such as through 'good neighbourliness' principles), a duty to avoid causing harm (e.g., such as through the precautionary principle) or to remediate harms (e.g., such as the polluter pays principle), a duty not to intervene in the domestic affairs of other States, and a duty to fulfil agreed-upon commitments 'in good faith' (United Nations 1970). Responsibility requires States, through the application of these international legal principles, to reconcile potentially incompatible or damaging interests peacefully and in good faith, and to remediate when harm has already taken place through their actions.
Rights represent a guarantee of freedoms and entitlements as well as of permissible actions (Wenar 2011). A product of prescriptive social norms, the 'rules' of rights interact with the 'rules' of responsibility to assist in procedural and substantive interpretations of what is 'fair' in a given context.
Looking at legal rights of conduct in an international transboundary resource context, the rival and often non-excludable nature of shared resource use means that clear stakeholder rights of privilege, power, claim, and immunity (for more on these

2008).
Distributive justice supports the notion of 'fair-sharing', 'equitable utilisation' and "fair equality of opportunity" (Rawls 1999). It is "concerned with the distribution of the conditions and goods which affect individual well-being" (Deutsch 1975).
Distributive justice also guides the procedural relationship between the equity of a decision-making process and the perceived equitability of its outcome; acting equitably in this context may include procedural duties to notify and consult (Shelton 2007).
It is not uncommon for equity and equality to be thought of as one and the same (Bronfenbrenner 1973;Parson and Zeckhauser 1993;Shue 1999;Ringius et al. 2002).
While related, these concepts have some critical distinctions. Sovereign equality is a basic principle of international law. In context, this principle recognises that all States have both the sovereign right to exploit their domestic natural resources without 'outside' intervention and the responsibility to be 'neighbourly' by not abusing that right and engaging in activities that result in harm to areas beyond their jurisdiction (Shelton 2007).
Formal equality is an objective concept whereby the same unit of responsibility for costs (or the same right to be protected from costs) is distributed evenly amongst all stakeholders without discrimination (e.g., allocation per capita). Imposing equal units of responsibility onto equal subjects of law may be judged as just in some contexts, but it may not be socially just if the differences between these subjects are such that disparities in individual (dis) advantage are exacerbated. An equitable approach in such circumstances might entail "the appropriate treatment of unequals in view of the differences between them" (Bronfenbrenner 1973), and seek substantive equality between stakeholders through a range of mutually acceptable differentiating criteria.
A number of criteria have been identified by scholars as justification for differential treatment in conservation cost and benefit allocation (Parson and Zeckhauser 1993); these include capacity, need, entitlement, power, strict equality, 'greatest good', and 'just desserts' (Deutsch 1975 These claims operate under the rationale that the use rights of some parties, or their right to be protected from certain burdensome costs, might 'justly' warrant prioritisation over those of others if doing so leads towards greater equality of opportunity among stakeholders. Need-based claims illustrate the conceptual difference between formal equality and equity in the just distribution of resource burdens and benefits. It is in trying to address these differences in a way that is seen as appropriate or 'just' to a given context that the procedural rules of distributional equity are developed.

Equity: parameters and process
The presence of equity language in decades of international environmental agreements and case law indicates that this multi-faceted concept plays an accepted, established and widespread role in addressing shared resource conservation and management challenges. From a governance perspective, therefore, the crux of the current debate in resource policy does not lie in the principle itself but in how it is applied. Resource stakeholder responsibilities, rights, and interests are complex, political, and often at odds with each other -finding equitable approaches in such a space is an understandable challenge. For example: who decides what 'fair' means in a given burden or benefit distribution context and with what criteria and authority? A more structured and consistent process that identifies the relevant parties and conservation goals, and then discusses the relevance and role of equity in resolving the issue at hand could improve the transparency, accountability, and acceptance of resource policy processes and conservation outcomes. Thomas Franck was a proponent of this more procedural approach to conceptualising equity, concluding that equity "captures in one word a process of discourse, reasoning, and negotiation" (Franck 1995). Responsibility, rights, and distributive justice provide important structural underpinnings to any such process.
This 'equity process' could be integrated into regular policy negotiation processes.
Requiring negotiating stakeholders to be accountable to basic procedural questions nested within the conceptual framing elements of responsibility, rights, and distributive justice could provide a more consistent and transparent means of scrutinising both individual and collective stakeholder contributions to common conservation goals (Fig. 1). Depending on the mechanisms and processes used to solicit the required inputs in context, the end result of this more structured process could help to clarify 'true' conservation barriers. This could mean that discrepancies between expected principle (i.e., what is laid out and agreed to in international agreements and customary law) and observed in practice (i.e., how States apply or avoid applying these principles in their own interest) become clearer or it could help reveal which 'core subsystems' are affecting each other vis à vis achieving individual versus common goals (i.e., see Ostrom 2009). Such a process could also inform the development of operational criteria for implementing equitable conservation and management schemes. Conceptual procedural framework for supporting equitable approaches to conservation and management. This framework process begins by defining a given situation and clarifying its key elements using the framing parameters of responsibility, rights, and distributive justice. The initial stage of this process explicitly identifies who has a stake in the resource (i.e., who shares accountability for outcomes), what freedoms they have with regard to resource use or protection (i.e., by what right is a 'stake' asserted and on whose authority), and how the benefits or costs resulting from these freedoms are allocated. As key procedural decision-making elements are discussed and clarified, the process is guided inwards towards a common and situation-specific equitable approach Equitable approaches in practice With this conceptual framework in mind, the following section looks at two case studies that are illustrative of the current tools being applied to more equitably address transboundary conservation and management allocation challenges around conventions, and institutions that support regional cooperation among sovereign States while pursuing the 'higher goals' of fisheries governance espoused in international agreements.
At the most basic level, the right of State sovereign equality forms the basis of the principles and standards established for the conservation, management and exploitation of transboundary fisheries in RFMOs. This right, backed over time by principles of international law and case precedent, allows a State the exclusive right of privilege to undertake resource use activities in their own territory, to oblige other States not to infringe upon this right against their will, and to require other States to enter into contractual agreements to extend their rights into another State's territory.
The articulation of these sovereignty principles to include natural resources occurred during a period of de-colonisation in the late 20th Century, when newly emergent developing States sought to re-assert control over their territory's natural resources  In December 2014, the WCPFC once again discussed these concerns, but again failed to reach agreement at a meeting that was widely described as contentious and difficult While the WCPFC has made some progress towards identifying the tangible national impacts of regional tuna fishing with greater transparency, no criteria have as of yet been determined for assessing, or more equitably distributing, these impacts. To overcome this current political impasse, it is evident that further dialogue is needed to better define the responsibilities, rights, and distributive justice of burden and benefit allocation (Fig. 2). The EU ETS is representative of a market-based 'cap and trade' instrument endorsed by the widely-ratified United Nations Framework Convention on Climate Change (UNFCCC) (UNFCCC 1994). The relative popularity of an ETS as a conservation tool comes from its capacity to limit access to a common-property resource through the creation and allocation of private use rights, to shift the cost burden of pollution control efforts from the controlling authority to the polluter, and to reconcile seemingly incompatible economic growth and conservation objectives using a flexible and transparent market-based operating framework (Tietenberg 2006).
ETSs require significant negotiation and cooperation among participants in order to succeed in practice. While the argument could be made that this makes them cumbersome and slow, the same could be said for any process requiring international agreement to proceed. ETSs beneficially provide a framework and a platform to identify and discuss the role of equitable approaches to conservation outcomes. In a The effort to identify, discuss, and then apply equitable approaches in context are reflected in the relative completeness of the conceptual procedural framework (Fig. 3).
This indicates that considerable critical dialogue has already taken place and that processes have been established to support equitable approaches to emissions abatement. Additional dialogue could however be directed towards how framework elements might change over time, what processes might also need to change in order to remain equitable, and whether the goals driving these equitable approaches are actually being met to satisfaction.

Fig. 3
Conceptual procedural framework for supporting equitable approaches to CO2 emissions abatement schemes in the EU Despite the many distinct incorporations of equity into the EU ETS and its decadeslong ability to sustain cooperative international discourse, this instrument's overall success at meeting overarching atmospheric conservation goals is the subject of debate and criticism. Key criticisms include a lack of ambition over overall abatement targets, poorly-executed initial permit allocations leading to poor market performance, overuse of exemptions, and system vulnerabilities to political interference (Tonn these analyses is that more innovative thinking is required to more successfully address the transboundary conservation challenges of the day, and that equitable approaches must play a role in this success.
Regional marine fisheries in the WCPO and atmospheric GHG emissions in the EU are physically different resources, with different geographies, stakeholders, and subnational policy pathways for the implementation of compatible measures. Indeed, further critical analysis is needed to address the horizontal and vertical governance challenges of implementing more equitable approaches into compatible sovereign State measures. At the international level, however, many of the conservation challenges of these two resources, and the way decision-makers are trying to address these equitably through existing international law and policy frameworks, share some striking similarities.
Here, we address four of these similarities: 1) In both cases, there are overarching international legal agreements and precedents that can inform the general understanding and use of equitable concepts in transboundary conservation and management; 2) Both face challenges to the operationalization of these concepts due to insufficient guidance by these same agreements and precedents, as well as by the selected conservation tool; 3) Both rely on regional governance arrangements to coordinate the activities and actions of sovereign States and to provide a consensusdriven forum to address common goals and issues; 4) Both incorporate equitable principles into their different conservation schemes; despite this, both still face key difficulties in adequately addressing willingness and ability to pay for conservation.
With regard to the first similarity, applications of equitable concepts in international law have persisted for decades despite the strong debate over and lack of 'unifying' definition for equity. These precedents, such as the principles of good neighbourliness, sovereign equality, and ability-to-pay, as well as international legal precedents relating to watercourse use, fisheries jurisdiction, and maritime boundaries establish a template for equitable transboundary resource benefit distribution across diverse stakeholders and under a number of different scenarios.
However, as the second similarity indicates, there remains a critical divide between intent and outcome in these two different transboundary resources. This highlights a need for both resource use stakeholder groups to actively engage more meaningfully with each other to clarify roles, responsibilities, and rights of conservation action in context. This engagement must also consider a mixed, multi-principled approach to equity that adequately accounts for differing perspectives on distributive justice.
Cooperative development of consistent decision-making processes (e.g., such as Fig. 1) that identify the 'boundaries' of equity in a given context could help avoid the endorsement and application of inadequate or contradictory principles that lead to inequitable (or non-existent) conservation outcomes in practice. The third similarity notes the presence of regional governance arrangements to coordinate the activities and actions of sovereign States and to provide a consensusdriven forum to address common goals and issues. In addition to being supported by the diverse stakeholders themselves, equitable approaches to conservation also rely on a complex interaction of domestic and international support from institutional, political, and financial structures. An overarching mediating authority provides the 'common ground' and guidance necessary for addressing "institutional ambiguities" (van Tatenhove 2013) and what Wallace (2000) describes as a "swinging governance pendulum" of supranational, intergovernmental, and national arenas.
Regional arrangements also provide a platform to create regulatory policies that clarify the overarching rights and responsibilities of current participants as well as of potential future new entrants. It is worth considering if these particular schemes would have succeeded to the extent that they did without the support of such regional structures.
The fourth similarity between the WCPFC and EU ETS case studies is that an appropriate treatment of willingness and ability to pay remain a key stumbling block to the successful realisation of desired conservation outcomes. This is despite efforts to incorporate equitable approaches into both conservation scheme frameworks. The capacity and will of stakeholders to act in a prescribed way for the common benefit while taking on individual costs is critical to the ultimate success of conservation schemes. In most cases, a developing country will simply not have the same capacity to pay for remediation, abatement, and compensation costs as a developed country regardless of its contribution to the problem or level of enthusiasm for a shared conservation goal. This issue of capacity is why developed States are given a more explicit responsibility to 'take the lead' in addressing shared conservation challenges in international law.
With regard to will, those being asked to take on the costs of conservation must have a sufficient ownership of the perceived problem in order for cooperative conservation schemes to attract the necessary support, or willingness-to-pay, for successful actions and outcomes (Spiteri and Nepal 2006;Wunder 2007). This ownership is linked to the effective establishment of rights, not just in the sense of physical property boundaries, but also in the deliberation of responsibility for burden and benefit

2012).
Even when there is sufficient willingness to pay among stakeholders to drive conservation action, both the above case studies and examples in PES literature indicate that a successful transboundary conservation scheme should also be accompanied by appropriate institutional, regulatory, and financial support mechanisms (Börner et al. 2010;Clements et al. 2010). These support mechanisms contribute to the perceived value and equity of conservation service delivery (Spiteri and Nepal 2006). In this regard, voluntary and compensation-based conservation schemes have generally been viewed as more equitable at least in transboundary terrestrial conservation contexts (Wunder 2006). This analysis of two case studies does not claim to represent the complete range of issues faced by transboundary resource managers. However, their similarities indicate that they are representative of many of these issues; as a result they yield some broadly relevant insights to transboundary resource conservation in general. With regards to transboundary marine fisheries, however, what are some of the relevant takeaway lessons to help inform more effective and equitable conservation policies?
First, if the complexity of equity issues in both case studies is indicative of transboundary conservation issues more generally, the successful conservation and management of highly migratory and shared transboundary fish stocks will require a mixed but coordinated approach to operationalising equity more broadly into practice.
This mixed approach will likely need to include a combination of binding and voluntary management measures to account for State sovereignty rights while encouraging "willingness-to-pay" compliance. Such approaches will first need to engage more strongly and transparently in marine policy discussions that clarify the rights and responsibilities of unequal stakeholders in a "common but differentiated" way. These conversations have begun in the WCPFC in their implementation of WCPFC 2013-06 and exemption clauses, but the first is incomplete, and the second as currently applied is arguably undermining overarching conservation goals. The WCPFC, as well as other RFMOs, may wish to consider how creating a separate burden sharing arrangement process, such as was undertaken for the EU ETS, might be helpful in separating out some of the technical conservation decisions from the political ones. Second, regional institutions like the EC and RFMOs (and others like transboundary river basin authorities) provide an arguably indispensable common platform for more integrated 'common ground' in a complex legal and governance environment.
Regional institutions not only provide the framework for transparent supervening guidance in a complex and dynamic decision-making environment, they are also capable of pooling together stakeholder competencies and decision-making processes in an otherwise fragmented international policy arena (van Tatenhove 2013). While RFMOs have received criticism for their lack of effectiveness in delivering on overarching conservation goals (Cullis-Suzuki and Pauly 2010), it is worth speculating how far international transboundary fisheries management and conservation would get without these institutions.
The reality of managing transboundary fisheries, or any transboundary resource for that matter, is that difficult and contentious decisions will need to be made by those tasked with the responsibility of conservation decision-making. Effective conservation actions imply trade-offs, with greater costs borne by current generations for the potential benefit of future ones. Conflicts over shared resource use and barriers to conservation are likely to persist without greater collective efforts to define, and then respond to, the key elements of responsibility, rights, and distributive justice that successfully drive equitable conservation and management in both terrestrial and marine environments. This paper illustrates that even without a concise definition of equity, the precedents and tools already exist to generate more equitable solutions to shared resource use problems. Developing and negotiating the necessary refinements for greater success in transboundary fisheries management is indeed well within our collective capacity.