2.1 Legal provisions for training programmes

As set out above, this article focuses on training programmes in law and governance that fall within a wider set of activities comprising capacity-building and technical assistance. The term ‘capacity-building’, though ‘rarely well defined’,²⁰ can be generally understood as encompassing a ‘range of formal and informal activities, actors, institutions and policy sectors, and a potentially wide variety of issues, including government legitimacy, political stability, public participation and community empowerment’.²¹ By and large, it is addressed to developing countries, as a reflection of their specific needs, special circumstances and more general global economic disparities.²² It covers, for example, the ‘readiness’ funds that have been prominent in climate change mitigation projects.²³ The term ‘technical assistance’ is also open to different uses, including ‘international transfer of know-how through training and coaching’.²⁴ Aiming at assistance to developing countries, the term evolved to ‘technical cooperation’ in an effort to emphasise and cultivate a cooperative undertaking.²⁵ It is linked with ‘technology transfer and deployment’ and ‘finance’,²⁶ terms that are also dependent on power relations within specific regimes.²⁷

Training programmes of this nature are supported in a range of new and proposed international treaties and other legal instruments. In the BBNJ example noted above, States have sought to meet their objectives on marine biodiversity by increasing, disseminating and sharing knowledge.²⁸ The new WTO Agreement on Fisheries Subsidies, which was agreed in 2022,²⁹ established a new voluntary funding mechanism in cooperation with the FAO and the International Fund for Agricultural Development (IFAD) in order to deliver targeted technical and capacity-building assistance to developing country members.³⁰

Current negotiations for new agreements reflect this trend. The zero draft of the proposed pandemic treaty also refers to training and capacity-building in several provisions, including a draft obligation for each party to ‘safeguard, protect, invest in and sustain a skilled, trained, competent and committed health and care workforce’.³¹ The resolution supporting the negotiation of a new agreement on plastics pollution ‘[a]cknowledges that some legal obligations arising out of a new international legally binding instrument will require capacity building and technical and financial assistance in order to be effectively implemented by developing countries and countries with economies in transition’.³² In an ambitious shift, the Conference of the Parties to the Paris Agreement (COP) at the last COP meeting in Sharm el-Sheikh noted ‘the importance of pursuing an approach to education that promotes a shift in lifestyles while fostering patterns of development and sustainability based on care, community and cooperation’.³³

These new provisions stand alongside existing instruments that support training and capacity-building by a broad range of international organisations, including the FAO, UNEP, WTO and the World Bank’s e-learning activities outlined at the beginning of this article. The FAO training modules accord with the FAO’s mandate to provide legal information and tools for strengthening national legal frameworks for sustainable production in food and agriculture. UNEP’s activities are part of a long tradition of capacity-building identified during Agenda 21.³⁴ The WTO’s YouTube channel operates in the context of WTO members’ support for technical assistance and capacity-building;³⁵ the WTO Secretariat’s outreach efforts are summarised in a ‘Global Trade-Related Technical Assistance Database’.³⁶ The World Bank runs a live stream of events and an Open Learning Campus for staff and external users.³⁷ The UN also turns inward to highlight the environmental impact of its over 300,000 UN personnel in 53 reporting entities, reporting on the environmental training opportunities provided to staff.³⁸ In the UN Convention on the Law of the Sea (UNCLOS), there is an obligation for parties to provide technical assistance, directly or through a competent international organisation, including for the protection and preservation of the marine environment.³⁹

All the above activities are supported by constitutive documents and treaties in addition to pledges of resources and support by countries. The legal provisions for capacity-building sit alongside political realities of resource constraints and the changing priorities of States. As noted by the Organisation for Economic Co-operation and Development (OECD), the funding for the activities of UN bodies has been strained in recent decades, while international financial institutions have expanded their activities.⁴⁰ UN core budgets have fallen, and earmarked activities have instead proliferated, with an increased risk of ‘fragmentation and overlap’ due to the creation of new bodies to address emerging issues such as environmental threats.⁴¹ I describe these regime-specific activities in the next section.

2.2 Regime-specific learning and its limitations

Legal provisions and funding for capacity-building, technical assistance and training are likely to originate within specific regimes. At this point, another definition is useful: my use of ‘regimes’ draws from international relations and international law scholarship that delineates the multilateral treaties, international organisations and fields of professional specialisation that coalesce around specific issue-areas, such as trade liberalisation, climate change and the law of the sea. While definitions of ‘regimes’ differ, I favour the one that recognises the sociological as well as legal aspects: regimes are ‘sets of norms, decision-making procedures and organisations coalescing around functional issue-areas and dominated by particular modes of behaviour, assumptions and biases’.⁴²

Capacity-building, technical assistance and training are likely to be delivered by international organisations and other actors within specific regimes, for operational and strategic reasons. The treaties are not only sources of law but evidence of the importance and value that State Parties have placed on particular goals, and it is clear that State Parties wish to support capacity development that is instrumental to those goals. The international organisations, secretariats and related agencies that support those treaties are best placed to develop the capacity that is specific to the relevant issue-area. This idea of mandates and restricted service delivery has conceptual parallels with the views of the International Court of Justice (ICJ) on the competence of specialised organs to initiate requests for advisory opinions: the implied powers of international organisations are subject to the principle of speciality.⁴³ Moreover, each regime can be said to generate an ‘epistemic community’ of professionals and experts, who will have ‘strong incentives to work towards the achievements of their regime’s goals’.⁴⁴

3.1 Integrative initiatives

The notion that actors within regimes must reach outwards to implement States’ commitments is expressed in many ways. At the highest level of the UN, a dedicated UN Chief Executives Board seeks to improve policy coherence and coordination across institutions. At its most recent meeting, for example, the global peace and security environment was a topic for discussion, and the Secretary-General highlighted the need for an integrated approach to ‘peace, development and human rights’, including through capacity-building in this context.⁵³ Inter-agency bodies, such as the UN Inter-Agency Network on Women and Gender Equality, also work to provide coordination, in this case through gender mainstreaming.⁵⁴

Country declarations also make clear the imperative of coordinated action. The Sustainable Development Goals (SDGs) are based on agreed goals rather than institutional competences. SDG Goal 13 ‘Climate Action’, for example, acknowledges that the UN Framework Convention on Climate Change (UNFCCC) is the ‘primary international, intergovernmental forum for negotiating the global response to climate change’, but expresses its targets in a broad way. These include, for example, Target 13.3 to ‘[i]mprove education, awareness-raising and human and institutional capacity on climate change mitigation, adaptation, impact reduction and early warning’.⁵⁵ SDG Goal 17 ‘Partnership for the Goals’ expresses the goal of revitalising the ‘global partnership for sustainable development’.⁵⁶ Against published facts relating to access to digital technologies, the goals seek to enhance ‘multi-stakeholder partnerships’ and achieve enhanced ‘international support for implementing effective and targeted capacity-building’.⁵⁷

While the imperative for coordinated action is clear, the way in which this is to be achieved is not. A 2022 UN General Assembly declaration on climate change, for example, was put forward by Pakistan (on behalf of the Group of 77 and China) and passed with a paragraph stating that the Assembly: ‘Emphasizes the need for collective efforts to promote sustainable development in its three dimensions in an innovative, coordinated, environmentally sound, open and shared manner’.⁵⁸ An earlier proposed amendment by the United States had sought to amend this paragraph so that the Assembly instead: ‘Reaffirm[s] … its commitment to achieving sustainable development in its three dimensions – economic, social and environmental – in a balanced and integrated manner’.⁵⁹ The factors behind this difference in language are a topic for another day,⁶⁰ but for present purposes it is sufficient to observe the political wrangling between developing and developed countries over the means for achieving ‘coherence’ in the shared approach to sustainable development.

Agreements by international organisations are a further source for joint capacity-building. For example, the Memorandum of Understanding (MOU) between the FAO and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Secretariat agreed in 2006 was developed after the proposed listing of commercially exploited marine species required scientific and other expertise gathered within the FAO.⁶¹ The MOU recognises that many of the States importing or exporting marine species that might benefit from a threatened species listing would require training and capacity-building in both CITES and the FAO fisheries management structures.⁶²

Integrative approaches can also be developed at the project level. At the 2022 UN Ocean Conference, for example, side events presented examples of a range of collaborative capacity-building programmes.⁶³ These included the Ocean Governance Capacity Building Programme arising from a partnership between the World Bank, the Division for Ocean Affairs and the Law of the Sea of the UN Office for Legal Affairs (DOALOS), the FAO, the International Seabed Authority (ISA), the University of Melbourne and the University of Nantes, which was noted at the beginning of this article.⁶⁴ Given my experience as one of the trainers in this programme, the following subsection discusses its practical aspects.

3.2 Joint training and capacity-building in practice

In 2020, PROBLUE, a multi-donor trust fund administered by the World Bank that aims to support the development of integrated, sustainable and healthy marine and coastal resources,⁶⁵ allocated funds for a specific training initiative in ocean governance. At first, this led to the World Bank engaging consultants who were experts in the relevant areas of law and who were to deliver in-person training workshops for State officials and staff of international organisations as well as other stakeholders.⁶⁶ As the COVID-19 pandemic progressed, the training programme transitioned to a virtual mode. Through online meetings and preparatory discussions, a broader network was established, which led to a partnership between the World Bank, DOALOS, the FAO, the ISA and the University of Melbourne.⁶⁷ Open calls for participation led to applications from people working in government ministries, regional environmental organisations, port authorities, fishing operations, tourism and other sectors.⁶⁸ In the Asia-Pacific, the programme was delivered in blocks of seminars and tasks conducted over a six-week period. After this iteration, the partnership delivered a second training programme in French as well as English to the Africa region over a six-week period in 2021, bringing in the University of Nantes as an additional partner.⁶⁹ More programmes are planned under this extended partnership, and online resources are now available to a broader audience.⁷⁰ A self-paced e-learning module is also being prepared.

As I have described elsewhere, a training programme of this kind in ocean affairs is not new in itself. Rather, the novelty lies in the integrated and collaborative nature, involving multiple international organisations as well as academic institutions and funding bodies.⁷¹ The activities are supported by the duty to cooperate, a fundamental principle within the law of the sea and general international law,⁷² which obliges States to have regard for an understanding of each other’s interests as well as the collective interest.⁷³ The activities can also be supported by duties of international organisations and the recognition that they serve States and people. These duties accord with the understanding within international institutional law that an international organisation has ‘many constituencies, all of which can make justifiable demands concerning both the everyday guidance of the organization and its accountability’.⁷⁴ Coordinating the joint delivery of training programmes is an expected activity of international organisations in the context of complex ocean challenges.

The content of the training programme was decided by the partners, based on factual context (including scientific assessments of the state of the world’s oceans),⁷⁵ international law and legal developments. Many of the modules were championed by the UN agencies and World Bank officials working on the ground in countries, especially those countries that were seeking to develop their own ocean strategies. The core curriculum led with UNCLOS, including maritime zones and core principles, and then moved to cover as separate topics the law governing climate change, fisheries, trade, marine pollution, marine conservation and biodiversity and activities in the deep seabed. For elective modules (participants chose three out of ten to complete), topics covered dispute settlement, marine scientific research, advanced marine pollution, threatened species, maritime transport, blue finance, SDGs, BBNJ, ‘illegal, unreported and unregulated’ (IUU) fishing, and emerging issues. The last topic, in particular, enabled a more flexible and forward-looking orientation. It featured, for example, a discussion of ‘One Health’. The notion that the health of humans must be assessed alongside the health of non-human animals and the planet is by no means an accepted area of international law and is only starting to emerge within the World Health Organization’s (WHO) sought-for pandemic treaty. The topic also covered human rights issues, which the Human Rights Committee’s recent finding on marine climate adaptation confirms to be of increasing importance in ocean governance.⁷⁶

As one of the contributors from the academy, I was keen to understand how the balance between the many elements of ocean governance⁷⁷ was to be agreed upon by the international organisations within different regimes. In particular, I was alert to whether there would be guarding of mandates, or inflexibility, in the decisions about the content of the training. This did not eventuate. The discussions between the partners (conducted over multiple online meetings) led to an agreed position, with different organisations devising learning outcomes and recording lectures for their allocated topics, while commenting on the package as a whole. The partners also agreed upon the inclusion in the training of norms of customary international law that operate universally and outside regimes, like State responsibility for transboundary harm. Ocean governance challenges that are yet to be championed by a dedicated international organisation, such as ocean acidification,⁷⁸ labour rights on fishing vessels⁷⁹ and marine debris and plastics pollution,⁸⁰ were also included.

The delivery of the programme combined pre-recorded video lectures and sets of preparatory readings (including summaries of treaties), with live sessions and participant-led presentations on selected topics (often pre-recorded as videos by participants and uploaded) and discussion. In this way, participants could draw on professional and on-the-ground experience with ocean governance and share this with each other and with the trainers.⁸¹ This feature was mentioned in the positive feedback from attendees, who also commented on the usefulness of learning about multiple international regimes relevant to the oceans.⁸²

While it is too early to evaluate the training programme or to consider its long-term contributions, I am highly supportive of the learning objectives and appreciative of the attitude within the partnership and attendees that welcomed a diversity of content. I would identify the conditions of careful and collaborative planning, coordinated and participatory delivery, and ongoing engagement between partners and alumni as essential to successful outcomes for ocean governance. Yet I am also conscious of some differences between this training programme and my university classes. Obviously, the curriculum was more constrained in time and materials than a semester-length university subject. Wider issues of history and theory could not be covered; learners remained focused on a functional account of ocean governance. For example, my University of Melbourne class on the Law of the Sea devotes a full seminar to whales, notwithstanding that the attitude by States to ‘make possible the orderly development of the whaling industry’, agreed in 1946,⁸³ was superseded in 1982 by an agreed ban.⁸⁴ The partnership saw insufficient functional reason to include the topic in a training programme for State officials on ocean governance. For broader reasons, however, the topic of whales might be seen as foundational to ocean governance, and the evolution of law relating to whales is relevant to many of the environmental emergencies I noted at the beginning of this article (climate, oceans and biodiversity).⁸⁵ In the ICJ litigation brought by Australia against Japan,⁸⁶ there were glimpses of an ethics of care towards whales,⁸⁷ which provide alternatives to the dominant conception of extractivist-oriented national interests. Within the narrow confines of a capacity-building programme, however, such conceptual and ethical issues were not discussed.⁸⁸

Conveying the complexity of case law and the jurisprudential method to a group of State officials, some of whom are new to legal education, presents special difficulties. For example, the provisions in public international law that allow for evolution and an exercise of discretion on proportionality, reasonableness and even systemic integration arise through adjudication, such as when a tribunal engages in treaty interpretation.⁸⁹ These provisions have quotidian application for international lawyers, but for government officials and civil servants, they seem esoteric and complicated. Yet leaving them out of the training programme risks imparting a rigid conception of the state of the law and its ability to adapt to changing conditions.

A final reflection on the training programme relates to ontological and epistemological tensions. The goals of PROBLUE and the international organisations within the partnership were broadly to assist States in achieving sustainability in their uses of the oceans, including in the context of ‘the Blue Economy’.⁹⁰ Yet the question of whether the Blue Economy can adequately value and protect environmental and social imperatives and global public goods is an open one.⁹¹ Missteps in technical assistance in the past in other contexts have included overly narrow conceptions of national interests.⁹² That said, many of the participants attending the training programme did not approach the training in a narrow way, and during seminars sought to articulate shared common interests in the oceans, particularly at the regional level. They were also forthcoming in their own experiences and conceptions of the oceans. For example, during the module on climate-change adaptation, one of the participants from Fiji discussed the traditional practices that have allowed her society to adapt to stabilising shorelines.⁹³ These ‘nature-based solutions’ did not depend on knowledge of the UNFCCC or the Paris Agreement. In reflecting on what I had learned from her examples, I was reminded of cross-cultural and quantitative studies of the United Kingdom, India and Indonesia, which argued that as gross domestic product rose, ecological knowledge was lost.⁹⁴ While the framing of those studies risks eliding the differences that exist between different communities within a State, the overriding point about a loss of connection to local environments through urbanisation and ‘development’ is relevant. Could it be that accumulated knowledge about nature, which is necessary to confront the crises facing the oceans, is diminishing by the practices of State building and economic development that the training programme sought to facilitate? While a fuller treatment of this question is left for another day, at the very least the point demonstrates the value of technical cooperation rather than technical assistance, and a fuller conception of the ‘beneficiaries’.⁹⁵ On this, and the delivery of joint capacity-building training programmes, there are more implications, some of which the next section attempts to distil.

4.1 International organisations and international financial institutions

International organisations are the key actors that collaborate on joint capacity-building and training programmes, as they enter into MOUs or partnership agreements as set out above. In practice, the training programme in ocean governance described in the previous section demonstrated conditions for effective learning and adaptability. Yet, conceptually, such joint capacity-building efforts can either pre-empt conditions of fragmentation or succumb to them: though clichéd, one can imagine a particular actor seeming to ‘control the narrative’. As such, it is useful to explore broader implications for international organisations and other relevant actors.

The capacity-building and technical assistance described in this article can be set against the claim that international organisations ‘teach statehood’.⁹⁶ International organisations ‘contribute towards the construction of a kind of distributed global knowledge’⁹⁷ on what it means to be a State, often collaborating between multiple organisations in the process,⁹⁸ and thus agree upon and deliver an integrated account of international law.

In occupying a special role in building epistemic and interpretative communities that are adaptive and open to other regimes, international organisations wield influence in shaping dominant accounts of international law. It is thus important to ask about their legitimacy, especially when their work in coordinating joint activities strays from their express powers and mandates, and when the collaborating organisations have different State ‘masters’, different agendas and different mandates. Literature on regime interaction is useful in exploring frameworks that ensure legitimacy and depend less on direct State consent and more on institutional arrangements that emphasise inter-regime scrutiny, accountability, openness and transparency.⁹⁹ Theories of pluralist global governance that point to peer reviews by international organisations of each other’s activities are also relevant,¹⁰⁰ and regular meetings within partnerships can assist in developing relationships, sharing information and building communities of practice.¹⁰¹ The openness and general availability of the proposed ‘e-learning’ module on ocean governance, in addition to other examples I described at the beginning of the article, are a good start in democratising knowledge on international law.

By contrast, commentators who doubt that efforts at international cooperation can overcome structural power imbalances might show less optimism. Regime complexes that extend the notion of regimes to include a broad range of affected stakeholders, including private interests, have been criticised as expropriating less powerful actors and depriving them of already scarce resources.¹⁰² Moreover, the collaborative activities of international organisations described in this article fall short of calls for social solidarity and a postcolonial sensibility, which have emerged as a ‘third wave constitutional theory for international organisations’.¹⁰³ Such constitutionalist ambitions are not currently observable in the ocean governance training programme, for example, but some of the elements that are encompassed in those theories, including the need for international organisations to confront social welfare questions, were clearly important for the partners in deciding on content and approach.

There remains an unanswered boundary question about which international organisations should be involved in collaborative capacity-building according to these ideals. By way of illustration from the oceans context, 40 contributions from UN agencies, programmes and bodies, as well as other intergovernmental organisations, were provided to the Secretary-General for the latest annual report.¹⁰⁴ The FAO, the International Maritime Organization, the ISA, the International Tribunal for the Law of the Sea (ITLOS), the Secretariat for the CBD, the UNEP, the World Meteorological Organization, the International Labour Organization and the UN High Commissioner for Refugees are just a few of the organisations to assist in reporting, but not necessarily through collaborative activities; in his report, the Secretary-General refers to the recognised under-resourcing of inter-agency cooperation.¹⁰⁵ While provision of more resources will assist, it is clear from the earlier discussion that a substantive inquiry about goals and integrative content (such as gender mainstreaming, ocean health, human rights, SDGs and others) will be central in answering the boundary question.¹⁰⁶

It is also pertinent to recall that it was the PROBLUE trust fund, rather than a core and ongoing fund, that provided standalone resources for the ocean governance training programme to which this article referred. This relates to the spearheading of capacity-building efforts by international financial institutions.¹⁰⁷ In the more general context of international human rights law and development policy, there are calls for international financial institutions to act consistently with international human rights law, even without specific monitoring or enforcement roles, due to the lex generalis of that area of law.¹⁰⁸ Bringing conceptual synergy to development and human rights allows for these fields to be ‘viewed as converging in shared principles such as equality, participation, accountability, transparency, and voice, as well as in attention to vulnerable groups, all of which are principles that have become hallmarks of good development practice’.¹⁰⁹ Although outside the scope of the present article, these arguments clearly resonate with the backing for an inclusive, participatory and open approach to capacity-building and technical assistance described above.

4.2 States, citizens and other actors

States are another set of key actors in collaborative capacity-building both as the ‘masters’ of international organisations, and as the main recipients of the training programmes. Their actions are set against a framework of rights and duties. As I have described elsewhere, support for collaborative capacity-building can be linked to State obligations in international law, including, in the ocean governance context, the duty to cooperate, the duty to give due regard to others’ interests and the duty of due diligence.¹¹⁰

Aside from States’ horizontal relations with other States, vertical relations between States, citizens and other actors are relevant to the question of capacity and training programmes in international law,¹¹¹ as they are to broader questions of education and information-sharing at a societal level. While the scope to develop these ideas is not available here, it is pertinent to point out the relevance of citizens’ fundamental rights to information, guaranteed in constitutions or statutes around the world. Literacy and engagement in science and ecological knowledge is fundamental, requiring broad and open discussions about development, economic growth and environmental crises. A healthy civil society is important to the advancement of education, including in ocean governance and environmental advocacy,¹¹² and non-governmental organisations are likely to seek to shape capacity and training through participating in existing programmes or conducting independent activities.

Special representative and deliberative bodies also deserve mention. For example, legal developments in the rights of nature and the rights for non-human species have led to calls for the establishment of a new body, a ‘Council of Ocean Custodians’, to provide a voice for the ocean.¹¹³ Such a body could be charged with representing the interests of the ocean in areas beyond national jurisdiction, by, for example, serving as a ‘guardian’ to manage or supervise marine protective areas.¹¹⁴ One could imagine this guardian having a key role in training and education in ocean governance, and in occupying a place in partnerships, such as the one described in this article.

For academics too there is an ongoing role in conveying complexity, conflicting norms and critique, which come more readily than for functionally oriented international organisations. Engaging in collaborative efforts where possible, while maintaining a critical perspective and some detachment, is a fraught but important activity.¹¹⁵ Moreover, just as legal academia is reflexive in its own knowledge production (investigating, for example, whether the teaching and research of international law ‘is international’),¹¹⁶ it is important to monitor, participate in and even advance training and capacity-building by international organisations where possible. Academic involvement has been seen as central in capacity-building in ocean governance, as have the alumni networks that have developed from training programmes.¹¹⁷ There is much that the academy can gain in the ongoing exchanges with local participants and international organisations,¹¹⁸ such as ocean affairs where scientific, management and participatory approaches have often themselves been siloed within academic disciplines.¹¹⁹