Charting a new path to protect the high seas


As marine life keeps declining, temperatures continue to rise and oceans to acidify, countries have finally agreed on the need to protect marine biodiversity. A new treaty that could help advance this goal has been almost two decades in the making and is in the final stages of negotiations.

From jellyfish collagen applied to accelerate wound healing, to cosmetics, to squid-based plastic alternatives, the ocean’s biodiversity holds immeasurable potential in knowledge and resources for humans. It also produces at least half of the Earth’s oxygen and feeds over three billion people worldwide. But climate change and pressure from human activity is causing the ocean’s health to decline rapidly.

“Increasing climate change related impacts such as marine heat waves, declining oxygen levels, loss of productivity, and accelerating acidification are further weakening the ability of vulnerable marine species and ecosystems to withstand pressure from harmful human activities like overfishing, bycatch, habitat loss and pollution,” explained Minna Epps, global marine and polar programme director, at the International Union for Conservation of Nature’s (IUCN), speaking to Geneva Solutions.

At the same time, science and technology is developing at an incredibly fast pace, feeding into the race to the bottom of the ocean, where all kinds of unstudied species but also cobalt, nickel and other mineral reservoirs lie.

While waters within states’ jurisdictions have rules and laws clearly set out that regulate how their resources are used, the area that lies beyond and that waves no flag remains largely ungoverned, or at least poorly done so. This has brought to the surface the urgent need for a new set of rules for the high seas.

In need of a new compass. Since the early 2000s, the idea of a new treaty for the conservation and sustainable management of marine biodiversity in areas beyond national jurisdiction has been bouncing around the UN court. It wasn’t until 2017 that the UN finally called for an Intergovernmental Conference (IGC) tasked with crafting a legally binding instrument. A final draft was expected to see the light of day last year at the fourth and final IGC session, but due to Covid-related restrictions, the meeting was postponed to August of this year.

The BBNJ treaty, as it is commonly known, is expected to address a number of gaps, Kristina Gjerde, member of IUCN’s World Commission on Protected Areas High Seas specialist group and part of the IUCN delegation closely following the negotiations, told Geneva Solutions.

It should help establish a network of marine protected areas. According to figures cited by The Pew Charitable Trusts, a mere one per cent of the high seas are highly protected – a number that should be ramped up to 30 per cent to halt the ocean’s health decline, experts suggest.

The pact should also set international standards for environmental impact assessments for all activities that affect the areas beyond national jurisdiction. These should include requirements to avoid lasting impacts but also safeguards such as consultations, information sharing and answering to the concerns raised by states and other stakeholders, Gjerde noted.

Another key issue the treaty deals with is technology transfer and capacity building for the study, conservation and management of marine biodiversity, as well as sharing of benefits from marine genetic resources. This point is specially important for least developed and developing countries, particularly small island developing states, that largely depend on marine resources but lack the capacity and technology that developed nations have.

How is the sea ruled? The BBNJ treaty would become the third agreement under the UN Convention for the Law of the Sea (UNCLOS) to regulate activity in the high seas.

Since its entry into force in 1994, UNCLOS has been the governing legal framework for the oceans. As of today, 168 nations are parties to the convention, though with the exception of the United States along with other countries like Turkey, Israel and Colombia.

The first agreement, under UNCLOS, which entered into force in 1996, addressed concerns by some developed states regarding UNCLOS provisions for deep sea mining – the extraction of minerals from the sea floor below 200 m – such as mandatory technology transfer.

Read also: The race to write the rulebook on deep seabed mining

The second agreement, which entered into force in 2001, sought to dial down the unregulated exploitation of straddling and highly migratory fish stocks – species that occur in more than one exclusive economic zone – beyond national jurisdictions.

An additional patchwork of legal instruments regulates a number of specific issues related to the ocean’s resources such as migratory birds, pollution from ships and search and rescue operations. However, experts often argue that despite the dozens of mechanisms that exist, the high seas still suffer from poor governance.

“The fragmented legal landscape, the multiple uses and conflicts of interests are contributing to the general decline in global ocean health,” explained Epps.

“The problems they are causing are not just environmental but also involve justice, equity and benefit sharing issues. High seas fishing, for example, benefits only a few nations while overfishing in the high seas will ultimately have an impact on coastal fisheries and livelihoods,” she added.

Troubled waters ahead. While at the final stage of negotiations, states still need to overcome a number of obstacles. “The main concern is that the treaty will get watered down to address the demands of the few states more driven by short term economic interests. All are hoping for wide participation and support for the new treaty, but ideally not at the expense of a robust treaty,” Gjerde said.

For example, the sharing of benefits from marine genetic resources has created some divergences since in some cases it could come with economic advantages, according to an analysis published in the Marine Policy journal. Countries like the US and South Korea have expressed support of voluntary sharing of non-monetary benefits whereas many developing country groups, including the Group of 77, China, the Caribbean Community and the African group have called for mandatory sharing of both monetary and non-monetary benefits, according to the authors. Depending on the end results, this will affect the science community but also economic actors that could potentially see doors opening or closing.

Additionally, the treaty will not solve all problems, Gjerde warned: “States will still need to address management issues such as those related to overfishing, subsidies and illegal, unreported and unregulated fishing through traditional channels such as RFMOs, the FAO, the World Trade Organization and the United Nations General Assembly. It is nevertheless hoped that the heightened international publicity will accelerate the necessary reforms.”

It is hard to measure how much illegal and unregulated fishing is going on around the world, but estimates have shown that one in five fish consumed globally is caught illegally, according to the Pew Charitable Trusts.

Other pressing questions might not get answered through the agreement, one of them being deep seabed mining. “The situation is trickier with the ISA [International Seabed Authority] and deep seabed mining, as the ISA is developing regulations for deep seabed mining that many believe are premature, especially when the ocean already faces so many other threats,” she said.

In other words, the ISA is going ahead with this process, while the BBNJ treaty is still being drafted.

Oil and gas activities also raise concerns. Most oil and gas deposits are found in the extended continental shelf, which falls within national jurisdiction. But extraction and exploration activities could also affect marine biodiversity in the high seas. “There is still a divergence of views whether the environmental impact assessment provisions should apply to activities within national jurisdiction,” Gjerde noted.

Negotiations stalled due to Covid. Like most multilateral processes, the negotiations for the BBNJ treaty have also taken a hit from the pandemic. The holding of the IGN session, delayed already by one year but now expected to take place in August in New York, will depend on vaccination rates and travel restrictions. There is also much work to be done on the latest draft treaty that dates from November 2019, Gjerde said.

“It still contains many options and square brackets that need to be resolved prior to finalising the treaty. Even though informal consultations are occurring online, it may be difficult to remove those square brackets until either the actual in-person negotiation takes place, or the President of the Conference is authorised to revise the draft text to reflect more recent views,” she explained.

“Nevertheless, it will be possible to make progress in advance of the fourth meeting if states and regional groups work together to develop joint proposals to address key issues and articles.”

If the session is able to take place in August and stakeholders can overcome their differences, a new global treaty on the protection of marine biodiversity could be adopted this year. Otherwise, additional consultations will most likely stretch out to next year.