Marine protection and the High Seas Treaty: a ‘big deal’

Parmentier031423Tribuna Marine protection and the High Seas Treaty, a big deal

There has been much excitement and comments amongst environmentalists and ocean advocates following the adoption in New York on 4 March 2023 of a supplementary agreement[1] to the UN Convention on the Law of the Sea (UNCLOS), for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (‘BBNJ Agreement’ for short, also referred to as the ‘High Seas Treaty’). So, what is the deal, and what is the ‘big deal’?

The high seas, or areas beyond national jurisdiction, are the portion of the global ocean that lies beyond the Exclusive Economic Zones (EEZ) of coastal States (generally beyond 200 nautical miles). The high seas account for 64% of the global ocean and no less than 45% of the entire planet. Overall, the ocean accounts for 95% of the biosphere.

The new agreement is aimed at improving the governance of the high seas and resolving gaps in the architecture of the UNCLOS. Once in force, the Conference of the Parties can designate marine protected areas on the high seas, review environmental impact assessments of activities liable to adversely affect high seas marine biodiversity, establish a committee for the fair and equitable sharing of benefits arising from the exploitation of high seas marine genetic resources, and watch over access to information and capacity building. It is also likely to influence the International Seabed Authority (ISA) in the current discussions on a proposed ban, moratorium or precautionary pause on deep seabed mining.

A High Ambition Coalition on Biodiversity beyond national Jurisdiction made up of 51 countries was launched at the One Ocean Summit, hosted in Brest by the French President Emmanuel Macron in February 2022 to seek to ‘bring to port’ the negotiations chaired by Ambassador Renee Lee from Singapore. All in all, the UN High Seas talks and negotiations took nearly two decades.

Humans on the high seas

Humankind has interacted with the high seas for ages, but its impact has increased in recent times.

Humanity has been sailing and shipping merchandise and people across the high seas since time immemorial, but with the contemporary trends in economic globalisation, ocean-based international trade has now grown at a scale that was unpredictable not long ago. At present, around 90% of all the goods we purchase are moved about the planet by ship.

We have also used the high seas as a dumping ground for waste until the practice was banned permanently in the early 1990s. However, pollutants from land-based activities have not abated, quite the reverse, dramatically affecting the high seas. While floating plastic is the most visible and the most in the public eye, micro- and nano-plastics (small and tiny particles of plastic) are the most pervasive and have been found in every corner and crevice of the oceans. If that were not enough, there are also high concentrations in the ocean of pesticides and other organochlorine compounds, radioactive substances and heavy metals. From the ocean and marine organisms, these pollutants make it back into our bodies through the food chain, not without severe consequences for human health.

We have been laying underwater cables since the middle of the 19th century, first to send telegrams, then to make telephone calls and now to send data through the Internet. Recent ruptures, accidents and perhaps sabotage against underwater cables and pipelines are raising the alarm on the vulnerability of the global economy, which increasingly relies on transactions and data exchange under the high seas.

We have also fished the high seas for some time. Until the 1950s most fish stocks were still in reasonably good shape (commercial whaling aside –whales are not fish–). Things started to go wrong soon after, with decreasing fish resources in coastal waters, within EEZs, triggered by increased demand that led to overfishing to meet it. Fishing fleets supported by rich government subsidies acquired the capacity to catch, package and freeze their prey on the high seas, the beginning of what some call the ‘cold rush’ for fish on the high seas. Environmentalists often quote a report published by the UN Food and Agriculture Organisation (FAO) that estimated that 80% of fish stocks had been fully exploited, overexploited, depleted or recovering from depletion. Others dispute the figure, but the truth is that it would already be alarming even if it were simply a case of ‘only’ 50% of fish stocks.

Emerging issues

The most recent and still emerging chapters of human exploitation of the high seas concern mineral and genetic resources.

Mineral resources found on and under the seabed have been a sort of Holy Grail for the mining industry in the past decades, with their exploitation now technically feasible. Both economic and environmental aspects of seabed mining remain untested, with potential irreversible environmental damage and equity issues as causes for concern. According to UNCLOS, mineral seabed resources found on and under the seabed of the high seas are part of the common heritage of humankind, and their exploration and exploitation are regulated by the International Seabed Authority (ISA), whose headquarters are in Kingston, Jamaica. In recent years, the ISA has granted exploration licences to a number of sponsoring countries and their contractors, and –should exploitation begin– the ISA is meant to equitably distribute any arising benefits while also protecting the marine environment for the benefit of humankind, including future generations. But equity concerns are not limited to the distribution of benefits, they also include the impact of mining on legitimate uses of the sea such as fishing and genuine scientific research. It is estimated that the high seas take up 500 million tonnes of atmospheric carbon per year, which ultimately becomes trapped in ocean sediments. In the long term, the possible remobilisation of CO2 by the machinery and its release into the atmosphere raises intergenerational equity concerns. But also in the short term, the impact of deep-sea mining on biodiversity could affect the carbon pump that absorbs CO2 daily.

The ISA has been discussing for some time the adoption of a mining code that, some say, would prevent irreversible environmental impacts, while others consider the opposite: if rushed it would, they warn, give a clean bill of health to deep-sea mining despite irreversible damage. Concerns have been heightened by a move by the Republic of Nauru, a tiny island State in the South Pacific, under pressure from its Canadian contractor The Metals Company, which activated in 2021 a so-called two-year rule that under UNCLOS contemplates the consideration and provisional approval within two years of plans to go ahead with deep-sea mining unless two thirds of the members of the ISA Assembly reject the plans. In the light of these concerns, a growing group of countries in 2022 started calling for a moratorium, a ‘precautionary pause’ or a ban on deep-sea mining. On 6 March 2022, two days after the adoption of the High Seas Treaty and a week prior to a meeting of the ISA Council, the Director General of the International Union for the Conservation of Nature (IUCN), Bruno Oberle, reminded in an open letter to all ISA Council Members that the World Conservation Congress held in Marseille, France, in September 2021 ‘IUCN Member States, civil society and Indigenous organisations overwhelmingly voted in support of a moratorium on deep seabed mining to protect life in the ocean’.

Manganese, nickel, cobalt and copper are the main metals targeted by the proponents of deep-sea mining. They argue that they can provide key elements for the on-going energy transition. However, car companies such as Volvo, Renault, Volkswagen and Tesla, and tech companies such as Microsoft, Samsung, Philips and Google have all gone on record to say that they do not need or want to use deep-sea minerals. And in their 2022 updated financial guidelines to the extractive sector, the UNEP Finance Initiative said categorically that deep-sea mining is not considered part of the sustainable blue economy. Numerous financial institutions are thus also ‘pre-divesting’ from the sector.

By the beginning of March 2023 the list of countries calling for a moratorium, a precautionary pause or a ban included (in alphabetical order) Chile, Costa Rica, Ecuador, the Federated States of Micronesia, Fiji, France, Germany, New Zealand, Palau, Panama, Samoa and Spain.

Unlike mineral resources, the living resources found in the high seas’ water column are not considered part of the common heritage of humankind under the UNCLOS. Fishing in some high seas areas is regulated internationally by Regional Fisheries Management Organisations (RFMOs) but they distribute quotas, not benefits to third parties.

The ownership of marine genetic resources found in the deep ocean has long been subject to debate. Genes from the deep sea, especially the precious few that have been looked at so far, are known to have important value for the medical and biotechnology sectors (hence for future human health). However, their exploitation (and even their existence) had not been envisaged when the UNCLOS was drafted and negotiated in the 1970s and 80s. Developing countries (the so-called Group of 77 plus China) have argued that marine genetic resources are part of the common heritage and warned against what they consider biopiracy on the high seas. Hence it was agreed in 2011 that the sharing of the benefits resulting from the exploitation of deep-sea genetic resources would be addressed as part of a package of issues that would be taken into consideration if and when the negotiation of a high-seas legal instrument takes place.

The Nagoya Protocol on access and benefit-sharing, a supplementary agreement under the UN Framework Convention on Biological Diversity (CBD), which entered into force in 2014, is meant to guard against biopiracy, but it does not apply to high seas resources. The principle of access and benefit sharing enshrined in the UNCLOS (for mineral resources) and in the CBD (for genetic resources within national jurisdiction) is what is behind the US pharmaceutical and biotechnology corporate lobby’s aggressive campaign that has, to date, prevented the US Congress from ratifying the two treaties. By the same token, it was the explanation of the US’s long-standing opposition, until January 2015, to the proposed High Seas Implementing Agreement.

After ‘informal talks’ lasting for nearly a decade, between 2006 and 2015 the UN General Assembly agreed in 2015 to launch formal negotiations that lasted another eight years until the adoption of the so-called High Seas Treaty on 4 March 2023. Other elements of the agreement include rules to designate and manage marine protected areas in the high seas (to date, only 3% of the world’s ocean is highly protected; however, the 15th Conference of the Parties to the CBD held in Montreal in December 2022 pledged to protect 30% of lands and ocean by 2030 as part of a new Global Biodiversity Framework), a mechanism to conduct environmental impact assessments in the high seas as on the rest of the planet, and provisions for capacity building and information exchange.

Advocacy by environmental Non-Governmental Organisations (NGOs) that are members of the High Seas Alliance was primarily focused on the need for so-called area-based management tools and marine protected areas.

They welcomed and celebrated the adoption of the agreement on 4 March 2023 and emphasised that it would greatly assist the international community to comply with the goal of the Post-2020 Global Biodiversity Framework (GBF) of protecting 30% of land, ocean, coastal areas and inland waters (the so-called 30×30 target) by 2030. However, it is likely that the definition of ‘protection’ will continue to be debated. For instance, the governments of France and Spain have recently expressed their opposition to a proposal by the European Commission to ban bottom trawling within Marine Protected Areas, as it is a non-selective fishing technique with a heavy impact on marine ecosystems. One can expect the issue to continue to be debated over the next two years amid preparations for the 3rd UN Ocean Conference to take place in Nice, France, in June 2025 under the joint presidency of the governments of France and Costa Rica.

Governance fragmentation

The high seas are sometimes described as the ‘Far Wild Wet’ or as a ‘lawless zone’. Frankly, it is a slight exaggeration, because certain activities on the high seas are regulated internationally, such as shipping by the International Maritime Organisation (IMO), fishing by RFMOs in certain areas of the high seas (although the management and enforcement of fisheries regulations remain weak and insufficient, particularly in the high seas, and so do the enforcement and monitoring of shipping regulations, often carried out under cover of ‘open registries’ that institutionalise the use of flags of convenience to circumvent certain fiscal, social and environmental obligations, and let alone the untested deep-sea mining ISA regulations). The problem with high seas governance is a mixture of gaps and fragmentation (both geographical and sector-wise). This is what the new High Seas Implementing Agreement or Treaty is meant to address and resolve.

The BBNJ High Seas Treaty adopted in March 2023 will enter into force after 60 parties deposit their instruments of ratification, after which point the first Meeting of the Parties will take place no later than a year later and thereafter at regular intervals as determined by the parties. A first review conference will also take place no later than five years after its entry into force. In an attempt to address governance fragmentation, Article 2 of the BBNJ High Seas Treaty stipulates that ‘this agreement shall be interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, sub-regional and sectoral bodies and that promotes coherence and coordination with those instruments, frameworks and bodies’. Pending its entry into force, signatories to the Treaty are expected to act in a manner consistent with its provisions. It is thus expected that the current debate at the ISA over deep seabed mining will be a first test case of the coherence and coordination of the signatories, including their ability to be faithful to the goal of preserving marine biodiversity in the high seas, including due respect for the precautionary principle or approach.

The UNCLOS is often described as the ‘Constitution of the Ocean’, and there is no doubt that it is a milestone in international governance. But it was adopted in 1982 and it entered into force in 1994. Over the past 40 years, the political, social and economic contexts and the environmental landscape have changed immensely, and in ways that no one could have foreseen. Concepts like biodiversity, sustainable development, the ecosystem approach or the precautionary principle were in their infancy, let alone our understanding of climate change. The new High Seas Treaty is the opportunity to bring the UNCLOS into the 21st century. That is quite a ‘big deal’!

[1] Known as an ‘implementing agreement’ in legal jargon.

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Image: view of international waters. Photo: Geran de Klerk.