Don’t the high seas seem less remote than they used to? Many of us have gazed out an airplane window on an intercontinental flight and seen the featureless ocean below (and wondered if there is really a life vest strapped under our seat). That contemplative moment might have led us to worry whether our soda bottle was floating in the Pacific garbage patch or to look at the strange creatures of deep sea hydrothermal vents on Pinterest. Maybe we’ve read that half of the oxygen we breathe is produced by ocean plankton, or that the ocean absorbs heat and about 26 percent of the anthropogenic carbon dioxide emitted each year into the atmosphere. This beauty and these essential ecosystem services depend on ocean life — on ocean biodiversity.
Concerned that a global agreement is needed to protect this biodiversity, on December 24, 2017, United Nations member states initiated a treaty negotiation with the goal of allowing sustainable use of the ocean while still conserving its marine biological diversity. The negotiation is focused on four key issues of marine “biological diversity of areas beyond national jurisdiction” (BBNJ). Diplomats, lawyers, and scientists will work to define the rules for activities including: genetic prospecting; establishing protected areas and other marine spatial planning; environmental impact assessment for activities with potentially significant impacts; and marine scientific information sharing and other aspects of capacity building and technology transfer. Scheduled to begin in September 2018, the negotiation is budgeted for two years — which is a pretty short time to reach an agreement that will affect about 230 million square kilometers, or 46 percent of Earth’s surface.
Given the activities crowding the ocean — including commercial shipping, fishing, mining, solid waste disposal, tourism, scientific research, bioprospecting, and renewable energy development — the negotiation will pose an important choice between global governance models. The BBNJ instrument could address activities affecting the living ocean in a comprehensive way, bringing greater coherence and functionality to the complicated legal landscape of instruments, frameworks, and bodies; or it could have a narrow scope and limited authority, becoming one more specialized instrument.
For example, in the preparatory meetings, some regional fishery bodies established by regional or species-based treaties argued that they currently manage the resources in their charge well and should be exempted from a new agreement. Submarine cable companies, carrying more than 98 percent of global communications, urged that they not be included at all, since they view their environmental impact as minimal. A number of states expressed reluctance about creating new institutions or authorizing regulations to be developed and implemented by an international body. Despite the wide agreement that scientific information sharing is mutually beneficial and necessary, many countries wanted language to exclude commercially sensitive information, particularly with respect to the source of marine genetic resources.
If the approach advocated by these interests is followed, the BBNJ agreement could end up narrowly addressing a limited number of subjects, circumscribed by existing authorities, and any institution that it creates for implementation would then have a challenging task of coordinating with the many regional and sectoral bodies. Inconsistencies — like those that currently exist between some regional fishery bodies about something as fundamental as whether the definition of “fishery resources” includes mammals and birds — may multiply rather than decline.
On the other hand, there is a broad consensus that a more comprehensive approach is needed to mitigate negative impacts of climate change and pollution, to protect diffuse public interests and those of less powerful communities such as small island states, and to effectively enforce against illegal activities on the high seas. Without an integrated approach, stakeholders will continue to face an exhausting array of private and public entities, including individual states, when they try to undertake an activity, protect an ecosystem, or manage a resource in areas beyond national jurisdiction. For example, marine protected areas are considered necessary to protect fisheries and to counter climate change’s impact on marine biodiversity, which includes acidification, sea-level rise, intensification of storms, shifts in species distribution, decreased productivity and oxygen availability, and the cumulative effects of all these together. These results can only be created through cooperation across nations and institutions.
This kind of coherence may in fact derive from the constitutional system in which the new BBNJ instrument will be located. It will be an implementing agreement to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) (which has actually been called the “constitution for the oceans”). UNCLOS could be loosely analogized to the U.S. Constitution in the way it creates institutions and a structure for governance and establishes important fundamental principles.
UNCLOS defined the extent of the high seas areas beyond national jurisdiction (and thereby the geographic scope of the BBNJ) by establishing the right of states to declare jurisdiction over exclusive economic zones for ocean waters out to 200 nautical miles and over extended continental shelves.
UNCLOS created institutions that can themselves generate legally binding rules through adjudication and administrative processes. The convention established a mandatory dispute settlement system and created the International Tribunal for the Law of the Sea (ITLOS), which has articulated the rights and duties of states in contentious cases and in advisory opinions on deep seabed mining and illegal, unreported, and unregulated (IUU) fishing. This institution has provided a means for evolution of the law of the sea that could benefit the BBNJ agreement when unforeseen legal questions and conflicts arise.
In addition to providing an overarching set of principles, UNCLOS also calls on states to cooperate in the further development of international law to put the principles into effect. Particularly relevant to biodiversity, UNCLOS Part XII, article 192 declared the principle that “States have the obligation to protect and preserve the marine environment”; the remainder of Part XII identifies general measures that states must take on behalf of the marine environment. The lack of more specific rules in UNCLOS created the need for implementing agreements. The BBNJ negotiation will address the implementation of biodiversity protection and preservation for marine areas beyond national jurisdiction — the largest area of Earth that still lacks a comprehensive and coherent governance regime.
There are already two such implementing agreements to UNCLOS, both of which extend multilateral governance into high seas areas that lie beyond the territorial control of states, and which offer different models for the BBNJ agreement. One is the 1994 Agreement on deep seabed mining in areas beyond national jurisdiction, and the other is the Fish Stocks Agreement for highly migratory fish species like tunas and straddling stocks of fish like pollock. (The United States has not ratified UNCLOS, nor has it become a party to the deep seabed mining regime; however, it is a party to the Fish Stocks Agreement, and has been a constructive participant in that regime.) The Fish Stocks Agreement is operationalized through the regional fishery bodies mentioned above. States commit to cooperative management of particular fish stocks through the regional fisheries management organization for that species (such as the International Commission for the Conservation of Atlantic Tunas (ICCAT), whose area of competence is all waters of the Atlantic Ocean for Tuna, tuna-like species and pelagic sharks) or regions (for example, the Subregional Fisheries Commission (SRFC), which manages all fisheries resources in the much smaller zone of member states’ waters off the coast of West Africa).
In contrast, the International Seabed Authority (ISA) is an intergovernmental body that provides specific legally binding rules for all deep seabed mineral prospecting and exploitation in areas beyond national jurisdiction. Assessments of the ISA’s performance in developing regulations based on expertise and stakeholder engagement have generally been positive, although concerns have been raised about the lack of transparency in some critical areas. The ability of the ISA to obtain compliance and to enforce its regulations has not yet been tested.
The UN General Assembly from the outset grounded the BBNJ preparatory discussions on “the central role of the Convention and the role of other existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies.” When authorizing the BBNJ Preparatory Committee in 2015, the General Assembly stressed the need for a “comprehensive global regime.” Whether this fundamentally constitutional approach can be reconciled with the existing industry desires for greater autonomy will be a test of more than interest politics and the ingenuity of the negotiators.
In Fall 2018, the intergovernmental negotiation will meet at UN Headquarters in New York to begin work on a binding legal agreement for sustainable use and conservation of the biological diversity of areas beyond national jurisdiction — the high seas. But these discussions may have even bigger implications: the resolution of this negotiation has the potential to influence another contested area: outer space. The amazing shrinking world in this era that some call the Anthropocene brings the deep ocean and the surface of the moon within reach of our technology as well as our imagination. Yet they lie beyond the boundaries of national territory, and so pose unique governance challenges. Should governance be provided by the stakeholders who ply the waters (and space lanes), or by sovereign states?