The oceans are in bad shape. The high seas — like the moon, outer space and Antarctica — can’t be claimed by any nation. They are “areas beyond national jurisdiction,” and therefore protecting them requires international cooperation. A new United Nations oceans treaty — Agreement on Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction — would do just that, by focusing on greater biodiversity preservation.
Life on Earth depends on the oceans. We rely on seafood for 15 percent of global dietary intake of animal protein, but 90 percent of global fisheries are either fully fished or over-exploited. Climate change is bleaching coral reefs — which provide habitats for more species per unit area than any other ecosystem on the planet. Climate change also causes the oceans to absorb greater amounts of carbon dioxide, rendering them more acidic, which affects reefs, fisheries and other marine life.
So why is this new treaty so important?
Countries have been talking about biodiversity beyond areas of national jurisdiction for 12 years — whether to negotiate a treaty, and what issues it might tackle. The most recent round of this “pre-negotiation” process concluded in early April. States decided that the agreement would focus on four issues:
- Creating marine protected areas and marine reserves. Currently, less than 2 percent of the world’s oceans is protected — which means extractive activities, such as mining the seabed or drilling for oil, are limited or prohibited in these areas. Less than 1 percent of the world’s oceans is closed to fishing. The new agreement will create a process for identifying, designating, managing and monitoring new protected areas.
- Implementing environmental impact assessments for maritime activities. These assessments would require evaluation and reporting on the anticipated environmental effects of activities ranging from fishing to collection of sea life, or, in technospeak, “genetic material” — the genes contained in all living things. There’s currently no requirement for impact assessments on the high seas.
- Improving technology transfer and capacity building for developing countries. The 1982 U.N. Convention on the Law of the Sea (UNCLOS) declares that the “seabed and the ocean floor are the common heritage of mankind.” So the new law aims to provide developing nations with the tools to conduct marine research and build up their capacity to protect marine biodiversity.
- Managing and distributing the benefits of marine genetic resources. When companies find animals or plants on the high seas that are used to make products of high commercial value, such as pharmaceuticals or beauty products, some states advocate that the benefits from commercialization be distributed across all nations, since they believe the high seas belong to all humankind. A recent U.N. study estimated the global marine biotech market could reach almost $5 billion by 2018, so how to share these monies is no small issue.
Don’t we already have an ocean treaty?
Yes, several — but there’s no international legal mechanism for preserving ocean biodiversity. Certain species, such as fish or whales, come under other international laws, but preserving all ocean species simply to ensure their continued existence has not been a priority. This new treaty would fill that legal gap. Thus far, the United States seems supportive of the proposed treaty, but the bar for domestic ratification is high.
The 1982 UNCLOS governs everything from the definition of the continental shelf to safe passage of vessels in territorial waters. One hitch is that the United States has not ratified UNCLOS, despite widespread government support, including from the U.S. Navy. Though Congress objected to the rules governing mineral extraction in the seabed, the United States does respect many of the provisions regarding definitions, practices on the high seas and, perhaps most importantly, the creation of the Exclusive Economic Zone (EEZ), which extends states’ sovereign territory 200 nautical miles from their coastlines. Each state has the exclusive right to fish and extract within its EEZ, and to exclude others from doing so.
In addition, a host of agreements governs the world’s diminishing fisheries. The 1995 Fish Stocks agreement was created under UNCLOS to help manage transboundary species, which move between the high seas and EEZs. A handful of regional fisheries organizations manage either individual species (notably tuna) or specific areas, but they have come under widespread criticism for failing to protect species. Thus far, countries do not agree about whether fisheries should be included in the new agreement, and if so, how.
How will this treaty protect the high seas?
There’s a strong ecological reason to pay attention to the emerging treaty discussions. The high seas cover approximately half the globe and account for roughly one-quarter of known species. We haven’t cataloged an estimated 90 percent of the species in the deep seas, so we know extraordinarily little about these species or what losing this biodiversity might mean.
When scientific uncertainty abounds — such as when vast swaths of territory are unexplored — the prudent move is to invoke the precautionary principle, which calls for preemptive protection to reduce environmental damage. There are elements of the precautionary principle in the proposed treaty. The emphasis on marine protected areas, which allow vulnerable ecosystems to recover from previous degradation and protect them from future overexploitation, is one such measure. Requiring environmental impact assessments is another.
What about political tensions?
The fact that sustainable use is part of the proposed treaty title suggests a fundamental tension between the precautionary principle and the use of marine resources. In other treaties, “sustainable” or “rational” use has been code for objecting to the establishment of marine protected areas since such areas would ban, or at least limit, the use of resources.
The most controversial part of the new treaty is how it would regulate genetic resources. There’s a clear political division between the developed and the less-developed nations. The G-77 and China maintain that the principle of the “common heritage of mankind” governs marine genetic resources — so any benefits should be shared equitably.
Developed nations, notably the United States, emphasize that the basic doctrine of freedom of the high seas applies. Do wealthy nations with the technology to exploit deep sea resources have the right to reap the benefits of the ocean, or should they share these resources with all nations? This large gulf will have to be reconciled in future rounds of negotiations.
All of the scientific research suggests that the oceans are in big trouble. Less than 2 percent of the oceans is protected, but scientists think that number should be closer to 30 percent. The proposed treaty, to be presented to the U.N. General Assembly by 2018, provides a new pathway for protecting the oceans and the life within it.
Jessica F. Green (@greenprofgreen) is assistant professor of environmental studies at New York University. She is the author of “Rethinking Private Authority,” published by Princeton University Press.