On Monday, under United Nations auspices, 71 countries debated in the first round of negotiations for a new “international legally binding instrument … on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.”
1. What is “marine biodiversity beyond national jurisdiction” and why does it need a treaty?
The major international law governing the world’s oceans is the U.N. Convention on the Law of the Sea. Finalized in 1982, the Law of the Sea gave coastal nations control of resources up to 200 nautical miles from their shores. But it only lightly regulated a narrow set of activities beyond those coastal zones.
Since then, technological changes enable humans to do more with those uncontrolled areas of the oceans, such as bioprospecting (extracting marine genetic resources, for example) or overharvesting fish far from shore.
Most current laws about conserving biodiversity only work within countries’ national jurisdiction. The new treaty is meant to better regulate how countries and individuals use these broader waters. The treaty is meant to deal with four major issues: governing how countries share technologies, enabling the less-developed countries to use the scientific breakthroughs of their wealthier counterparts; creating marine conservation areas; assessing new activities’ environmental impact, and extracting and using marine genetic resources.
2. Is this really about marine biodiversity?
Yes, but not entirely. This treaty won’t set up a biodiversity protection system. Rather, it will set up a system to manage biodiversity issues, such as the declaration of marine protected areas by nations or the conduct of certain kinds of industry at sea, like genetic resource extraction.
Countries are discussing two basic types of questions: How should they protect the high seas environment; and, in an area owned by no one country, who should be able to extract resources or profits? While preparing for these negotiations, countries decided for now to set aside broader issues, like ocean acidification or plastic pollution.
3. Will the world be able to come together on this issue?
A basic schism divides countries considering how to protect biodiversity beyond national jurisdiction: Do the high seas belong to everyone on Earth, or to those who are the first to identify particular resources — especially marine genetic resources? Should they be governed under the “freedom of the seas” principle or the “common heritage of mankind” principle?
In varying degrees, Russia, the United States, Japan and South Korea are advocating for the former, which implies open access to whoever finds and claims a particular resource; respect for intellectual property rights in exploring its usefulness; and voluntary, non-monetary sharing of benefits such as scientific and industrial technology. Not surprisingly, countries with the technological and financial ability to exploit these resources tend to support this position.
Algeria, speaking on behalf of the 54 states of the African Group (a U.N. regional group that coordinates their responses), responded that this position would mean a “minority on this planet will appropriate marine genetic resources, is this what we want? At least two-thirds of this room don’t share this opinion.” Egypt articulated the developing countries’ preference on behalf of the 134 countries in the Group of 77 coalition: Expand the ‘common heritage’ principle, which calls for the deep seabed’s resources to be shared equally among all countries of the world. Doing so would involve requirements for notification, non-monetary and monetary benefit sharing, and access to intellectual property.
4. The biggest surprise of the negotiations was … the Vatican?
The Holy See, better known as the Vatican, surprised many with its substantive speeches during the negotiations. In fact, though the Holy See attended the past 10 years of preparatory meetings prior, its representative had spoken only once before. It does not have ships, fishing rights or even a coast line — but then again, neither do any other landlocked countries, all of whom are entitled to a share of ocean resources by the Law of the Sea.
All countries are entitled to access to the high seas. This is true even for landlocked states such as the Vatican or Switzerland, whose representative also spoke at the negotiations. But that can prove difficult because they don’t have coastal port cities of their own. Richer countries have higher levels of technology at sea — access to deep sea submersibles or remotely operated underwater vehicles, for example. They also have better scientific technology on land, with extraction equipment and better processing power to code the genome of new organisms. Thus, wrapped up in this discussion is a question about whether wealthier countries are obligated to help poorer ones gain their share of the benefits of the high seas.
The Vatican’s representative is a trade lawyer who has worked on Wall Street, and it shows. Her detailed contributions were intended to disrupt polarized positions by showing how the goals of developing countries — access, benefit sharing and technology transfer — can be achieved while respecting intellectual property rights, and without placing burdensome regulations on private companies working in the deep seas. The Holy See repeatedly pointed to the “elephant in the room” — companies and countries want to make money off ocean resources, and any negative economic impact from environmental protection needs to be formally addressed.
5. How long is this going to take?
Before the U.N. General Assembly voted to give negotiators two years to come up with a treaty — from fall 2018 to spring 2020 — many countries had spent a decade in preliminary discussions and four preparatory meetings.
Some delegates doubt that they will be able to finish the draft in time, while others think the treaty will be finalized on schedule. Readers can decide for themselves what they think: All the negotiations have been recorded and can be viewed on UN TV.
Elizabeth Nyman is an assistant professor of political science and maritime studies coordinator at Texas A&M University at Galveston.
Elizabeth De Santo is an assistant professor of environmental studies at Franklin and Marshall College.
Elizabeth Mendenhall is an assistant professor of marine affairs at the University of Rhode Island.
Rachel Tiller is a senior researcher at SINTEF Ocean.