A NEW OCEANS TREATY: PROTECTING MARINE LIFE ON THE HIGH SEAS

NEARLY two-thirds of the ocean lies outside any country's control or national jurisdiction. These are the high seas or waters beyond any country's exclusive economic zone and the deep seabed areas beyond their continental shelves. Collectively, these are known as marine areas beyond national jurisdiction (ABNJ).

Expectedly, the old, reliable National Geographic was the first to expose to the world the "wonders" of marine areas beyond the national jurisdiction of any state. The areas include deep-sea trenches, seamounts and hydrothermal vents, examples of which abound in our Asia-Pacific region. They contain an exceptional level of biodiversity, from pelagic fish like tuna to deep-sea sponges, including what scientists estimate to be over 2 million yet-to-be identified species. Looking at the colorful and often unusually shaped species makes one anticipate that somewhere are mermaids and other undersea creatures of folklore or fantasy.

Marine ecosystems provide resources needed for a healthy environment and human well-being. It is a source of food and helps create products for human consumption. It provides a means of recreation and opportunities for research and education. Millions of people rely on marine resources for their livelihood through employment in the fishing industry. It is estimated that marine biodiversity provides a third of the earth's oxygen and helps control the global climate.

Be that as it may, the open ocean beyond national jurisdiction is under pressure from fishing and fish-related activities as well as mineral resource extraction brought about by tremendous improvements in fishing and mining technology. The problem is not only about overexploitation of deepwater fishing grounds that host endemic species but extends to disturbance of the seabed and benthos by bottom trawling. In particular, seamounts as submerged inactive volcanoes where fish aggregate, have been found to have lowered productivity and likely need decades or even centuries to recover.

In addition, these resources are vulnerable to proposals for deep seabed disposal of pharmaceuticals, toxic industrial wastes and high level radioactive wastes.

Open access to ABNJ

Indeed, many marine genetic resources that may have value or use for humanity, i.e., new medicines or compounds for use in food or industrial processes, are among the concerns for the conservation and sustainable use of biodiversity in the marine areas known to be beyond jurisdiction of any state.

The past decades saw much loss of marine biodiversity due to uncontrolled human activities leading to climate change as well as growing commercial interest in previously unexplored areas. From an economic and socioeconomic view, marine biodiversity beyond areas of national jurisdiction are resources shared by all states. Access to those resources is open to everyone yet there are limited incentives to conserve and sustainably manage those resources.

International law on conservation of marine areas

Existing international legal instruments that lend support to conservation of marine areas beyond national jurisdiction include, but is not limited to, the following:

1. United Nations Convention on the Law of the Sea (Unclos) 1982. Unclos lays down a comprehensive regime of law and order in the world's oceans and seas establishing rules governing all uses of the oceans and their resources. It embodies in one instrument traditional rules for the uses of the oceans and at the same time introduces new legal concepts and regimes, and addresses new concerns. The convention also provides the framework for further development of specific areas of the law of the sea. An example is the creation of marine protected areas which says that "States have the obligation to protect and preserve the marine environment." Measures to be taken are those necessary to protect rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.

2. Convention on Biological Diversity (CBD) 1992. The objective of the CBD is the conservation and sustainable use of biological diversity for the present and future generations. The provisions of the convention are the most specific international law source for the creation of marine protected areas beyond national jurisdiction although the activities which relate to ABNJ clearly require further implementation through interested state parties and international organizations with existing competence in those areas.

3. International Maritime Organization Guidelines for the Designation of Special Areas and the identification of Particularly Sensitive Sea Areas (1992). The "particularly sensitive sea areas" concept is a unique concept devised by the International Maritime Organization (IMO) to provide protection for environmentally sensitive areas, both within and beyond national jurisdiction, from the harmful effects of international shipping activities. Particularly sensitive areas were defined as "areas which need special protection through action by IMO because of their significance for recognized ecological, or socioeconomic or scientific reasons and which may be vulnerable to damage by maritime activities." The protective measures do not affect other uses of the areas such as resource exploitation, marine scientific research, military activities and tourism.

Landmark new oceans agreement

Following two decades of discussions and negotiations, a new legally binding instrument on marine biodiversity in areas beyond national jurisdiction was adopted by consensus on June 19, 2023 following the conclusion of the fifth round of negotiations at the UN headquarters in New York. (Thereafter, the UN must formally adopt the treaty text and, to enter into force, 60 countries must ratify it. The first meeting of the Conference of the Parties will take place within one year of entry into force).

The landmark achievement will no doubt reinforce efforts to protect biodiversity in line with the aims of the 2030 Agenda for Sustainable Development and the Kunming-Montreal Global Framework for Biodiversity. The IMO participated throughout the negotiations given the organization's mandate and expertise, and will expectedly continue to participate in the implementation of the new instrument.

The new international legal document establishes: 1) a legal framework for establishing a network of high seas marine protected areas utilizing tools that range from specific (regulate fisheries) to cross sectoral which regulate all human activities in the area; 2) a process for assessing environmental impacts to ensure that unregulated high seas activities have minimal impact on the ecosystem and marine life; 3) an institutional structure that will support, among others, capacity building, the transfer of marine technology as well as private sector involvement; and 4) a financial mechanism for the equitable and effective implementation of the new international marine legal instrument.

The geographic scope for a new treaty is enormous. Right now, very few management organizations have focused on conserving marine ABNJ. The treaty presents an opportunity to create a new paradigm that prioritizes biodiversity conservation, healthy ecosystems and more equitable access to high seas marine scientific research and resources.

Indeed, scientific evidence demonstrates that the great natural resources of marine biodiversity in areas beyond national jurisdiction are being affected by human activities that have potential to significantly degrade the precious resource.

To conserve the treasure trove of biodiversity within marine ABNJ, the international community should enhance the integration of existing legal instruments to provide an effective international law framework (i.e., rules, standards, guidelines and obligations) which protects the deep-sea environment with the end in view of promoting human health and supporting economic growth, among others, for sustainability.

2024-05-04T00:42:29Z dg43tfdfdgfd