Biodiversity: UN Agreement for the Protection of the Ocean

The ocean is a vital support system for all life on Earth. In addition to regulating the global climate, it provides us with essential resources and ecosystem services as well as hosting immense biodiversity and a diverse array of economic activities. The livelihoods of millions of people depend upon it. Harm to marine biodiversity in the high seas, those international waters that fall outside the jurisdiction of coastal states, is largely caused by intensifying human activities. Increases in man-made CO2 emissions have resulted in rising ocean acidity, declining oxygen levels, warming waters, and shifting ocean currents. In the future, emerging activities such as deep seabed mining might add further impacts. Maintaining healthy and productive ocean ecosystems is crucial for human well-being, yet these combined pressures are undermining the health and resilience of marine ecosystems and species around the world.

Awareness about the ocean and the mounting pressures placed upon it has reached a critical mass. This has fuelled numerous national and regional initiatives to conserve and sustainably manage the ocean near the shore. Yet due to the transboundary nature of the oceans, measures by individual states are not sufficient to conserve the high seas. At the same time, legal gaps in the existing international governance framework mean that it cannot adequately address the increasing threats to high seas biodiversity. The UN Convention on the Law of the Sea (UNCLOS) lays down rules for the use of the ocean and its resources, but does not specify how states should conserve and sustainably use high seas biodiversity. By establishing a coastal baseline, states can determine maritime zones and identify their jurisdictional waters. Their Exclusive Economic Zone (EEZ) extends 200 nautical miles from the baseline. States have the exclusive right to exploit or conserve the resources found within that zone. The parts of the ocean beyond the Exclusive Economic Zone are known as Areas Beyond National Jurisdiction (ABNJ). The Law of the Sea further divides these areas into the water column, known as the High Seas, and the seabed, called the Area. There is no comprehensive set of rules to ensure their conservation and sustainable use.

The ocean urgently requires protection and one clear way forward would be to establish a connected network of marine protected areas (MPAs). Yet states do not currently have a mechanism by which to create and manage such a network in Areas Beyond National Jurisdiction. They are also under no legal obligation to carry out environmental impact assessments before undertaking activities in these areas. And there is currently no legal framework to regulate access to and exploitation of marine genetic resources. A robust international agreement and stronger regional governance are essential to ensure the conservation and sustainable use of biodiversity in the high seas. A window of opportunity opened when formal negotiations on a new international and legally binding instrument to protect marine biodiversity in Areas Beyond National Jurisdiction were launched by the United Nations General Assembly in Resolution 72/249 of 24 December 2017.

The outcome document of the United Nations Conference on Sustainable Development (Rio+20) in June 2012 outlined clear and practical measures for implementing sustainable development. In this context, an ad-hoc working group at the UN was charged with studying issues in relation to the conservation and sustainable use of marine biological diversity in Areas Beyond National Jurisdiction and agreed to take a decision “on the development of an international instrument under the Convention on the Law of the Sea”. At its meeting in 2015, it made a number of recommendations to the UN General Assembly, stressing the need to develop an international implementing agreement under the UN Convention on the Law of the Sea as well as a comprehensive global regime to address marine biodiversity beyond areas of national jurisdiction. An organisational meeting was held in April 2018 and agreements were reached in preparation for the start of negotiations in September 2018.

The first formal negotiations to develop an internationally legally binding instrument will take place from 4 to 17 September 2018. Following this, a further three sessions of ten days each are planned: two in 2019, and one in the first half of 2020. The negotiating states have agreed to develop a ‘package deal’ focussing on four elements:

• Marine genetic resources, including the sharing of any benefits from their exploitation;
• Area-based management tools, including marine protected areas;
• Environmental impact assessments; and
• Capacity building and the transfer of marine technology.

A key issue for the negotiations will be possible institutional elements such as the creation of bodies to support decision-making or scientific and technical assessments. Cooperation and coordination with existing institutions for the management of human activities on the high seas (e.g. fisheries and shipping) will also be high on the agenda.

With negotiations only just beginning, the final outcome remains uncertain. A legally binding global agreement is an ambitious goal, so challenging diplomatic bargaining can be expected. Many states — including the EU member states — scientists, and civil society actors are calling for strong regulation for the conservation and sustainable management of high seas biodiversity. But some countries may resist the creation of an effective and comprehensive new agreement, arguing that the mandate of the existing instruments should not be undermined. The commercial interests of fishing nations and private sector stakeholders wishing to undertake mineral exploration and exploitation activities in international waters will also be a major issue at the negotiations, and decisions to limit these activities are likely to meet with resistance. Negotiations around the topic of marine genetic resources also promise to be complex – both in technical and political terms. In particular, the Group of 77 (G77), a coalition of newly industrialised and developing nations, consider these resources to be a common heritage of mankind and are demanding that a mechanism be established to ensure that profits derived from their exploitation are shared equitably. Other states are keen to maintain the status quo.

The efficacy of the new global instrument under negotiation will depend on improved and well-coordinated action by the competent international and regional management bodies. At the regional level, decision-makers require more knowledge and a better understanding of the gaps, challenges, and opportunities in the legal and governance framework. Greater insight is also needed into the current status of biodiversity, including key pressures and threats to it; the links between high seas biodiversity and human well-being; as well as possible options for the management of high seas biodiversity and the implementation, monitoring, and enforcement of these management approaches. Improved coordination and cooperation between key stakeholders within and across marine regions would lead to improved design, implementation, and durability of cross-sectoral management approaches. While every region faces specific challenges, ongoing inter-regional exchange offers valuable lessons and insights for identifying regionally appropriate pathways to improve global governance. Ultimately, strengthened regional governance is essential for the implementation of effective global ocean governance as well as a future global agreement under UNCLOS.

The Ocean Governance team at RIFS carries out transdisciplinary scientific research to provide decision-makers and society with improved knowledge and understanding of sustainability challenges for the ocean, including high seas governance. The team also engages with stakeholders from governments, the private sector, science, and civil society in Germany and beyond to co-design integrated, cross-sectoral approaches to the conservation and sustainable use of biodiversity and recommendations for relevant policy processes. The Ocean Governance team fosters dialogue with other marine regions through various inter-regional exchanges, including a regional stakeholder platform to facilitate joint learning and develop a community of practice.

Our work - rethinking ocean governance

Ocean governance for sustainability – the way that states, stakeholders, and other actors interact when dealing with the ocean and related sustainability challenges – is one of the research priorities of RIFS. Under the umbrella of core-funded RIFS research on Ocean Governance, a team of interdisciplinary researchers is engaged in a number of associated projects to develop new knowledge and solutions for key sustainability challenges. These are:

• Partnership for Regional Ocean Governance (PROG) – Marine Regions Forum – The Marine Regions Forum represents a new format for solution-oriented learning and exchange among different marine regions, which the PROG will develop, test, and establish as a participatory instrument at the interface of science and marine policy.
• STRONG High Seas – Strengthening Regional Ocean Governance for the High Seas – The project focuses on the Southeast Atlantic and Southeast Pacific regions, which are characterised by important oceanic currents that contribute to high marine productivity. Working through regional organisations, states in these regions have recognised the need to strengthen ocean governance for the conservation and sustainable use of biodiversity, including in the high seas.
• The project Deep Seabed Mining – Test Mining and Fair Benefit Sharing analyses the governance framework for potential mining activities in the deep seabed. In dialogue with stakeholders from the science and policy communities and civil society, it also generates independent assessments and supports the international negotiation process under the umbrella of the International Seabed Authority. RIFS researchers advise the German Federal Environment Agency (UBA) on issues related to the development of an international governance framework and on Germany’s national duty of supervision.
• COST Action on "Ocean Governance for Sustainability – Challenges, Options, and the Role of Science is a transdisciplinary network of 58 actors that is working to improve approaches to ocean related decision-making. RIFS represents Germany on the Management Committee of COST Action. COST stands for European Cooperation in Science and Technology and is the longest-running framework to support transnational cooperation between researchers, engineers and other experts in Europe.