UN group calls for legal pact on high seas biodiversity

29 January 2015

UN delegates gathered in New York last week recommended that the General Assembly develop a legally binding agreement to govern the conservation, exploitation, and commercialisation of marine life on the high seas and international seabed.

While some participants reportedly hailed the decision as a major step forward ­– after nearly a decade of deliberation on the issue – others were disappointed with the timeline set for the new talks.

A dedicated working group attended by nearly 200 participants recommended that the UN General Assembly decide to develop the new instrument under the UN Convention on the Law of the Sea (UNCLOS). A Preparatory Committee (PrepCom) should begin in 2016 with a two-year mandate, in order to make substantive recommendations to the General Assembly on the elements of a draft text of an international legally binding instrument.

The UN’s main policymaking body should then decide by the end of 2018 on the convening and start date for an intergovernmental conference to consider the PrepCom’s recommendations and eventually elaborate a text for the instrument. 

The UN working group also decided last week that the content of the new agreement would focus on a package of key issues identified at a session in 2011: marine genetic resources (MGRs) and questions around sharing benefits from commercialisation of these; geographic area-based management tools including marine protected areas (MPAs); environmental impact assessments (EIAs); as well as capacity building and the transfer of marine technology.

During the UN Conference on Sustainable Development (Rio+20) held in June 2012 in Rio de Janeiro, Brazil, the working group was given a mandate to decide on the need to develop an international instrument on marine biodiversity under UNCLOS by the end of this year.

Regulatory and legal gaps?

Saturday’s recommendations represent a hard-won consensus on issues that have troubled the working group since its creation in 2006, namely on whether legal gaps exist in the governance of marine biodiversity in areas beyond national jurisdiction (BBNJ), and if so how these should be addressed by a new international instrument as well as the potential interaction between such an instrument and existing agreements, such as around fisheries.

The road ahead still appears difficult, however, given that a group of key marine nations – including Canada, Japan, South Korea, Russia, and the US  – reportedly “remained to be convinced” throughout last week on the need for a new instrument, according to Earth Negotiations Bulletin (ENB).

In the final text agreed on Saturday, UN members recognise that a new instrument will not undermine existing relevant legal instruments as well as related global, regional, and sectoral bodies.

Under UNCLOS, coastal states enjoy sovereign rights over the natural resources found in an area extending a maximum of 200 nautical miles from the coast, known as the Exclusive Economic Zone (EEZ). This means that around 64 percent of the oceans technically lie beyond the jurisdiction of any one country. 

Among the more difficult topics to hammer out is the jurisdiction over MGRs derived from living resources on the international seabed and in the high seas. The seabed beyond 200 nautical miles has traditionally been considered the common heritage of mankind and an existing implementing instrument under UNCLOS governs seabed mineral mining.

In contrast, a regime of freedom of exploitation has generally been applied to living resources in the high seas. UN members have been divided in recent years on which system to apply to MGRs.

Commercialising marine resources  

The conservation and sustainable use of marine biodiversity in the high seas has attracted increasing attention from policymakers, industry, and conservationists alike as a growing body of scientific evidence has underlined the anthropogenic pressures, resource richness, and vulnerability of these areas.

Environmental groups such as the High Seas Alliance argue that the high seas are more vulnerable than ever, as technological advances enable destructive practices such as bottom trawling and overfishing, and as increases in seaborne trade in past decades has hiked up noise pollution and ship strikes, as well as raised the risk of accidents and spills of oil and other hazardous substances. 

The potential for increased bioprospecting to source commercialisable MGRs could also pose serious threats to marine ecosystems if not properly managed, some experts suggest.

In 2013 around 18,000 natural products were sourced from some 4,800 marine species, with that number set to grow at a rate of four percent a year, according to the Global Ocean Commission, a marine conservation group.

Much of this bioprospecting has occurred in easy-access coastal waters by a few developed countries that can afford it; but improvements in technology could eventually mean that activities move further afield as costs go down.

The commercialisation and trade of marine genetic resources poses similar challenges to those faced by the sale of products derived from other genetic resources, namely, how to govern their use or extraction and share benefits derived, with the added challenge of uncertainty over jurisdiction in the high seas.   

Meanwhile the concept of marine protected areas could eventually impact certain parts of the fishing industry with possible effects on fish trade. Fish are among the world’s most traded food commodities, worth almost US$130 billion in 2012, according to the UN Food and Agriculture Organization (FAO).

"An UNCLOS agreement in marine biodiversity could be an outcome that would incidentally shift fisheries regulation issues from a so-called piecemeal species based conservation and sustainable use approach to a bioregion or ecosystem based approach. This would be done gradually of course," said Geoff Burton, a marine genetic resource expert based at the University of New South Whales in Sydney, Australia. 

ICTSD reporting; “Summary of the Ninth Meeting of the Working Group on Marine Biodiversity Beyond Areas of National Jurisdiction: 20-23 January 2015,” IISD REPORTING SERVICES, 26 January 2015. 

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