Thursday, January 29, 2015

The big deal

  Night-long BBNJ negotiation  last week-end - (C)  IISD/ENB Dan Birchall

I was in New York last week at the meeting of the UN Working Group on Biodiversity in Areas Beyond National Jurisdiction, known to Ocean policy nerds (such as me) as the "BBNJ", and which was open to all UN Member States. This group has been meeting for nearly a decade, since 2006, to discuss whether a supplementary agreement (known as an "implementing agreement" in legal jargon) to the UN Convention on the Law of the Sea (UNCLOS) should be adopted to protect the high seas. The high seas, or areas beyond national jurisdiction, are the portion of the global ocean that lies beyond the Exclusive Economic Zones (EEZ) of coastal States (generally beyond 200 nautical miles).  This may sound boring or complicated to laypersons, but you'll realize it's a very big deal when you know that the high seas represent 64% of the global ocean, less than 45% of our entire planet!

Humankind has been interacting with the high seas for a long time, but our impact has increased in recent times.

We've been sailing and shipping stuff across the high seas since time immemorial, but with the contemporary trends in economic globalization, ocean-based international trade has now grown at a scale that was unpredictable not long ago. Now, more than 90% of all the goods we purchase are moved about the planet by ships.

We've also used the high seas as a waste dumping ground until this practice was banned permanently in the early 1990s. However, pollutants from land-based activities have not abated, quite the reverse, which dramatically affect the high seas. While floating plastics are the most visible ones and the most in the public eye, micro-plastics (small particles of plastic) are the most pervasive, and have been found in every corner and crevice of the ocean, If that was not enough, there are also high concentrations in the ocean of pesticides and other organochlorine compounds, radioactive substances, and heavy metals.

We've been laying underwater cables since the middle of the 19th Century, first to send telegrams, then to make telephone calls and now to send data through the Internet. Those of you who are not at this time in mainland Europe (where I am as I type) are reading this blog after it swam under the ocean. 

We've also fished the high seas for some time. Until the 1950s most fish stocks were still in reasonably good shape (putting the commercial whaling episode aside -- whales are not fish). Things started to go wrong soon after with the decrease of fish resources in coastal waters, within EEZs, triggered by increased demand which lead to overfishing to meet that demand. Fishing fleets supported by rich government subsidies acquired the capacity to catch, package and freeze their prey in the high seas. That was the beginning of what some called the "cold rush" for fish in the high seas.  Environmentalists often quote a report published by the UN Food and Agriculture Organization (FAO) which estimated that 80% of fish stocks had been fully exploited, overexploited, depleted or were recovering from depletion. Others dispute this figure, but the truth is that it would already be alarming even if it was the case for only 50% of fish stocks.

The most recent and still emerging chapters of human exploitation of the high seas concern mineral and genetic resources.

Mineral resources found on and under the seabed have been for the mining industry in the last decades a sort of Holy Grail which is now apparently starting to become technically feasible, but it's unclear whether seabed mining is another bubble. Both economic and environmental aspects remain untested with the potential damage and equity issues causing concern. According to UNCLOS, mineral seabed resources found on and under the seabed of the high seas are part of the common heritage of humankind, and their exploration and exploitation are regulated by the International Seabed Authority (ISA) headquartered in Kingston, Jamaica. In recent years, ISA has granted exploration licenses to a number of consortia, and - should exploitation begin - ISA is meant to equitably distribute any arising benefits. But equity concerns are not limited to the distribution of benefits; they also include the impact of mining on legitimate uses of the sea such as fishing or genuine scientific research.

Unlike mineral resources, the living resources found in the high seas' water column are not considered part of the common heritage of humankind under UNCLOS. Fishing in some high seas areas is regulated internationally by Regional Fisheries Management Organizations (RFMOs) but they distribute quotas, not benefits to third parties. The ownership of marine genetic resources found in the deep ocean is subject to debate. Genes from the deepsea, especially the precious few that have been looked at so far,  are known to have important value for the medical and biotechnology sectors (hence for future human health). However, their exploitation (and even their existence) had not been envisaged when UNCLOS was drafted and negotiated in the 1970s and 80s. Developing countries (the so-called Group of 77 plus China) vehemently consider that marine genetic resources are part of the common heritage and they warn against what they consider biopiracy in the high seas. Hence it was agreed in 2011 that the sharing of the benefits resulting from the exploitation of deepsea genetic resources would be addressed, as part of a package of issues that would be taken into consideration if/when negotiation of a high seas legal instrument would take place.

The Nagoya Protocol, a recent supplementary agreement under the UN Framework Convention on Biological Diversity (CBD) is meant to guard against biopiracy, but it does not apply to high seas resources. The principle of access and benefit sharing enshrined in UNCLOS (for mineral resources) and in the CBD (for genetic resources within national jurisdiction) is what's behind the US pharmaceutical and biotechnology corporate lobby's aggressive campaign  which to date has prevented the US Congress from ratifying both treaties. By the same token, it's the explanation of  the US' long standing opposition, until early hours of Saturday morning (24th January), to the proposed High Seas Implementing Agreement.

After dragging their feet for nearly a decade, UN member States reached consensus at the eleventh hour and negotiations will begin in earnest next year. Other elements of the 2011 package include rules to designate and manage marine protected areas in the high seas [to date, only 1% of the world's ocean is fully protected], a mechanism to conduct environmental impact assessments in the high seas like on the rest of the planet, and provisions for capacity building and information exchange, A study commissioned by the Global Ocean Commission last year has shown that life in the high seas is providing irreplaceable "ecosystem services", including mitigating human-induced climate change by taking up 500 million tonnes of atmospheric carbon per year. That alone makes high seas protection a big deal.

The high seas are often described as the Far Wild Wet or a lawless zone. Frankly, it's a bit of an exaggeration, because certain activities in the high seas are regulated internationally, such as shipping by the International Maritime Organization (IMO) or fishing by RFMOs in certain areas of the high seas (but enforcement of fisheries regulations remains weak, particularly in the high seas). The problem with high seas governance, outlined in the recent report of the Global Ocean Commission, is a mixture of gaps and fragmentation (both geographic and sector-wise). This is what the Implementing Agreement is meant to address and resolve.

UNCLOS is often described as the Constitution of the Ocean, and there is no doubt that it represents a milestone in international governance. But it was adopted in 1982 after a decade-long negotiation, and it entered into force in 1994. The political, social and economic contexts and the environmental landscape have changed immensely since that time, and in ways that no one could have predicted. Concepts like biodiversity, sustainable development, the ecosystem approach were in their infancy, let alone our understanding of climate change. The upcoming negotiation of the High Seas Implementing Agreement is the opportunity to bring UNCLOS into the 21st Century. A big deal!