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BBNJ Treaty: The COP21 of the oceans?

During the last two weeks of August, diplomats gathered in New York to further negotiate the BBNJ: A treaty that could save the ocean. The third round of negotiation has just been closed and achieving the negotiation by 2020 might be more challenging than many had thought.

In a resolution of 2017, the General Assembly of the UN decided to elaborate a legally binding agreement dealing with the conservation and sustainable use of marine biological resources in areas beyond national jurisdiction. The treaty named BBNJ (Biodiversity Beyond National Jurisdiction) will be placed under the authority of the United Nations Convention on the Law of Sea (UNCLOS). It will focus on “genetic marine resources, area-based management tools, including marine protected areas, environmental impact assessments, and capacity-building and the transfer of marine technology”.

The high seas are not totally unregulated, but there remain some loopholes in their governance as they escape national jurisdiction. States regulate all activities in their territorial seas (up to 12 nautical miles). Then, states have sovereignty on the water columns and subsurface in their exclusive economic zones (up to 200 nautical miles).  Finally, on ships, the law of the flag’s country must be respected, anywhere.

Negotiating a comprehensive treaty over the resources of the high seas is very time-sensitive. Indeed, economic activities are developing further in the high seas. Hence the need for regulations is increasing. Additionally, the high seas are suffering from climate change and acidification.

Economic development and Pressure on the High Seas

The oceans are suffering from climate change, rising acidification and as a result oxygen depletion. Acidification results from nutrients (coming from agriculture and industries) being rejected in the seas which contributes to the growth of algae. As a result, other living forms are suffering from oxygen depletion.

In some parts of the ocean, fish stocks are exploited above the sustainable limits thus creating a risk in terms of food security. Fish stocks are suffering from both exploitation and oxygen depletion.

The oceans have become subject to bioprospection: a research activity aiming at finding resources that could be used as medicinal drugs. Bioprospecting has taken place in areas that seems unlikely such as the waters surrounding Svalbard. As an example, krill is already used and patented within the pharmaceutical industry. The pharmaceutical industry is paying to other creatures living in the depth of the ocean. Indeed, species living in the bottom of the sea could contain efficient materials for anti-cancer drugs.

Additionally, the mining industry is paying attention to the seabed to exploit cobalt, gold, copper, nickel, manganese and rare earths. Experts are worried that this exploitation could be destructive. Indeed, we know very little about these environments.

Governance of the High Seas

The high seas escape the sovereignty of states. UNCLOS is guaranteeing the freedom of the high seas but the treaty states that this freedom should not come at the detriment to the marine environment.

Fishing in the high seas is managed by Regional Fisheries Management Organizations (RFMO). Legal bodies and organizations regulating the RFMO are the 1995 UN Fish Stocks Agreement (UNFSA) and The Fisheries and Agriculture Organization of the UN (FAO).

Mineral resources exploitation is regulated by the International Seabed. Under UNCLOS, these resources are part of the common good of mankind. The ISA is currently building new regulations regarding the exploitation of seabed minerals.

Regarding shipping, the International Maritime Organization has put together measures that are applicable to the high seas including Special Areas for discharge restrictions, routing measures and reporting measures. The IMO Guidelines for Particularly Sensitive Sea Areas (PSSAs) deals with specific risks that could occur in the high seas.

Important to the negotiation of treaties is the research dealing with marine science. Research activities are regulated by The Intergovernmental Oceanographic Commission (IOC) of the United Nations Educational, Scientific and Cultural Organisation (UNESCO). An International Guidelines and Criteria for the Transfer of Marine Technology has already been put forth by the IOC.

The BBNJ will be a good complement to the 1992 Convention on Biological Diversity (CBD). The CBD already fosters states to “integrate, as far as possible and as appropriate, the conservation and sustainable use of biodiversity into relevant sectoral or cross-sectoral plans, programs and policies”. However, the CBD mainly focuses on areas within national jurisdiction.

The BBNJ: where are we now? What are the different positions?

The BBNJ could be an important complement to the COP21. The ocean plays an important role as a carbon sink. The designation of additional Marine Protected Areas and other Area Based Management Tools could help the ocean preserve its role as a carbon sink. Moreover, Environmental Impact Assessments have a role to play in the development of human activities that are not threatening to climate. Furthermore, technology transfer can be instrumental in building a global effort against climate change.

The treaty is especially of crucial importance for the small states islands which are the states that are the most dependent from the oceans. Small islands and developing states favour developing an instrument under which current institutions would be placed. Whereas, the big developed coastal states would like to keep the current governance system. Finally, the EU is trying to build a consensus within the negotiation.

When it comes to genetic marine resources, the debates focused more on equity rather than on protection. The southern and developing countries would like to have equal access to these resources. Islands states can have exclusive economic zones that are up to 28 times bigger than their landmass. Activities and protection of their high seas thus impact their economy and direct environment. These states also stress the role that traditional knowledge has to play in conservative measures.

The US representative wishes to keep the words “climate change” out of the articles referring to Marine Protected Areas while the small states islands think it has a primary role in the treaty.

The notion of conducting mandatory environmental impact assessment has also been a divisive issue. The Pacific small islands states are supporting “very much” the idea. While the EU would like to bring some limitations. On the other hand, the US does not want to have anything mandatory. For the representatives of the Pacific small islands, a state that does not wish to conduct assessment would have to justify itself based on scientific proof. On the other hand, the US claims that no justification should be brought.

A COP 21 for the Ocean?

Like COP 21, the BBNJ will be a treaty that would be legally binding. However, countries are still divided as to whether it should have consequences on already existing organisations. Small island states have favoured the creation of a treaty that will be above these organisations.
On the other hand, the US and Russia have stressed that elements such as Marine Protected Areas should be developed more within regional organizations.

The COP 21 has established some clear goals. Sadly, the negotiating parties of the BBNJ still seem far from achieving that.

The states that are the most committed to protecting the high seas are the ones that are the most vulnerable to climate change. The small island states, sadly, have little power in international politics. However, this is the area where they could carry more weight due to their geographic location. But even they are trying to balance protection and equitable exploitation of the high seas when it comes to marine genetic resources.

Finally, the willingness of the USA to avoid mentioning climate change might have detrimental consequences for the treaty and the high seas.

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