At the United Nations headquarters in New York last month, delegations from states and various observers, including NGOs and international organisations, have been in discussions on what a new international treaty for the conservation and sustainable use of biodiversity of the high seas (BBNJ) should look like. I’ve been in the midst of discussions as an advisor on the Australian Government delegation.
The high seas covers more than half the earth’s surface, so it’s pretty remarkable to think that, in this ever more crowded world, there are still such minimalist governance arrangements for these areas beyond the jurisdiction of states. Conservationists hope to close this gap by pressing states to negotiate a new treaty with binding obligations to protect marine wildlife in these areas.
The good news is that there seems to be general agreement among governments that a binding BBNJ agreement should be negotiated as an implementing agreement under UNCLOS, the UN Convention on the Law of the Sea. The next meeting, in July, is set to adopt a resolution to the UN General Assembly setting out the scope and timing for setting up a diplomatic conference to negotiate such an agreement.
The bad news is that there are a few powerful governments with strong distant water fishing interests that don’t want any new agreement to have real conservation ‘teeth’ sufficient to change the laissez faire status quo—although there are lots of governments that do want a good conservation outcome.
Developing this BBNJ agreement is unfinished business from the negotiation of the original Convention on Biological Diversity (CBD) that was adopted at the Rio Earth Summit in 1992. At that time, negotiators decided to limit the scope of obligations in the CBD to areas within national jurisdiction relying on rather vague admonitions to cooperate to address issues in areas beyond national jurisdiction – the high seas. Twenty-five years on, we’re now ten years into a process aimed at extending such conservation and sustainability obligations to the other half of the planet.
The process to negotiate a treaty for the high seas has been a slow one, but this is how it is when you’ve got to get almost 200 governments to agree on anything, especially anything with conservation ‘teeth’. This is made much harder by having to avoid the freedom of navigation provisions of UNCLOS originally codified by the 17th Century Dutch lawyer, Grotius in his seminal tome, ‘Mare Liberum’. Trying to introduce effective controls without unduly upsetting traditional freedoms is a tricky balancing act.
The main problem the international community is trying to deal with in negotiating a new agreement under UNCLOS is the failure of traditional ‘cooperation’ approaches to protect species and their habitats from industrial fishing fleets.
Almost all international fisheries are notionally managed by ‘cooperation’ arrangements called regional fisheries management organisations (RFMOs) but these tend to be rather limited in what management arrangements they seek to enforce – let alone in what they actually manage to enforce. Trying to get successful biodiversity conservation outcomes on the high seas, with its traditional ‘freedom to fish’ culture with management control by single sector fisheries bodies run by government fisheries agencies and within a weak governance framework can be very difficult.
On the bright side, in recent years, scientists have come to realise that the deep oceans are home to the most amazing diversity of weird and wonderful life forms. Previously, everyone assumed life did not exist in the dark, below depths where light was still able to drive photosynthesis. Now, we know animals are able to live in the most amazingly deep, dark and inhospitable places. This profound revolution in how we conceive of ocean biodiversity is driving all users, but especially deep sea fishing, to be more conservation-minded.
Like on land, a key conservation strategy is the creation of marine protected areas (MPAs), where areas are managed to protect biodiversity and other natural values. Out on the high seas, however, and on the seabed beyond the control of coastal states, there is currently no governance framework that would allow an MPA to be set up and managed effectively, as we have come to expect of National Parks on land. This new BBNJ agreement that we’re trying to negotiate has the potential to be a giant step towards being able to effectively control activities on the high seas so that conservation and sustainability commitments can actually be met. Indeed, it’s remarkable enough that we have come so far, so fast—and Australia continues to play a key role in moving things along in the right direction.