Ruling the high seas


Guest post by chinadialogue intern Irina Fedorenko

The oceans cover more than 70% of the Earth’s surface and are estimated to contain more than 90% of its living biomass. But their function, health and productivity are severely threatened by human activity. To protect the high seas, special marine protected areas (MPAs) could be designated under the United Nations Convention on the Law of the Sea (UNCLOS). But conservation experts say the convention is failing to safeguard ocean life.

In a report out earlier this year, the London-based Foundation for International Environmental Law and Development (FIELD) argued that a new multilateral agreement is urgently needed to protect the marine environment outside of national jurisdictions. Despite high hopes for such an agreement from Rio, advocates were left disappointed after a small group of countries including the United States, Russia, Canada, and Venezuela, reportedly blocked a deal on governance of international waters.

I spoke to FIELD’s executive director, Joy Hyvarinen about the limitations of the current regime, opportunities for change and why, even post Rio, she is hoping for a new deal.

Irina Fedorenko: Around 80% of the world’s fish stocks are either fully exploited or overexploited, but only 1.5% of the world oceans are designated as marine protected areas (MPAs). Why aren’t there more protected areas?

Joy Hyvarinen: I am not sure if I know the answer when it comes to MPAs generally, but conflicting resource-use priorities, lack of awareness of the benefits of MPAs and lack of funding play a role at country-level. Designation of MPAs requires funding, for identifying species and ecosystems and which areas need to be protected, for instance. And monitoring in particular can be expensive: for example, patrolling an MPA to ensure that people don’t fish where they shouldn’t.

When it comes to MPAs in areas beyond national jurisdiction – areas outside the control of individual states – the issues are more complicated, both legally and politically

There is a need for better data and monitoring. But already there is more than enough scientific information to show that fish stocks, endangered species and unique biodiversity are under threat from the international community’s failure to protect and manage the oceans.

IF: At the moment, there is a United Nations Convention on the Law of the Sea. How well is it working? What are its main advantages and disadvantages?

JH: UNCLOS is a great achievement as a treaty. It provides internationally agreed rules for the world’s oceans, covering issues from marine environment protection to maritime delimitation [drawing boundaries between nations]. UNCLOS is critical for sustainable development, protection of the environment and peace and security.

Through UNCLOS, countries agreed that the deep seabed beyond national jurisdiction is the common heritage of the world. No state can claim this area and the resources of the deep seabed can only be exploited through the International Seabed Authority, an organisation created by UNCLOS, based in Jamaica.

But there is a problem. When UNCLOS was negotiated, attention focused on minerals on the deep seabed. It was expected that commercial exploitation could generate large amounts of money for rich developed countries with the necessary technology. This debate led to the “common heritage” concept in UNCLOS and related rules to ensure that developing countries would share in the benefits.

Since then, it has become clear that the deep seabed is home to unique life forms and rich biodiversity. Bioprospecting is now a very hot topic, with companies sampling and exploiting life from the deep seabed. UNCLOS defines “resources” in a narrow way and some countries argue that this means that marine genetic resources in areas outside national jurisdiction are not covered by the common heritage concept, but by rules for the high seas. Developing countries argue that the common heritage concept also covers marine genetic resources.

On the high seas – the water outside areas of national jurisdiction, as opposed to the seabed, the bottom of the sea – the centuries-old “freedom of the high seas” is still the main rule. If this applies, it would allow any country to freely exploit deep seabed life forms for commercial purposes, rather than manage them through the International Seabed Authority and share benefits with other countries, so there is considerable debate.

Fishing is one of the “freedoms” of the high seas. Although UNCLOS has some rules and additional rules have been developed through the UN Fish Stocks Agreement – a sub-agreement to UNCLOS – and through the UN Food and Agriculture Organization, it is clear that there are not enough rules to stop overfishing and fishing with gear that damages the oceans.

There have been many calls to establish marine protected areas on the high seas. Some states feel that high seas MPAs would not be compatible with UNCLOS and the issue of benefit-sharing related to exploitation of deep seabed biodiversity has complicated the debate.

IF: What are the governance challenges to implementation of the convention? Can you provide examples of where it has fallen short?

JH: Some of its rules are broad and general and need to be developed further through additional agreements, including strengthening management of fisheries and protecting biodiversity. The legal gap related to marine genetic resources in areas beyond national jurisdiction needs to be fixed.

It is also regrettable that the United States still has not joined UNCLOS.

IF: What is FIELD’s proposal for improving the current situation for the world’s oceans?

JH: We are interested a new sub-agreement under UNCLOS that could cover high-seas MPAs, marine genetic resources, Environmental Impact Assessments and cooperation between developed and developing countries.

A new agreement to cover the ocean areas that are not the territory of any state is essential. Without a new agreement it will not be possible to ensure proper conservation and management of marine resources; the “free for all” on the high seas will continue. It is also very important to clarify what the rules will be for protecting marine genetic resources on the deep seabed and for sharing the benefits from exploitation of these resources between developed and developing countries.

A new agreement under UNCLOS would make sense, building on the convention’s existing rules. It is positive that governments have recognised, in the discussions at the UN, that they need to consider these issues, but they need to move more quickly. Negotiations of a new agreement can take a long time.

IF: After Rio, do you believe people are listening? And what are your next steps?

JH: Discussions at the UN [leading up to Rio+20] about a possible new agreement showed that high seas MPAs and related issues are recognised as priorities by many countries.

Unfortunately, the outcome from Rio+20 was very disappointing. The vague “commitment” to address marine biodiversity in areas beyond national jurisdiction could postpone action and the reference to development of an international “instrument” under UNCLOS is very vague.

It is now important that the Rio outcome does not become an obstacle to the urgent action that is needed.

Image by Fisheries and Aquaculture Department