STEWART PATRICK
Last Saturday night, the world took a giant plunge to protect the world’s oceans. After thirty-six straight hours of negotiations, diplomats in New York representing nearly 200 countries endorsed a treaty to protect biodiversity on the high seas—the most significant multilateral environmental convention since the Paris Climate Agreement of 2015.
Although barely known to the public, the agreement—colloquially known as the BBNJ treaty, because it addresses biodiversity beyond national jurisdiction—is the culmination of nearly twenty years of diplomacy. When formally ratified by UN member governments, it will create a comprehensive framework to conserve and sustainably manage marine species and ecosystems over a vast expanse that encompasses 43 percent of the surface of the earth and the entire water column below, accounting for 90 percent of the ocean’s volume and biomass. Given the environmental stakes involved, the complexity of securing global agreement at a time of deepening East-West geopolitical rivalry, and the growing North-South frictions on climate and development issues, the treaty is an extraordinary diplomatic achievement.
The high seas are the quintessential global commons—areas that lie beyond the jurisdiction of any single sovereign nation but on which all depend for their prosperity and well-being. Unfortunately, they are poorly governed by a hodgepodge of multilateral treaties and regional arrangements covering distinct issues such as fisheries, maritime pollution, migratory birds, and deep-sea mining. Under the 1994 UN Convention on the Law of the Sea (UNCLOS)—the closest to a global ocean constitution—the high seas constitute the waters that lie beyond the 200-mile exclusive economic zone of any littoral country. While UNCLOS establishes important principles, most importantly related to freedom of navigation, it lacks detailed provisions on environmental conservation and stewardship of the high seas. Globally, a dozen-odd regional fisheries management organizations have also been created for portions of the open ocean, but their coverage is incomplete, and they have failed to reliably protect migratory fish species or vulnerable ecosystems.
The BBNJ treaty aims to close some of these gaps—and not a moment too soon. Once considered barren, the open ocean is now recognized to be a treasury of irreplaceable biodiversity and a provider of crucial ecosystem services. These benefits are being placed at risk by technological advances that are enabling their unprecedented exploitation by rapacious fishing fleets (often heavily subsidized) and a new gold rush to exploit seabed minerals that will power the world’s clean energy future. Already, scientists report, only 3 percent of the oceans can still be considered pristine.
Globally, some two-thirds of the world’s fisheries are overfished or fished to capacity, and the open ocean is particularly vulnerable to depredations like illegal, unreported, and unregulated fishing. Meanwhile, dozens of mining companies are planning ambitious extractive operations with little oversight from the International Seabed Authority (ISA), which has been captured by the very industries it is mandated to regulate. Even well-intentioned national or international schemes, like experimental strategies for ocean carbon dioxide removal, could have unintended ecological consequences.
Climate change, meanwhile, is propelling the oceans toward what Princeton University researchers warned last year could be a mass extinction event on the order of the Permian Extinction 250 million years ago that saw the disappearance of 90 percent of marine species. Since 1800, the oceans have buffered humanity from the worst of climate change, absorbing one-third of anthropogenic carbon dioxide and, even more dramatically, 90 percent of the heat associated with global warming—while continuing to provide humans with 50 percent of the oxygen we breathe, thanks to phytoplankton. The environmental cost of these services has been steep: the oceans are now 30 percent more acidic than at the start of the Industrial Revolution and hotter and less oxygenated than ever recorded. These changes in ocean temperature and chemistry are stressing species from microorganisms to large fish, risking the collapse of complex food webs and entire ecosystems.
The BBNJ treaty—which takes the form of a legal, internationally binding implementing agreement under UNCLOS—will help bring order to this chaos. Once ratified by member states, it will establish a new international authority for the high seas with its own secretariat, under the governance of an intergovernmental conference of parties and with the support of a new scientific and technical committee.
The treaty establishes several new mechanisms, each of which was the subject of arduous multilateral negotiations. First and most importantly, it creates a process for designating marine protected areas (MPAs) and other area-based tools to safeguard fragile, biodiverse regions. The high seas contain numerous ecologically sensitive zones, but nations have long disagreed on how to manage them collectively. Although many countries have designated MPAs within their exclusive economic zones, only about 1 percent of the high seas are currently protected. The ability to identify, establish, regulate, and monitor such vulnerable areas is critical to meeting the target of protecting 30 percent of earth’s oceans (as well as of its land), which parties to the Convention on Biological Diversity endorsed last December. In a nod to geopolitical rivalry among the great powers, the new treaty’s MPA provisions are qualified to provide exit options for parties in areas of geopolitical tension, notably the Arctic and the China Sea.
Second, the BBNJ creates new ground rules for environmental impact assessments of commercial activities on the high seas. Prior to launching any significant for-profit ventures on the open ocean, nations and companies falling under their jurisdiction are obliged to review and report publicly on possible harm that could result to marine ecosystems and organisms. Left unclear, however, is how much influence these new standards will have on decisionmaking by existing regional and multilateral bodies charged with regulating fisheries, mining, and shipping on the high seas.
Third, the treaty establishes arrangements for the equitable sharing of marine genetic resources, which had been one of the most divisive sticking points during the negotiations. Broadly speaking, wealthy countries had taken the position that private biotechnology companies seeking to sequence genetic information from organisms on the high seas should enjoy strong intellectual property rights so that they can profit from their investments. Developing nations, by contrast, called for mandatory benefit-sharing from any such discoveries, including digital sequencing information, on the grounds that such resources constitute humanity’s common heritage. On this controversial topic, negotiators managed to bridge North-South divides to hammer out an unprecedented agreement to share the resulting financial benefits. The agreement also commits wealthy nations to share scientific knowledge and technologies so that poorer nations can fulfil their treaty obligations, gain access to marine species and ecosystems that are currently beyond their reach, and be full participants in an emerging blue economy. It also sets up a special fund for developing countries for these purposes.
Much work remains to be done. While delegations have agreed not to reopen the treaty for negotiation, a number of countries have issued concerning statements suggesting that they may wish to re-litigate the results. One is Russia, whose delegation complained that the hurried, final stages of the negotiations resulted in the inclusion of textual provisions it had not had time to review and “deals in which our delegation did not have a chance to participate.” Presuming the text remains as it is, signatories will still need to ratify it according to their national processes. This poses serious hurdles in many countries, not least the United States, which has yet to ratify UNCLOS and where rank partisanship has reinforced the U.S. Senate’s reputation as the graveyard of treaties.
Implementation will be tricky, particularly as states grapple with a number of unresolved issues. One of the most important is determining who will actually police MPAs on the high seas, to ensure that they are protected. Another is the precise arrangement for dispute resolution under the treaty. Yet another is the magnitude of financial resources that will be made available to the new body, as well as the mechanisms governing their disbursement.
Despite these complications, the new treaty provides grounds for celebration at an otherwise dismal moment in world politics. Just a few days earlier, the latest acrimonious meeting of G20 foreign ministers adjourned in New Delhi without so much as a bare-bones communique. “Multilateralism is in crisis,” bemoaned Indian Foreign Minister Subrahmanyam Jaishankar. Against this bleak backdrop, the BBNJ agreement suggests that international cooperation remains possible, at least when the fate of the shared planet is at stake.
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