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At the Rio+20 Summit in June 2012, governments committed to "address, on an urgent basis, the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction including by taking a decision on the development of an international instrument under UNCLOS" (para. 162, The Future We Want). Since then, the High Seas Alliance (HSA), on behalf of its 32 member organizations, has advocated for a new international legally binding treaty under the UN Convention on the Law of the Seas (UNCLOS) to protect marine biological diversity in the high seas and seabed.
The high seas, which is the ocean beyond any country’s exclusive economic zone (EEZ) – amounting to 64% of the ocean – and the ocean seabed, make up nearly one-half of the Earth’s surface and include some of the most environmentally important, critically threatened and least-protected ecosystems on the planet. Only a legally binding international instrument would address the inadequate, highly fragmented and poorly implemented legal and institutional framework that is currently failing to protect the high seas – and therefore the entire global ocean – from the multiple threats they face in the 21st century.
The high seas are open to all states, whether coastal or land-locked. Freedom of the high seas, and particularly the governance of high seas fishing, is exercised under the conditions laid down in 'Part VII: High Seas' of the 1982 UN Convention on the Law of the Sea (UNCLOS), which entered into force in 1994, and in the 1995 Agreement on the Conservation and Management of Straddling Fish Stocks And Highly Migratory Fish Stocks (known as the UN Fish Stocks Agreement), which entered into force in 2001.
The FAO Code of Conduct on Responsible Fisheries integrates the requirements of UNCLOS and the Fish Stocks Agreement, as well as bridging them with the wider requirements of the UN Convention on Environment and Development (UNCED).
Some high seas resources are managed by regional fishery organizations (RFOs) charged with organizing international cooperation around a number of tasks, including: the collection of fishery statistics; the assessment of the state of resources; the imparting of scientific advice; management decisions; and monitoring. The implementation and enforcement of measures is, however, usually the prerogative of the Flag State, and the relative effectiveness of RFOs varies from region to region, and task to task.
The existing framework of governance for the high seas is not fit for purpose in the 21st century. Since UNCLOS was agreed more than 30 years ago, activities such as deep sea bottom trawling and offshore oil and gas exploration have extended further and deeper, and today we are on the brink of deep-sea mineral mining becoming a viable global industry. Meanwhile, under UNCLOS, there is no global framework of rules for protecting the biodiversity of the high seas — indeed, UNCLOS does not even contain the word "biodiversity". The Law of the Sea urgently needs to extend further and deeper, to catch up with the pace of human technology and exploitation before the high seas fall victim to even greater levels of irrevocable plunder.
Less than 1% of the high seas are marine protected areas (MPAs), and this paltry figure would be far smaller without the significant progress in the Southern Ocean and North-East Atlantic of the past few years. Even including coastal zones and areas within EEZs, only 2% of the global ocean is protected, compared with 12.7% of the world's land area. There is a very long way to go if governments are to meet Aichi Biodiversity Target 11 of the Convention on Biological Diversity, which calls for at least 10% of the ocean to be covered by a network of MPAs by 2020. Scientists have advised going even further, recommending that between 20% and 40% of the ocean be given MPA status in order to conserve viable populations of key species, secure ecosystem functions, and allow sufficient connectivity between individual protected areas.
In June 2015, following almost a decade of discussions within the Ad Hoc Open-ended Informal Working Group to address biodiversity beyond national jurisdiction (BBNJ), the UN General Assembly adopted by consensus Resolution 69/292, which calls for a two-year preparatory conference (PrepCom) starting in March 2016 to develop a new legally binding treaty for the conservation and sustainable use of marine biodiversity beyond national jurisdiction.
During the two-year PrepCom process, governments will consider elements that could comprise the treaty. These elements incorporate area-based management tools (including MPAs) and marine genetic resources, including access and benefit sharing, capacity building and technology transfer. By the end of 2017, the PrepCom will report to the UN General Assembly (UNGA), on its progress in negotiating draft elements of the treaty. The UNGA will decide by September 2018 on the convening and starting date of an intergovernmental conference for finalizing the treaty text.
The international community recognizes that the lack of protection of high seas biodiversity is a huge and urgent problem and that the next two years are critical. The HSA will continue its work to ensure that the UNGA PrepComs result in a robust process for negotiations leading to a recommendation to the UNGA for a formal intergovernmental treaty conference in 2018. Developing a new legally binding instrument for the conservation and sustainable use of marine life is a vital step towards ensuring that the life-giving wonders and precious biodiversity of the high seas are conserved now and for the future.
More information on ocean governance and the UN’s preparatory process can be found on the website of the UN Division for Ocean Affairs and the Law of the Sea.