Following the international community’s 1982 adoption of the United Nations Convention on the Law of the Sea (UNCLOS), often referenced as the “constitution of the ocean,” the New Yorker ran a cartoon of an afternoon tea scene, captioned, “I don’t know why I don’t care about the bottom of the ocean, but I don’t.” Four decades later, the significance of the ocean in our everyday lives—in every breath we take—is better understood. However, despite the forthcoming June 2023 adoption of a new U.N. Agreement for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (the BBNJ Agreement), insufficient progress has been made in advancing the law and policy frameworks needed to both protect oceans and bolster the “blue economy,” which refers to the sustainable use of ocean resources for meeting economic, social and environmental objectives.
The Ocean-Climate-Biodiversity Nexus and Why It Matters
Over the past few decades, ocean advocates have worked to formally recognize the interconnectivity between the ocean, climate, and biodiversity challenges, and to develop law and policy mechanisms to address the crisis.
Whereas the international climate negotiations now include an Ocean and Climate Change Dialogue and opportunity to fold ocean-based measures into Nationally Determined Contributions, the international ocean negotiations go even further in aiming to improve the regime under UNCLOS to better address the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ), which comprises the portion of the global ocean—the high seas (water column) and the Area (seabed, ocean floor, and subsoil)—that extends beyond any one state’s jurisdiction.
An Emerging Global Blue Economy
After nearly a decade of negotiations, delegates from across the globe have reached an agreement on this new legally binding instrument. The four elements of the international treaty establish the foundation for collective action in tackling the ocean’s most pressing threats: 1) area-based management tools (ABMTs) such as marine protected areas (MPAs); 2) environmental impact assessments; 3) capacity building and technology transfer; and 4) fair and equitable sharing of benefits (both monetary and non-monetary) derived from activities with respect to marine genetic resources and digital sequence information. Together, these steps can help stem biodiversity loss and the degradation of ecosystems, build resilience to the adverse effects of climate change, protect ocean carbon cycling services, and improve the ability of all nations to advance more integrated, ecosystem-based and precautionary approaches to management while more equitably benefiting from natural resources.
MPAs and other ABMTs are tools that can be used to promote “place-based” conservation, that is, conservation programs developed by communities for the benefit of those communities. In designing these area-based tools, socio-ecological knowledge can inform the determination and designation of areas of particular interest for protection. This knowledge contributes to identifying conservation threats across space and time, while proactively adopting protective measures to guard against future threats. Increasingly, MPA design applies a dynamic approach to account for the evolving nature of place-based management, where climate is driving changes in species distribution and biogeographic regions.
The BBNJ Agreement addresses these challenges by setting forth requirements to ensure that processes for consultation and assessment of ABMT proposals are inclusive, transparent and open to all relevant stakeholders, including the scientific community, Indigenous Peoples and local communities. It distinguishes MPAs from other types of ABMTs by defining MPAs to focus on long term biodiversity conservation objectives, with sustainable use allowed only where consistent with those objectives. Criteria for any type of ABMT specifically includes climate-related criteria such as vulnerability to climate change and ocean acidification, cumulative impacts, and important ecological processes occurring therein. Alongside the establishment of a comprehensive system of ABMTs including ecologically representative and well-connected networks of MPA networks, the treaty also recognizes the need to enhance the health, productivity, and resilience of individual sites to environmental stressors, including those related to climate change, ocean acidification, and marine pollution.
To ensure action, the Conference of Parties (COP), or the decision-making body responsible for reviewing the implementation of the U.N. Framework Convention on Climate Change, is empowered to vote on establishment of ABMTs and related measures, to make recommendations to other international bodies such as regional fisheries management organizations, where measures are within their competence, and to adopt compatible measures. When all efforts to reach consensus have been exhausted, voting flexibility is crucial to avoid a small minority of States Parties blocking conservation action as has happened in the Southern Ocean under the Commission for the Conservation of Antarctic Marine Living Resources. The interests of other international bodies and instruments are protected through requirements that the COP “shall respect the competencies of and not undermine such bodies or instruments.” At the same time, the treaty requires States Parties to promote the objectives of the treaty in these other bodies, enables the COP to arrange for regular consultations to enhance cooperation and coordination, and invites other bodies and instruments to report on measures adopted to meet the objectives of the ABMTs established by the COP.
Environmental assessment has long been used by national governance systems to account for the environmental impacts associated with potential harmful activities, so that their effects on wildlife and habitat can be avoided, mitigated, or minimized. Environmental assessments provide situational awareness and a check on unfettered development and resource exploitation. Approaches to conducting environmental assessment have evolved to encompass consideration of the environmental stressors associated with human impacts, and how those stressors interact with one another, often synergistically. It is not enough to list the anticipated impacts associated with a potential activity. Rather, states and parties must explore how those impacts will interact with one another, and how that interaction will, in turn, impact the health of the ocean ecosystem.
The new treaty establishes a nationally driven Environmental Impact Assessment (EIA) process that will nevertheless be subject to broad consultation and review by the international community, and an obligation to ensure that approved activities can be conducted in a manner consistent with the prevention of significant adverse impacts, taking into account cumulative effects including climate change-related impacts. The treaty also advances a new tool for those seeking to integrate biodiversity and climate change into management of activities in ABNJ. The treaty enables strategic environmental assessments (SEAs) both by States Parties for new plans or programmes, and by the COP for an area or region to collate and synthesize available information, assess current and potential impacts, and identify data gaps and research priorities. Such information can support conservation planning as well as more sustainable management.
The Treaty’s Role in Centering the Newly Positioned Global Blue Economy on Equity
The negotiations had identified that most countries are disadvantaged because they lacked the capacity and technology to engage in activities in ABNJ as they attempted to grapple with managing areas within their own national jurisdictions. For example, the gap between developed and developing countries is evident, and developing countries have identified a need for training, access to relevant technologies and data, and research vessels. Further, a new treaty would place legal obligations on countries, raising the question of whether countries could effectively participate in the treaty’s implementation. Such capacity constraints cut across other elements of the package, including when undertaking or reviewing environmental impact assessments, the establishing or reviewing ABMTs, including MPAs, and exploration and exploitation of marine genetic resources. The new agreement builds on Part XIV of UNCLOS in which States have a duty to cooperate to support capacity-building and technology transfer. The BBNJ Agreement provides for a capacity-building committee mandated to review these efforts and make recommendations to the COP. Though equity concerns cut across all elements of the treaty (e.g., parachute science in establishing MPAs), the treaty’s provisions on the exploitation of marine genetic resources, processes to be used for capacity building, and transfer of marine technology addresses equity concerns raised throughout the agreement and embedded in international legal principles reflected in UNCLOS.
Areas beyond national jurisdiction have long been touted as holders of the next groundbreaking medical discovery, but currently lack a regime to govern issues of discovery, collection and utilization of marine genetic resources found in them because the discoveries have extended beyond any one nation’s sovereign control. The final text addresses the concerns that there would be no way of tracing resources, including their origin and subsequent utilization; currently developed countries account for most patents with a gene of marine origin. The most significant gain is the “BBNJ standardized batch identifier.” Parties will be required to tag material collected and report important information to the BBNJ clearinghouse to track both monetary and non-monetary benefits. The subject of benefit-sharing remained pertinent throughout the negotiations, as a group of countries argued that they were disadvantaged compared to countries and industries with the technology and capacity to explore and exploit marine genetics resources. The agreement establishes a committee to advise the COP on issues of benefit-sharing. Finally, the agreement also creates a Special Fund to support numerous efforts, including capacity-building.
Empowered with the text, the next step is signature, ratification and early implementation. It will be a global community effort, with each nation deciding whether and how to adopt the treaty into domestic law.
Beyond the mechanics of ratification, the international community representing scientific knowledge and ocean conservation will watch to see how interim arrangements for the COP can advance, while continuing to crosswalk between treaty regimes. Equipped with the new treaty, negotiators with an ocean focus can now return to the climate intersessionals this summer with the ocean-climate-biodiversity nexus in mind as they prepare for the second session of the annual Ocean and Climate Change Dialogue.
Meanwhile, the need for inclusive participation and early implementation continues. Of note, the very same tools set forth in the new high seas treaty are being used in exclusive economic zones, but not always effectively, impelling stepped up efforts throughout our interconnected ocean. The new treaty’s capacity-building elements can play a vital role in enabling all states to safeguard ocean health and more equitably participate in the enjoyment of its resources. Given the urgency of addressing the climate and biodiversity crises, and the ocean’s role in solving for those crises, it is essential that the multilateralism that drove this new agreement be leveraged to galvanize action in international and sovereign waters toward a blue economy of the future—an economy that centers justice and environmental security and actively manages for marine protection and avoidance of environmental impacts. These steps are essential if we are to meet clean energy and food security needs, as well as conserve marine life and habitats on a climate-challenged planet.