The New High Seas Biodiversity Treaty Offers Conservation, Equity, and Regulatory Certainty

Introduction

Oxygen production, food, carbon dioxide sequestration, and more than ten million species of living creatures (some of surpassing beauty) are found in the marine environment beyond national jurisdiction, which encompasses nearly half of the Earth’s surface. Its intrinsic value and our dependence on the ecosystem services it provides are sufficient reasons to protect it, yet less than one percent is now protected under international law. This ocean space shared by all nations is inhabited by life forms that are able to thrive under crushing pressure, intense heat and cold, total lack of sunlight, and the chemical outpourings of hydrothermal vents. Their adaptations are mapped in their genetic codes, called marine genetic resources (MGR). Products based on this information have already been commercialized for uses that include medical treatments and food crops, but the regulatory framework is uncertain, and benefits primarily flow to states with advanced technology. [1] Better governance for conservation, a more certain regulatory situation for investment, and integration of equity can now become a reality with the new High Seas Biodiversity Treaty.

The Treaty’s Adoption and Objectives

The Treaty was adopted on June 19, 2023, as the third implementing agreement to the UN Convention on the Law of the Sea (UNCLOS). [2] This new international agreement seeks to fulfill UNCLOS’s objectives to protect and preserve the marine environment in areas beyond national jurisdiction (ABNJ) (the seabed, the water column, and, by inference, the air space above), to ensure adequate assessment and monitoring of potentially harmful activities, to acknowledge the shared ocean as the common heritage of humankind, to promote the transfer of marine technology on fair and reasonable terms and conditions, and to support the development and use of marine scientific research. [3] In this era of struggle between nationalism and multilateralism, the treaty represents a commitment to solve global problems together, with most states parties to UNCLOS and several states that have not ratified UNCLOS participating in the negotiation. The adoption of the treaty text by consensus reflected their enthusiasm. This Insight details its underlying approach, describes the history leading up to the Treaty, outlines its major features, and identifies some outstanding questions about its relationship to UNCLOS.

The Treaty’s Approach to Marine Conservation and Its History

The Treaty’s biodiversity conservation measures seek to prevent injury to ocean life and to build its resilience to harms that cannot be prevented. Humanity faces a triple planetary crisis: biodiversity loss, climate change, and pollution. Therefore, the Treaty’s central strategies to conserve marine biodiversity are to prevent or reduce damage from activities that humans can control by requiring environmental impact assessment of new and unregulated activities in ABNJ and to limit activities in marine areas characterized by values like uniqueness, rarity, and vulnerability to ocean warming and acidification.

As early as 2000, civil society organizations like the International Union for Conservation of Nature called for the international community to protect ocean life. In 2004 the United Nations created an ad hoc open-ended informal working group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (BBNJ). Completing the task would take another 19 years. [4] The BBNJ Working Group fashioned the 2011 “package deal” addressing four elements, discussed below. The 2012 UN Conference on Sustainable Development called for a new implementing agreement under UNCLOS, advancing step by step toward the negotiation of a treaty. [5]

In 2015 the UN General Assembly launched the negotiation of the High Seas Biodiversity Treaty, which came to be known as the “BBNJ Agreement” [6] and has the formal title “Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.” The 2015 resolution established a Preparatory Committee tasked with developing the basic treaty elements. Two years later, the UN General Assembly further mandated the negotiation of the BBNJ Agreement. [7] Seven meetings were held over the next several years, with interruption and delay caused by COVID.

The final negotiating session continued through the night of March 3, 2023, and into the following evening, when an agreed text was welcomed by the exhausted delegates with the declaration by the President of the intergovernmental conference, Ambassador Rena Lee, that “the ship has reached the shore.” The High Seas Biodiversity Treaty will be opened for signature on September 20, 2023, at the United Nations, and will remain so for two years. Entry into force will require 60 states to accept, approve or ratify it. Supporters of the treaty are urging states to sign and to ratify so that it comes into force by 2025.

The Package Deal and Institutions

The UN General Assembly mandated four parts to the Treaty, based on the package deal:

1. the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole,
2. marine genetic resources, including questions on the sharing of benefits,
3. measures such as area-based management tools, including marine protected areas,
4. environmental impact assessments, and
5. capacity-building and the transfer of marine technology. [8]

It included the proviso that “the process indicated in paragraph 1 above [i.e., the negotiation] should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies.”

Potentially the most consequential result of the Treaty will be the creation of the Conference of the Parties (COP). UNCLOS does not provide a regular forum for states to meet, set policy goals, and collaborate to achieve them, although we are used to seeing the climate change regime and other multilateral agreements make good use of their COPs. Other treaty bodies will include a Scientific and Technical Body, a Secretariat, and a Clearing-House Mechanism. Committees are also established for access and benefit-sharing, capacity-building and transfer of marine technology, finance, and implementation and compliance.

General principles and approaches set out in Article 7 capture principles found in UNCLOS and reflect more recent developments in international environmental law. An element shared with UNCLOS is the non-transfer of damage or hazards from one area to another and the non-transformation of one type of pollution into another. [9] The polluter pays principle reinforces the statement in the Preamble that “as set out in the Convention, States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment and may be liable in accordance with international law.” Formulations of precaution were intensely debated, with divergent views ultimately reconciled by reference to “the precautionary principle or precautionary approach, as appropriate.”

Common

SDGs, Targets, and Indicators

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 14: Life Below Water

The article discusses the need to protect and preserve the marine environment beyond national jurisdiction, which is directly related to SDG 14, which aims to conserve and sustainably use the oceans, seas, and marine resources.

2. What specific targets under those SDGs can be identified based on the article’s content?

• Target 14.2: By 2020, sustainably manage and protect marine and coastal ecosystems to avoid significant adverse impacts, including by strengthening their resilience, and take action for their restoration in order to achieve healthy and productive oceans.
• Target 14.5: By 2020, conserve at least 10 percent of coastal and marine areas, consistent with national and international law and based on the best available scientific information.
• Target 14.a: Increase scientific knowledge, develop research capacity and transfer marine technology, taking into account the Intergovernmental Oceanographic Commission Criteria and Guidelines on the Transfer of Marine Technology, in order to improve ocean health and to enhance the contribution of marine biodiversity to the development of developing countries, in particular small island developing States and least developed countries.

The article emphasizes the need for conservation measures, including environmental impact assessments and area-based management tools such as marine protected areas. These align with Target 14.2. The creation of marine protected areas is also mentioned, which relates to Target 14.5. Additionally, the article highlights the importance of capacity building and transfer of marine technology, which corresponds to Target 14.a.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

• Indicator 14.2.1: Proportion of national exclusive economic zones managed using ecosystem-based approaches.
• Indicator 14.5.1: Coverage of protected areas in relation to marine areas.
• Indicator 14.a.1: Proportion of total research budget allocated to research in the field of marine technology.

The article does not explicitly mention these indicators, but the concepts discussed in the article, such as ecosystem-based approaches, protected areas, and research in the field of marine technology, are relevant to these indicators.

Table: SDGs, Targets, and Indicators

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Source: asil.org

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