Biodiversity in High Seas Areas: An Integrated Legal Approach
In July 2017, a Preparatory Committee (PrepCom) of United Nations member states agreed to take the next step toward negotiating an international instrument to govern the marine biodiversity of the high seas. This was an important milestone in a process with roots in sustainable development and the UN Convention on the Law of the Sea (UNCLOS), the landmark treaty frequently described as “the constitution for the oceans.” The PrepCom will send a report and recommendations to the UN General Assembly (UNGA) for consideration in Fall 2017 for a new implementing agreement to UNCLOS to address the living marine environment in areas beyond the limits of national jurisdiction. This Insight offers an overview of the process leading to such negotiations. It then reviews the issues refined by the PrepCom for consideration by an intergovernmental conference on conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ).
Constituting nearly two-thirds of the world ocean and 95 percent of its volume, the high seas are ocean waters beyond 200 nautical miles (nm) from any state’s coastal baseline (or 12 nm for states that have not claimed an Exclusive Economic Zone) and the seabed beyond 200 nm (or extended continental shelf boundaries where they have been claimed). Marine biodiversity, including fisheries and marine genetic resources, exists within both areas of national control and areas beyond national jurisdiction, resulting in important transboundary effects and challenging commons considerations.
Ocean biodiversity is intimately linked with ecosystem services essential for human survival. Half of the oxygen humans breathe is produced by ocean plankton; the ocean absorbs heat and about 26 percent of the anthropogenic carbon dioxide in the atmosphere. More biodiverse than land, the ocean includes resources with and without commercial value. While primary production in areas of upwelling has no market value, it is the basis of the oceanic food web. Commercially important marine resources include seafood, hydrocarbons, and seabed minerals; marine life is the primary source of essential protein and micronutrients for about 3 billion people. Marine sources of unique genes, such as the thermophiles that live in super-heated hydrothermal vents, are potentially highly valuable for industrial, pharmaceutical, cosmetic, and other applications. Cultural and religious ecosystem services associated with high seas living resources have social value, particularly for island and other ocean-going peoples.
Harm to the living marine environment of the high seas and deep ocean is largely caused by economic uses of marine natural resources, by impacts of ships, and by pollution (including acidification, warming, and deoxygenation from climate forcing emissions); other activities include cable deployment, waste dumping, bioprospecting, energy generation, and marine scientific research.
UN Processes Leading to BBNJ
The United Nation’s seventeen Sustainable Development Goals further develop the concept of sustainable development as called for by Rio Principle 27, adopted at the 1992 United Nations Conference on Environment and Development. The Ocean Conference, June 2017, launched Sustainable Development Goal 14 – Life Below Water, to “conserve and sustainably use the oceans, seas and marine resources for sustainable development.” It formally called for a BBNJ intergovernmental negotiation, specifically supporting elements debated during the PrepCom meetings.
The BBNJ PrepCom was the result of years of work within the UN that also led to two other UNCLOS implementing agreements. In 1994, UNCLOS and its first implementing agreement, on deep seabed mining in high seas areas, came into force. In 1995, a second implementing agreement was adopted to address the conservation and management of straddling and highly migratory fish stocks; these include popular fish like pollock, mackerel, tuna, and swordfish. A host of regional and sectoral agreements and non-binding agreements developed independently both before and after UNCLOS.
UNCLOS stated that “the problems of ocean space are closely interrelated and need to be considered as a whole.” Expansion and development of the Law of the Sea nonetheless left gaps and inconsistencies in management of the world ocean. In 2015, UNGA Resolution 69/292 officially launched the two-year PrepCom process to make recommendations to the UNGA on elements of a draft text for an international legally binding instrument, implementing UNCLOS and open to non-UNCLOS parties as well.
Between March 2016 and July 2017, the BBNJ PrepCom met for four two-week sessions to explore elements of the eventual text. The PrepCom was characterized by transparency: all meetings, until the final days, were open to intergovernmental organizations and civil society to observe and to speak. These participants provided expertise on complex issues like bioconnectivity between marine regions, EIA technical standards, MGR product development pathways, ocean observation capacity building, and dispute settlement.
BBNJ Preparatory Committee Report
The UNGA’s mandate to the PrepCom was to address:
the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology.
The PrepCom’s Report to the UNGA includes Section A, comprising areas of convergence among most delegations and Section B, for areas of greater divergence.
Key issues of convergence include objectives, principles, and approaches. The preambular elements recognize: UNCLOS’s central role; the need to respect other relevant legal instruments and frameworks, and global, regional, and sectoral bodies; the need to better address conservation and sustainable use of BBNJ through a new UNCLOS implementing agreement; the need for greater cooperation and coordination; and for assistance to developing countries. The basic objective is “to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction through effective implementation of the Convention”; other objectives can be added. Principles and approaches include: due regard, sustainable development, ecosystem approach, precaution, adaptive management, resilience to the effects of climate change, and transparency. The devil will be in the details of some elements, including the use of terms and the scope of application of the instrument.
Perhaps the least controversial of the topics is environmental impact assessment (EIA). The obligation to perform EIA when an activity has the potential to cause significant transboundary harm was unquestioned during the PrepCom meetings, no doubt due to the inclusion of an EIA obligation in UNCLOS, the widespread domestic practice of EIA, and its recognition as a general principle of international law by both the International Court of Justice (ICJ) in the Pulp Mills case and the International Tribunal for the Law of the Sea (ITLOS) in its advisory opinion on state responsibility for deep seabed mining in areas beyond national jurisdiction. Detailed language on the EIA content, triggers, scope, public participation, and decision making will be taken up in the next phase. The ICJ’s elaboration of international rules for EIAs in its 2015 Certain Activities judgment will be influential, as will the International Seabed Authority’s forthcoming deep seabed mining regulations.
The PrepCom addressed the potential for discovery of commercially valuable genetic and biochemical resources, referred to here as marine genetic resources (MGR). The BBNJ Report sets out elements to be considered regarding the nature of the resources, access to MGR, sharing monetary and non-monetary benefits of these commons resources, whether and how to apply intellectual property rights, and related issues. Since marine life can be characterized as both a commodity to be harvested and a source of genetic information, there is a potential conflict between fisheries management and MGR regulation. The Prepcom discussed the relevance to MGR of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (CBD); processes under the World Intellectual Property Organization; and World Trade Organization rules.
A key strategy to managing the multiple stressors on ocean biodiversity is the use of Area Based Management Tools (ABMT). During the PrepCom proceedings, the focus was on Marine Protected Areas (MPAs), an important ABMT. Discussion of the need for ABMTs and the criteria for adopting them was driven by scientific information, which was often provided by side events and workshops associated with the PrepCom, and by standards developed by expert bodies like the CBD’s criteria for describing ecologically or biologically significant marine areas and the International Union for Conservation of Nature’s Protected Area Management criteria. Proposals for how ABMTs will be designated, by whom, and by what process will continue to evolve.
UNCLOS recognizes differing ability of states to benefit from the ocean and calls for capacity-building and transfer of marine technology. While specifics will be developed in the intergovernmental conference, the PrepCom report identifies scientific research, education, data and specialized knowledge as broad categories. Delegations emphasized the importance of capacity-building and technology transfer for least developed countries, landlocked developing countries, small island developing states, and coastal African states. They also highlighted the special situation of geographically disadvantaged states—those with limited or constrained ocean access.
The PrepCom outlined options for the mechanics of a BBNJ agreement. Scientific research and information should play an important role in implementation, and an information clearing house or data repositories will be necessary. Essential final clauses will include financial resources, settlement of disputes, responsibility and liability.
The relationship of the new BBNJ instrument with existing instruments, frameworks and bodies needs greater clarity. The UN identifies some seventy global and regional agreements on its indicative list of relevant treaties, including the Convention on Biological Diversity, patent treaties, regional seas agreements, and conventions relating to particular fish stocks. Perceived conflicts engendered some of the most acrimonious interventions by those concerned that their role will be diminished, their work increased or their prerogatives infringed upon. In tension with those concerns is the reality that there are governance gaps because sectoral bodies have limited mandates for their target species or activities and regional bodies have geographic constraints on their ability to manage threatened resources that extend beyond their areas of legal competence. More work remains to be done to understand the legal, scientific, and logistical relationships between what exists and what is proposed.
The legal nature of areas beyond national jurisdiction remains the most elusive question. The Romans considered the high seas to be a public space, and later doctrine viewed the oceans as res nullius (belonging to none). As the ocean becomes more accessible and vulnerable and its value is recognized, it is now generally thought of as res communis (belonging to all). As applied, both principles focus on rights to take from the ocean rather than on duties to protect the marine environment required by UNCLOS, Part XII (and by the fact of the world ocean’s declining health). Both are included in Part B of the PrepCom Report as areas requiring further discussion. But those tags are insufficient to guide legal outcomes. Arvid Pardo’s original principle, “that ocean space beyond national jurisdiction is a common heritage of mankind,” might have sufficed. Common heritage of humankind is advocated by some states as a defining principle; others view it as competing with the freedom of the seas, and yet others say that both principles can act together. In the PrepCom meetings, common concern and common interest of humankind have also been proposed as relevant principles. There has as yet been little discussion of the role of states as public trustees of the high seas, but the public trust doctrine is an attractive option that emphasizes conservation and responsibility.
The states and members of civil society that participated in the PrepCom have moved the project forward by sketching the outlines of the agreement we need to achieve the future we want. The next step is for a state or states to propose a resolution to the UNGA session meeting in fall 2017 to convene an intergovernmental conference as soon as possible. Assuming that the resolution is adopted, the conference could begin as early as 2018. When this is accomplished, the hard work of negotiating the text begins.
About the Author: Cymie Payne, an ASIL member, is a professor at Rutgers University in New Jersey and advisor to the International Union for Conservation of Nature delegation to BBNJ.
 U.N. Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered in force 16 Nov. 16, 1994) [hereinafter UNCLOS].
 An advance, unedited version of the Chair’s report can be found on the UN Division of Ocean Affairs and the Law of the Sea (DOALOS) website at: http://www.un.org/depts/los/biodiversity/prepcom_files/Procedural_report_of_BBNJ_PrepCom.pdf. Other relevant documents are also available on the DOALOS website and at the UN Papersmart website: https://papersmart.unmeetings.org/en/. Of particular interest is the Chair's streamlined non-paper on elements of a draft text of an international legally-binding instrument under the United Nations Convention of the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (circulated to delegates at the fourth PrepCom) available at: https://papersmart.unmeetings.org/media2/14685861/chiars-streamlined-non-paper.pdf.
 Some have questioned whether the seabed and subsoil are part of the high seas. Cf. Tullio Treves, High Seas, Max Planck Encyclopedia of Public International Law, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1174?rskey=Sj0rpR&result=1&prd=EPIL (“the notion of high seas includes the seabed and subsoil”) and Fernanda Millicay, A Legal Regime for the Biodiversity of the Area, in Law, Science & Ocean Management 739, 799–803 (Myron Nordquist, Ronán Long, Tomas Heidar, & John Norton Moore eds., 2007) (arguing that the high seas do not include the seabed and subsoil).
 Group of Experts of the Regular Process, First Global Integrated Marine Assessment (World Ocean Assessment I), Summary at 1–4 (2016).
 U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I), annex I (Aug. 12, 1992). Rio Declaration Principle 27 states that “States and people shall cooperate in good faith and in a spirit of partnership in the fulfilment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development.” For the earlier history of sustainable development, see Nico Schrijver, The Evolution of Sustainable Development in International Law: Inception, Meaning and Status (2008).
 G.A. Res. 70/1, Transforming our World: The 2030 Agenda for Sustainable Development (Oct. 21, 2015) includes seven targets to be reached in 2020, 2025 and 2030, and three goals. The conference website is: https://oceanconference.un.org/.
 U.N. Conference to Support the Implementation of Sustainable Development Goal 14, Our Ocean, Our Future: Call for Action, U.N. Doc. A/CONF.230/11, annex (May 30, 2017), available at https://undocs.org/A/CONF.230/11.
 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, 2167 U.N.T.S. 3 (entered into force Dec. 11, 2001).
 G.A. Res. A/49/28 (Dec. 6, 1994). The annual UNGA resolution on oceans and the law of the sea provides a useful means of tracking issues and activities, such as capacity building, human trafficking, land-based pollution of the ocean, and implementation of sustainable development initiatives like the Johannesburg Plan of Implementation.
 G.A. Res. 69/292, ¶ 2 (June 19, 2015).
 Pulp Mills on the River Uruguay (Arg. v. Uru.). Merits, Judgment, 2010 I.C.J. Rep. 14, 73, , ¶ 205 (Apr. 20).
 UNCLOS, supra note 1, art. 206; ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Case No. 17, Advisory Opinion of Feb. 1, 2011, 2011 ITLOS Rep. 10, ¶¶ 122, 141–50.
 Joined cases concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicar.) and Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgment, 2015 I.C.J. Rep. 665 (Dec. 16).
 The ISA has adopted recommendations and regulations on exploration and prospecting for certain minerals, available at https://www.isa.org.jm/mining-code, and is developing regulations for commercial exploitation. See ISBA, Draft Regulations on Exploitation of Mineral Resources in the Area, ISBA/23/LTC/CRP.3* (Aug. 8, 2017), available at https://www.isa.org.jm/files/documents/EN/Regs/DraftExpl/ISBA23-LTC-CRP3-Rev.pdf.
 The relationship to work on intellectual property and genetic resources underway under the aegis of the World Intellectual Property Organization (WIPO) remains to be determined. See, e.g., WIPO, Second Revision of the Consolidated Document Relating to Intellectual Property and Genetic Resources, WIPO/GRTKF/IC/30/FACILITATORS DOCUMENT (addressing patent disclosure obligations for genetic resources from areas beyond national jurisdictions and associated traditional knowledge), available athttp://www.wipo.int/meetings/en/doc_details.jsp?doc_id=340736; Claudio Chiarolla, The Work of the World Intellectual Property Organization (WIPO) and Its Possible Relevance for Global Ocean Governance (Dec. 1, 2016) (Comprehensive Study on Effective and Sustainable Global Ocean Governance, IMO (International Maritime Organization)/IMLI (International Maritime Law Institute) Research Report to the Nippon Foundation, 2016), available at https://ssrn.com/abstract=3002489.
 Division for Ocean Affairs and the Law of the Sea, UN Oceans & Law of the Sea, http://www.un.org/depts/los/biodiversity/prepcom_files/Indicative_list_of_global_treaties.pdf; Division for Ocean Affairs and the Law of the Sea, UN Oceans & Law of the Seahttp://www.un.org/depts/los/biodiversity/prepcom_files/Indicative_list_of_regional_treaties.pdf.
 Institutes II.1.1 (De Rerum Divisione), translated in Thomas Collett Sandars, The Institutes of Justinian 90 (4th ed. 1903).
 See UNCLOS, supra note 1, art. 87, part XI (The Area); Agreement Relating to the Implementation of Part XI of the Law of the Sea Convention, Nov. 16, 1994, 1836 U.N.T.S. 3.
 Arvid Pardo, Thirteenth Statement to the Committee on the Peaceful Uses of the Seabed and the Ocean Floor March 23, 1971, in The Common Heritage: Selected Papers on Oceans and World Order 1967–1974, at 221 (1975).
 Draft Res. Submitted by the President of the General Assembly, The Future We Want, U.N. Doc. A/66/L.56 (Sept. 11, 2012), available at http://www.un.org/ga/search/view_doc.asp?symbol=A/66/L.56.