A high seas treaty may not be as UNCLOS as it seems

December 22, 2023 COP28 blog

Dec 11, 2023

By Geetanjali Talpade, JD Candidate ‘24, University of Maine School of Law

Both domestic and international environmental laws, while relatively recently conceived (the first major U.S. legislation, the National Environmental Policy Act, was passed in 1970), overall pre-date the common modern understanding of climate change. Environmental activism has historically focused on preservation of the environment and biodiversity against human impacts like pollution and industrialization. At first glance, climate change law is aligned with those goals: to protect the environment from harmful human activity – previously primarily pollution, now CO2 emissions resulting from reliance on fossil fuels. But the tools that environmentalists have thus far relied on may be ill-matched to address climate change. 

In the international realm, this becomes glaringly apparent when looking at Article XII of the United Nations Convention on the Law of the Sea (UNCLOS), adopted in 1982. UNCLOS (often called “the constitution of the sea”) establishes national jurisdictional lines and regulates human activity in the ocean, obligating states to, inter alia, protect and preserve the marine environment. These jurisdictional lines, however, end 200 nautical miles from the shore – leaving the high seas beyond national jurisdiction and thus unprotected.

This is especially a problem when it comes to climate change. The high seas themselves comprise ⅔ of the world’s oceans, covering almost 50% of Earth’s surface and representing an estimated 95% of all occupied habitat on our planet. They generate 50% of the oxygen we need, absorb 25-30% of excess CO2, and capture 93% of excess heat generated by fossil fuel emissions. They capture and store half a billion tons of carbon (or $145 billion) annually through a process called the biological pump, which (perhaps obviously) relies on biological organisms from phytoplankton to whales to sequester carbon into the deep ocean. The high seas (and their inhabitants) are the Earth’s largest carbon sink, and a significant tool for climate mitigation. They are also highly vulnerable to climate change, climate interventions, and direct human disturbance; as Natalie highlights, rising global temperatures spell dire consequences for the ocean, its biodiversity, and coastal communities.  And the high seas’ biodiversity present complex governance challenges: they have high levels of heterogeneity and endemic species, with mutualistic species tending towards great longevity and late maturity. This means that each input triggers a range of responses across species, with significant ecological ripple effects on the more regulated national waters.

The U.N. High Seas Treaty, also known as Biodiversity Beyond National Jurisdiction (BBNJ) Treaty, considers these fundamental complexities to close the jurisdictional gap. The BBNJ, an international legally binding instrument signed by 84 U.N. Member States in September of this year, is the effort to “ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination.” 

Today’s panel event “How Can International Ocean Law Assist States to Meet Their Climate Change Obligations?” convened science (Lisa Levin, deep sea biologist), law (Nilüfer Oral and Cymie Patyne, law professors), advocacy (Rebecca Hubbard, Director of High Seas Alliance), policy (Javier Davalos, attorney with Interamerican Association of Environmental Defense), and diplomacy (Walter Shuldt, Chief Negotiator for Government of Ecuador) to examine the BBNJ’s structure and potential impact on climate change. 

The BBNJ has four key elements:

  1. Marine genetic resources (MGRs), including the fair and equitable sharing of benefits – Part II (Art. 9-16) – MGRs include physical genetic materials “of actual or potential value.” Currently only a limited number of vessels can collect organisms to assist in development and commercialization of products (including medicine, cosmetics, pharmaceuticals, and food supplements). For the first time, companies would be required to pay for the use of genetic resources obtained from the high seas. The companies are then required to share both the monetary and non-monetary (research, technology, capacity-building) benefits. The access and benefit-sharing committee, which would establish benefit-sharing guidelines, would be elected based in part on qualifications, gender balance, and geographic distribution (including small island & landlocked developing states and least developed countries). Presumably the recipients would be developing countries, out of recognition of their limited economic capacity to conduct independent research, but the specifics are yet to be determined. Notably, Part II, Art. 10 specifically exclude fish from the definition of MGRs, despite the essential role fish and fishing play in marine ecosystems (fishing companies have overexploited more than ⅓ of the ocean’s fish stocks, both within national jurisdiction and in the high seas). Perhaps predictably, the fishing provisions and the fair and equitable benefit-sharing were the two major points of dispute during negotiations – with the inclusion of non-monetary benefits resulting from efforts from developing states.
  2. Area-based management tools (ABMTs), including marine protected areas (MPAs) – Part III (Art. 17-26) – ABMTs would establish MPAs to achieve long-term conservation and sustainable use goals (as long as they do not infringe on any areas within national jurisdiction). In addition to addressing biodiversity and strengthening cooperation between stakeholders, ABMTs are intended to support socioeconomic & cultural objectives and developing states’ abilities to manage MPAs. After consultation with relevant stakeholders (which include State bodies, civil society, the scientific community, the private sector, Indigenous Peoples, and local communities), the ABMT is adopted when consensus is reached (when possible), or by ¾ majority of present parties. There is an opt-out provision for objecting parties within 120 days after voting, but the decision is otherwise binding for all treaty parties.
  3. Environmental impact assessments (EIAs) – Part IV (Art. 27-39) – EIAs are intended to evaluate the impact of the proposed activity on marine biodiversity and ecosystems (especially when the activity may have more than a minor effect on the marine environment or the effects of the activity are unknown/poorly understood). Parties would be obligated to conduct an EIA in two circumstances: (1) for planned activities in the high seas that may have potential impacts on the marine environment; and (2) for planned activities within national jurisdiction that may negatively impact the high seas. Parties may additionally consider conducting strategic environmental assessments (SEAs). SEAs are more holistic, evaluating long-term environmental protection – especially relevant when measuring the costs and benefits of conservation with the long-term costs of worsening climate change. However, parties are not obliged to conduct an SEA, and the specific mechanics (and exhaustiveness) of EIAs are dictated by the state’s domestic policies. Additionally, EIAs have no ability to control the eventual outcome – they merely force decision-makers to include environmental values in their final resolution.
  4. Capacity building and the transfer of marine technology (CB&TMT) – Part V (Art. 40-47) – the principle of CB&TMT is embedded throughout BBNJ (and, incidentally, throughout COP28), but receives a stand-alone part, underlining its significance. CB&TMG is intended to make the treaty “future proof” by encouraging exchanging information, building awareness, and strengthening infrastructural, financial, and institutional frameworks. Because of the inherently unpredictable nature of technology development and state needs, this provision was drafted to be flexible. It lacks a specific definition of capacity building in Part I Article 1, opting instead for a broad non-exhaustive list of capacity-building initiatives. Parties are obligated to cooperate in CB&TMT, which would be a “country-driven, transparent, effective and iterative process that is participatory, cross-cutting and gender responsive.” CB&TMT is focused especially on developing and least developed states.

As you can see, questions inevitably remain – the exclusion of fish and fishing; whether EIAs’ have the ability to halt destructive human activities while encouraging climate change mitigation efforts; would the United States (who, despite recognizing it as customary international law, has nevertheless not ratified UNCLOS) be a party and how that would impact BBNJ’s effectiveness; what to do about marine carbon dioxide removal technologies and deep-seabed mining for minerals used to develop renewables; and so on. 

But, as Cymie Payne emphasizes, 1.5° is too warm for many marine ecosystems: time is not on our side, and the BBNJ would be a significant win. The BBNJ would make it possible to protect 30% of the oceans by 2030 (as part of the 30 by 30 goal). It is guided by, inter alia, the polluter-pays principle, the rights and knowledge of Indigenous Peoples, scientific data, and recognition of the special interests and circumstances of developing and least developed countries (Part I, Art. 7). Gender balance and responsiveness is included in several provisions (but not enough, according to me). Greenpeace calls the BBNJ “the biggest conservation victory ever.” 

The BBNJ requires 60 countries to ratify by September 2025 to go into effect – it currently has zero (the 84 countries that have signed the treaty are merely indicating a willingness to eventually ratify. Individual countries must ratify through their own domestic legal and legislative processes.). On the other hand, it has been open for ratification for barely 2 months, already with significant support from the EU. It has taken two decades for 190 countries to agree on the final text (the High Seas Alliance has been working since 2011). International law inherently moves slowly; consider how long it takes for domestic U.S. policy to move forward. The race for ratification is on – it might just be a case of the tortoise, not the hare.