Overfishing, pollution, acidification, biodiversity loss, oil, gas, and minerals mining are just a few of the problems facing the world’s oceans based on different forms of human use and impacts. While nations have laws and regulations that address these issues within their own territory, the ocean areas beyond that territory, generally starting at 200 miles from shore, are not governed by any country. Currently, there is no coherent framework for managing and protecting these areas, which cover 70% of the world’s surface.
After the latest round of negotiations last month, the member states of the United Nations still have yet to agree on terms for the UN Ocean Treaty, the first of its kind focused on biodiversity, and aimed at protecting marine life and resources in international waters.
The stall in negotiations, paired with the recent passing of the Inflation Reduction Act in the United States, heralds a ramping up of clean energy technologies which will require resources, many of which can be mined from deep under the ocean’s surface, adding further urgency to prevent overexploitation of resources on the high seas.
Though some see the result of the latest rounds of negotiations as a failure, Peter Auster, UConn Research Professor Emeritus of Marine Sciences and Senior Research Scientist at Mystic Aquarium, says the negotiations are part of a complex process and counsels that no one should lose hope, but rather learn about what’s at stake and what can be done.
A crash course in high seas governance
To understand the motivation behind the new treaty, it is important to have some insight into the complexities it is aimed at simplifying.
Currently, governance of the high seas is fragmented and multilayered.
Auster explains that nations with coasts have jurisdiction 200 miles out from shore, called “exclusive economic zones” (EEZ). However, since 64% of the planet’s oceans lie beyond EEZs, that leaves enormous areas which do not fall under the governance of any country, referred to as the “high seas” when describing the water column or “the Area” when describing the sea floor.
There are already treaties, international agreements, and UN structures that govern the use of areas beyond national jurisdiction, explains Auster. The UN Convention on the Law of the Sea provides the legal framework for making agreements and the general obligations of nations to meet these obligations.
This is where things start to get complicated.
Different resources and activities, such as fishing or mining, fall under the control of different international agencies and organizations. Mineral resources on the ocean floor fall under the purview of the International Seabed Authority (ISA). Deep sea fishing in most areas are managed by regional fishery management organizations, made up of members from different countries who have agreed to jointly decide goals and limits for vessels from their nations. Certain species of highly migratory fish have specific managing organizations, for instance, the International Commission for the Conservation of Atlantic Tunas focuses on tuna and tuna-like species in the Atlantic, with similar treaty organizations in the Pacific and Indian Oceans.
The United Nations Food and Agricultural Organization has guidelines for designating “vulnerable marine ecosystems” and regional fisheries management bodies implement those guidelines. However, there is no specific coordination or requirement for mining activities under the ISA.
Further, marine protected areas have been designated under various intergovernmental organizations and other areas may be “described” by the Convention of Biological Diversity as being areas of ecological or biologically significant areas but which are currently not managed. There are undoubtedly many more such areas that have not been identified due to our incomplete knowledge of ecological processes in the high seas.
To try to connect and manage the moving parts more effectively, the UN seeks to agree upon a Biodiversity in Areas Beyond National Jurisdiction treaty, or “BBNJ treaty.” This will establish a legal framework for more effective management and protection of the ocean from multiple threats.
Though not directly involved in these negotiations, Auster has participated in multiple conservation issues with the UN, FAO, and several regional fishery management organizations, all related to the BBNJ treaty.
There are four areas the BBNJ treaty focuses on: the conservation of marine genetic resources; implementing area-based management tools like marine protected areas; implementing environmental impact assessments to ensure activities are sustainable; and capacity building and transfer of technology to developing nations.
If passed, the treaty could vastly increase the area of the ocean protected from exploitation, from the current level of 2.4%.
Gaps in governance
The patchwork nature of current governance means there’s no overarching agreement to manage the expanding human uses of the high seas or the deep oceans, says Auster.
“With this treaty, we fill in the gaps on those elements that we already don’t have agreements on in some fashion and provide an overarching context for conserving and sustainably using biodiversity in all its forms beyond national jurisdictions.”
Agreements on the language are among the details holding up the process. For example, there is conflict about the definition of “marine protected area,” which have a range of protections or conservation measures that can be implemented. For the U.S., the 200-mile jurisdiction surrounding the coasts is at the least restrictive form of a marine protected area. In principle, it’s managed for sustainable use of biological diversity, says Auster. “But we don’t always meet that goal, and sometimes we just don’t know whether we are or not due to lack of data.”
However, Auster points out that we have places like the Northeast Canyons and Seamounts Marine National Monument that will be fully protected in a few months.
“That will close some gaps, but that doesn’t mean that if someone wanted to go mine other seamounts beyond the 200-mile limit, for instance, the International Seabed Authority couldn’t allow that to happen. That’s going on now in the Pacific in the Clarion-Clipperton zone, where there’s going to be some commercial-scale manganese polymetallic nodule mining possibly as early as 2024.”
What do these closings for mining mean for fishing or shipping? Current treaties and organizations create a very piecemeal approach to management and there’s nothing that ties the fisheries closures and minerals closures together, says Auster.
Despite the treaty negotiation’s long timeline – 15 years and counting – Auster asserts that nobody should think the efforts have failed.
“Negotiations are ongoing, and it seems like all the players have goodwill, they just haven’t gotten through all the sticking points yet, and there are multiple sticking points,” he says. “We can’t afford to not do this. We can’t walk away; it is not a solution.”
‘There are solutions’
Auster says that while we may not be able to sit in on these negotiations, it is vital to become educated about issues like the transition to renewable energy, conservation, and sustainability.
“There are solutions, we just need to agree on what we’re willing to do and commit to them at the local level, state level, national level, and then finally, with this treaty, the international level because all these things are a global issue,” he says.
The longer it takes to reach a firm agreement on these issues, the more the high seas will start to resemble a free-for-all of competing interests, Auster says.
“People that work in government work for us. Everybody has a voice, both at the voting booth and in writing the people that deal with these issues,” he says. “We have a UN ambassador, State Department, and resource agencies who go to all these meetings and listens to the talks and negotiates. We need to vote and participate at all the democratic processes you can. Let those in power know where they’re where their constituents stand. Everybody can play in this game at some level.”