How a landmark biodiversity treaty will transform life on the high seas

(Bloomberg) — An agreement reached this month on the text of a landmark United Nations marine biodiversity treaty will transform the way countries, companies and scientific organizations do business on the high seas, which account for 60% of the world’s oceans oceans beyond the jurisdiction of any nation. If the deal is ratified as expected, what was once an essentially lawless ocean will be managed to protect ecosystems that support life on Earth at a time when climate impacts are intensifying.

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The High Seas Biodiversity Convention is the most far-reaching marine agreement since the United Nations Convention on the Law of the Sea (UNCLOS) of 1982, which regulates activities in international waters, including seabed mining. While UNCLOS does not mention the word “biodiversity,” the new treaty specifies threats to marine life in the 21st century, including plastic pollution and climate-related ocean acidification and depletion.

The treaty also creates institutions for implementation, including a secretariat to manage day-to-day affairs and a scientific and technical body to review environmental impact assessments and proposals to create marine protected areas (MPAs) and advise on other matters. Final decisions are made by the Member States, which meet regularly as the Conference of the Parties (COP). (The treaty does not regulate fisheries on the high seas managed by other international organizations.)

The result of nearly five years of negotiations, often deadlocked by differences between rich and poor nations, the treaty also reflects compromises, some negotiated in a final 36-hour negotiation session on March 4.

Sixty nations must ratify the Marine Biological Diversity Treaty for it to come into effect, and that timeline depends on each country’s process for approving international agreements. If the treaty is ratified, here’s how its key provisions will transform life and commerce on the high seas.

marine protected areas

For the first time, the treaty allows nations to propose the establishment of marine protected areas in international waters to “conserve and sustainably use areas in need of protection.”

An application to create an MPA must include data on the area’s biological uniqueness, threats to species, and a management and monitoring plan. After the scientific and technical panel has reviewed and commented on the proposal, it will be released for consultation with other nations, scientists, indigenous communities and the general public.

Other UN treaty organizations require consensus before action can be taken. Such a condition in the Antarctic Treaty, for example, has allowed one or two nations to repeatedly obstruct efforts to expand protected areas on the continent. The Biodiversity Agreement on the High Seas, on the other hand, allows an MPA to be approved by a three-quarters majority of the COP if consensus cannot be reached.

“This is definitely a big step forward and can make this agreement workable,” says Kristina Gjerde, Senior High Sea Advisor at the International Union for Conservation of Nature.

Duncan Currie, an international environmental advocate specializing in ocean issues, says he is already working with organizations in Chile on a proposal to set up an MPA off the west coast of South America. “There will be boats in the water this year” to collect scientific data for the proposal, he says. “There will be other efforts to develop MPAs that will be prioritized as the treaty is ratified.”

The creation of high seas protected areas could come into conflict with the International Seabed Authority (ISA), a UN-affiliated organization established under UNCLOS in 1994 to regulate seabed mining. A memo recently submitted by the ISA Secretariat to high seas treaty negotiators affirms the ISA’s authority over the seabed and states that it has the expertise to develop MPAs.

The Biodiversity Agreement obliges the COP not to undermine the jurisprudence of other international organizations. But Pradeep Singh, a marine policy scientist at the University of Bremen in Germany, pointed to the conundrum of establishing marine protected areas out at sea when industrial activities on the seabed beneath could pollute them.

“It doesn’t make ecological sense if we have offshore protected areas, but the ISA allows mining on the seabed,” he says.

The treaty empowers the COP to take emergency action when a natural or man-made disaster threatens to cause serious or irreparable damage to marine biodiversity on the high seas. Cymie Payne, an associate professor at Rutgers Law School and an expert on international ocean governance, says such action could be taken if there is an oil spill or other industrial incident. “They could completely close the area for a period of time until either the spill can be cleaned up or natural deterioration resolves the pollution problem,” she says.

Environmental Impact Assessments

The treaty’s requirement to conduct environmental impact assessments (EIAs) for activities that could have harmful or unknown effects on the high seas comes amid growing interest in using the ocean to absorb and store carbon dioxide.

Under the Treaty, national governments are responsible for determining whether a proposed measure by a body under their authority requires an EIA. If this is the case, the government must carry out the assessment and submit the report to the Scientific and Technical Board for review. (If a government decides that an EIA is not warranted, it must still notify the organization.)

While the scientific and technical body and other nations and organizations can comment on the EIA, the COP cannot stop an activity on the high seas that it deems potentially harmful. That remains the decision of the national government. “That was one of the contentious issues and compromises that were made at the last minute during the negotiations,” says Gjerde.

Some observers have questioned whether companies are looking to countries with less stringent environmental assessment requirements or that lack the resources to conduct comprehensive assessments. Payne says that while most nations have environmental assessment laws, those procedures may need to be changed to require EIAs for activities proposed for the high seas.

“That’s something the treaty tries to address by setting basic standards and guidelines for EIAs and transparency measures,” Payne says. She points out that another provision, called “capacity-building” in the UN argot, obliges developed nations to provide resources and support to developing countries so that they can start procedures to enforce the treaty.

Marine Genetic Resources

Businesses and countries have long viewed the ocean as a potential source of riches from bioprospecting marine organisms for the manufacture of novel drugs, cosmetics and other products. Under the treaty, marine genetic resources – which include sea molecules, bacteria and algae – are designated as the common heritage of humanity, the riches of which are to be shared among nations.

At least six months before launching an expedition to collect marine genetic resources, organizers must submit their objective, what they intend to collect, and other mission details to a publicly accessible clearinghouse established by the treaty. The location of the stored specimens and their genetic sequencing data must also be provided to the clearing house, along with patent and sales information for any products derived from marine genetic resources.

How these financial benefits will be shared among nations will be determined later by the COP.

“This treaty has a very strong institutional framework,” says Currie, the international attorney. “Until now, there has not been a regular place where ocean biodiversity issues could be considered.”

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