Governing the ungoverned 50% of the planet
Essam Yassin Mohammed reports back from the first round of a UN preparatory meeting to create an agreement on the sustainable use of marine biodiversity in the high seas.
Last year, the United Nations general assembly adopted a resolution stressing "the need for the comprehensive global regime to better address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction."
UN member states have just completed the first of four preparatory meetings in New York to develop this global regime. While some progress was made, critical challenges remain.
Historically, control over nations' territorial waters was at best only vaguely defined until the 17th century when the concept of "cannon shot rule" was conceived. Nations were able to control their coastal areas based on the reach of their cannons – roughly up to three nautical miles.
It was only in 1982 that territorial waters were codified in the United Nations Convention on the Law of the Sea (UNCLOS), providing a 12 nautical mile (nm) territorial sea, a 24 nm contiguous zone, and a 200 nm exclusive economic zone (EEZ). Today, the majority of nations have ratified the agreement, which is regarded as one of the most important milestones in the sustainable management of marine and coastal resources.
Why a new legally-binding instrument?
The 1982 agreement fell short of defining regulations beyond the EEZs – the 'high seas' or 'areas beyond national jurisdiction' (ABNJ). Essentially, this meant 50 per cent of the Earth's surface was a legal no man's land.
This wasn't so much of a problem until recently, but technological advancements have opened up opportunities and created new threats to marine life in these areas. Increased navigation has added to underwater noise pollution (threatening ocean wildlife), and developments in seabed mining and the rush to exploit marine genetic resources by pharmaceutical companies have added to activities.
As a result, governments have agreed that a new international legally-binding instrument to end the notion of marine 'no man's land' and regulate the high seas is required.
Five danger zones
The first preparatory meeting, held between 28 March and 8 April in New York, started work on this new international legally binding instrument under the existing Convention. Despite a clear desire to strike a deal as soon as possible, five issues have surfaced that could potentially jeopardise an agreement.
- Scope of marine genetic resources
Defining what constitutes marine genetic resources (MGRs) is perhaps the trickiest part of the debate. The G77 plus China, the Africa Group and Least Developed Countries (LDCs) are rightly of the opinion that MGRs should include fish, not just micro-organisms. Other countries, including Japan, disagree.
Bioprospecting activities – "the act of searching for previously unknown organisms or genes that can form the basis of a new biological product, such as a drug or cosmetic" – are also contentious. Bioprospecting is expensive, and that means only a handful of high-income countries have benefited so far. This has raised equity issues among UN member states.
As the head of Bangladeshi delegation, Kurshed Alam, eloquently argued, "seabed resources and other organisms both on seabed and throughout the water column should be regarded as common heritage of mankind."
- Equitable benefit sharing
How much nations benefit from both extractive and non-extractive economic activities in the high seas mainly depends on their financial and technical capacities. Countries with limited financial and technical capacities are not able to fully benefit from the opportunities now available, but argue that the benefits should be shared equitably.
They are asking the Secretary General of the UN to establish "a special voluntary trust fund for the purpose of assisting developing countries, in particular the least developed countries, landlocked developing countries and small island developing states" (section 5 of resolution 69/292 ). How this will work remains to be clarified.
- Technology transfer
The related issue of 'technology transfer' was also much discussed. This is not a new issue, but its success has been limited. While this can be partly explained by political instability, a lack of public acceptance and capacity issues, unfavourable trade, exclusionary financial systems and property right regimes have also hampered progress.
There is a need to map existing international instruments that enable or disable technology transfer, otherwise 'technology transfer' may end up as no more than an aspiration.
- Environmental impact assessment
The risk to ecosystems from the growing number of economic and extractive activities in the high seas makes environmental impact assessments (EIA) a crucial tool for policymakers. But should an EIA only be required for activities in the high seas, or should it also apply to activities within national jurisdictions?
Some also argue that EIAs should also include land-based activities that affect marine environments; e.g. industrial effluents; carbon dioxide emissions leading to ocean acidification, and so on.
- Monitoring and enforcement
Monitoring, policing and enforcing any agreement for the high seas is going to be a big challenge. Most developing countries lack the capacity to regulate activities even in their territorial waters.
Will a global enforcement agency be established for the high seas or will technological innovations make remote policing a more cost effective option? Either way, a legally-binding instrument cannot be fully implemented without effective monitoring and enforcement.
Is a deal possible?
These are just some of the challenges that are likely to make the negotiations bumpy. Other issues include dispute avoidance and resolution, financing, and institutional set up.
But I still remain optimistic that we will achieve a historic deal in the next five to 10 years. This is about sharing 50 per cent of the planet with 100 per cent of the world population. Equity must be at the core.