Nearly two-thirds of the ocean lies outside any country’s national jurisdiction or control. These are the high seas – the waters beyond any country’s Exclusive Economic Zone – and the deep seabed area beyond their continental shelves. They contain an exceptional level of biodiversity, from pelagic fish like tuna to deep-sea sponges, including what scientists estimate to be over 2 million yet-to-be identified species.
We use some species directly, particularly fish, and others can be impacted indirectly by human activities. There are already rules for taking or using resources from the high seas and deep seabed, including for fishing, shipping and mining.
However, the pressures on marine biodiversity from these activities and new uses are expected to increase, as are the impacts of climate change and ocean acidification. United Nations (UN) countries decided further rules were needed to deal with these pressures in a coordinated way.
Negotiating a new UN treaty
New Zealand is actively participating in negotiations towards a new UN treaty for the conservation and sustainable use of biodiversity in these areas (known as Biodiversity Beyond National Jurisdiction, or BBNJ). The new treaty will come under the umbrella of the UN Convention on the Law of the Sea (UNCLOS).
These negotiations are an important opportunity to fill a number of gaps in the international legal framework governing this biodiversity and help address emerging threats to and uses of biodiversity. The new treaty will not apply to New Zealand’s own marine areas, only to areas beyond any state’s jurisdiction.
The negotiations for a new BBNJ treaty will focus on four thematic areas and some cross-cutting issues:
Marine genetic resources
Marine genetic resources (MGRs) are the genetic material of marine organisms that may have use or value for humanity. Marine scientific research into MGRs could help to develop new medicines or compounds for use in food or industrial processes. There is currently no specific legal regime for MGRs under UNCLOS.
Questions for negotiation will include whether to define MGRs (and if so whether to use the same definitions as are used within national jurisdiction, for example in the Convention on Biological Diversity and its Nagoya Protocol), whether access to MGRs should be regulated (and if so how) and whether benefits derived from the use or commercialisation of MGRs should be shared (and if so with whom and how).
Area based management tools including marine protected areas
Area based management allows activities to be controlled in a comprehensive and integrated manner. It can provide a higher degree of protection to an area than its surroundings by more stringent regulation of one or more human activities (for example, fishing, shipping or mining). There are various types of area based management tools, ranging from sector-specific (which regulate one activity e.g. fisheries closures), to cross-sectoral (which regulate all human activities in that area).
Marine protected areas are a specific type of tool, generally used for biodiversity conservation purposes. There is currently no global mechanism to establish multi-sector tools or marine protected areas on the high seas.
To establish effective area-based management tools, including marine protected areas, the new treaty will need involvement from the existing bodies that regulate activities in those areas. In the Pacific region, these could include the International Maritime Organisation (for shipping), the International Seabed Authority (for deep seabed mining beyond national jurisdiction), several regional fisheries management organisations, and the Convention for the Protection of Natural Resources and Environment of the South Pacific Region (known as the Nouméa Convention).
Questions for negotiation will include the objectives of such tools or protected areas, how to draw on the expertise of existing bodies, and how to allocate roles and responsibilities between any new global body established by the new treaty and existing bodies.
Environmental impact assessments
In some circumstances, UNCLOS requires environmental impact assessments (EIAs) to be conducted for activities in the high seas. However, there is little guidance in UNCLOS on when activities trigger the need for an EIA, the type and amount of information required for EIA reports or how the cumulative impact of activities can be assessed and managed.
Questions for the negotiations include the respective roles of global and regional bodies in EIA processes, whether rules or guidance should be developed on when activities trigger the need for an EIA, the type and amount of information to be included in EIAs, how to draw on existing EIA practices nationally, regionally and in sectors such as seabed mining and deep sea fishing, and whether the new treaty should cover strategic environmental assessments.
Capacity-building and the transfer of marine technology
Many developing states wish to build their marine scientific and technological capacity so they can participate fully in the conservation and sustainable use of marine biodiversity. This capacity is also required generally to ensure comprehensive information on marine biodiversity is available. The new treaty will look at how to promote this capacity-building and transfer of technology to developing states, building on the existing provisions in UNCLOS. Questions for negotiation will include what capacity-building and transfer of marine technology might look like for areas beyond national jurisdiction, and how to encourage private sector involvement.
The treaty will also need to address some issues that cut across the four thematic areas. For example, will the treaty establish a new institution such as a Conference of Parties, and if so what would its functions be? What would its relationship be with existing bodies that manage activities related to biodiversity beyond national jurisdiction, such as fishing, shipping and mining?
Another cross-cutting issue is operationalisation. How will obligations under the treaty be implemented, monitored and reviewed? What kind of financial resources are needed under the treaty, and should a financial mechanism (voluntary or otherwise) be established? How can states ensure that the new treaty and any institutions it establishes are cost-effective?
A further question is the role of traditional knowledge in the conservation and sustainable use of marine biodiversity. Unsustainable use of high seas marine biodiversity can impact on biodiversity within national jurisdiction, including species and resources of importance to Māori and other indigenous peoples. Given the limited scientific knowledge of marine biodiversity in the high seas and deep seabed, could the new treaty facilitate consideration of mātauranga Māori and other indigenous traditional knowledge to inform our knowledge of BBNJ (and if so, how)?
Find out more
You can find out more about the negotiations at the UN's website(external link).
Further information on the most recent round of negotiations can be found in the Earth Negotiations Bulletin(external link). This reporting is provided by the International Institute for Sustainable Development and does not reflect the views of the New Zealand Ministry of Foreign Affairs and Trade or the New Zealand Government.
Country statements, including New Zealand's, can be found on UN Papersmart(external link).