UN High Seas Treaty Looks Set to Founder

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

A two-week long meeting, the third in a series of four substantive sessions of an intergovernmental conference of 190 member states to agree a conservation treaty to regulate the high seas under UN auspices, finished last week on August 30, without “a serious commitment”, as reported by Inter Press Service (IPS) in Is the UN’s High Seas Treaty Heading Towards Troubled Waters?

The UN General Assembly has been meeting in New York  to agree  the final text of the new treaty on marine biodiversity – first proposed nearly 20 years ago — under the UN Law of the Sea treaty, to which the US never formally acceded. Its demise was a result of Reagan administration opposition  (details of which I will not reprise here as I want to keep this post short).

As I noted in two previous posts, prospects were never auspicious for this project when it launched in 2018 (see UN to Launch Talks on Treaty to Regulate High Seas and First Set of High Seas Treaty Negotiations Concludes in New York).

I was well aware of the longstanding efforts to codify the law of the high seas, as a mentor of mine, J. Daniel Nyhart, was an intellectual father of this project.

Thus, in part in memory of Dan, I continue to follow and write about this issue – despite press coverage being sparse.

Alas, as IPS reports:

The world’s high seas, which extend beyond 200 nautical miles, are deemed “international waters” to be shared globally– but they remain largely ungoverned.

“It’s a jungle out there”, remarks one diplomat, describing a virtually lawless wide-open ocean which has steadily undergone environmental destruction, including illegal fishing and overfishing, plastics pollutions, indiscriminate sea bed mining and degradation of marine eco systems.

The Food and Agriculture Organisation (FAO) has warned that the world’s fisheries have continued to decline, with 33 percent of fish stocks “overfished,” resulting in devastating economic consequences for coastal nations and small island developing states (SIDS).


This sad prognosis is reinforced by others with a keen interest in biodiversity, as reported by Nature Wolrd News in New UN High-Seas Treaty Must Close Gaps In Biodiversity Governance:

Thousands of marine species could be at risk if a new United Nations high-seas biodiversity treaty, now being negotiated in New York, does not include measures to address the management of all fish species in international waters, not just the commercial species, warns an analysis by American, Dutch, Swiss and French researchers.

“Of the 4,018 known species of fish in the deep ocean, more than 95% are non-targeted species whose populations are not assessed by regional fisheries management organizations and are currently not being considered as part of the high-seas biodiversity to be monitored and protected under the new treaty,” said Guillermo Ortuño Crespo, a doctoral candidate at Duke University’s Nicholas School of the Environment and lead author of the new analysis.

“We are not arguing that the emerging treaty should infringe on the current management mandate of regional fisheries management organizations, but we are calling for negotiators to address biodiversity concerns for the species that are not currently being managed and are slipping through the governance net,” emphasized Patrick N. Halpin, professor and director of the Marine Geospatial Ecology Lab at Duke’s Nicholas School.
“Fisheries management and the management of overall fish biodiversity are uniquely different processes and activities,” Halpin noted.

And this despite unwarranted optimism over prospects that an agreement may be achieved, as the National Resources Defense Council enthused in this post, For a High Seas Treaty, We Need High Ambition. Indeed. I also want Santa to deliver a pony for Christmas.

Over to IPS:

Peggy Kalas, coordinator of High Seas Alliance told IPS each of the primary elements has difficult issues but, likely, the Marine Genetic Resources (MGR) discussion and questions surrounding access and benefit sharing are one of the most difficult.

Asked if the proposed treaty will ensure a comprehensive [Marine Protected Area] network to protect the rich biodiversity in the world’s oceans, she said: “Certainly, one of our key ambitions for this agreement, is to provide a framework for the establishment of well-managed and representative network of MPAs.”

On small island developing states (SIDS), most of whom are threatened by sea-level rise triggered by climate change, Kalas said: “A global approach and decision-making body will help smaller states with less capacity, if acting alone, to protect areas beyond national jurisdiction (ABNJ).”

Dr Sandra Schoettner of Greenpeace’s Protect the Oceans Campaign “said the stakes are even higher now for the final stage of the negotiations”, according to IPS. Alas, having watched the US punt on oceans regulation for the last four decades – despite the work of US academics in initially establishing the overall framework for such regulation  – I am pessimistic that prospects  this time will be different, and the UN can foster an agreement, despite the obvious and overdue need to do so.

As IPS reports:

In 2020, world leaders need to deliver a Global Ocean Treaty that allows the creation of fully protected ocean sanctuaries in international waters.

In order to seize this historic opportunity to safeguard our oceans for future generations, Greenpeace urges heads of states and ministers to commit to a strong Global Ocean Treaty – so that delegates in the negotiating room have a clear mandate to advocate progress instead of just managing defeat, [Dr Schoettner] noted.

“The solution is right in front of us, now all we are missing is the political will to give a chance to our oceans and to the people who rely on it to survive.”

Yet while the solution may be apparent, too many interests benefit from the current status quo. And unfortunately, the political entities that might have been expected to play a role in protecting the global commons, including the US and EU, have failed to deliver. Norway, Russia, and South Korea are reluctant to sign on to any new agreement, and the commercial fishing industry, as well as other ocean extractive industries, are also not enthusiastic, according to Gizmodo, The Lawless High Seas May Soon Gain Protections Under a Groundbreaking Ocean Treaty.

Meaning, unfortunately, that the oceans will continue to die.

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