Amado S. Tolentino, JR.: Marine areas beyond national jurisdiction: Where to?

Marine areas beyond national jurisdiction: Where to?
Amado S. Tolentino, JR. January 4, 2020 https://www.manilatimes.net/2020/01/04/opinion/columnists/marine-areas-b...

NEARLY two-thirds of the ocean lies outside any country’s control or national jurisdiction. These are the high seas or waters beyond any country’s exclusive economic zone and the deep seabed areas beyond their continental shelves. Collectively, these are known as marine areas beyond national jurisdiction (ABNJ).

Expectedly, the old, reliable National Geographic was the first to expose to the world the “wonders” of marine areas beyond the national jurisdiction of any state. The areas include deep-sea trenches, seamount and hydrothermal vents, examples of which abound in our Asia-Pacific region. 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. Looking at the colorful and often unusually shaped species makes one anticipate that somewhere are mermaids and other undersea creatures of folklore or fantasy.

Marine ecosystems provide resources needed for a healthy environment and human well-being. They are a source of food and help create products for human consumption. They provide a means of recreation and opportunities for research and education. Millions of people rely on marine resources for their livelihood through employment in the fishing industry. It is estimated that marine biodiversity provides a third of the earth’s oxygen and helps control the global climate.

Be that as it may, the open ocean beyond national jurisdiction is under pressure from fishing and fish-related activities as well as mineral resource extraction brought about by tremendous improvements in fishing and mining technology. The problem is not only about over-exploitation of deep-water fishing grounds that host endemic species but extends to disturbance of the seabed and benthos by bottom trawling. In particular, sea mounts as submerged inactive volcanoes where fish aggregate, have been found to lower productivity and likely needs decades or even centuries to recover.

In addition, these resources are vulnerable to proposals for deep seabed disposal of pharmaceuticals, toxic industrial wastes and high-level radioactive wastes.

Open access to ABNJ
Indeed, much marine genetic resources that may have value or use for humanity, i.e., new medicines or compounds for use in food or industrial processes are among the concerns of the current efforts towards a new treaty for the conservation and sustainable use of biodiversity in the marine areas known to be beyond jurisdiction of any state.

The last decade saw much loss of marine biodiversity due to uncontrolled human activities, leading to climate change as well as growing commercial interest in previously unexplored areas. From an economic and socioeconomic view, marine biodiversity beyond areas of national jurisdiction are resources shared by all States. Access to those resources is open to everyone yet there are limited incentives to conserve and sustainably manage those resources.

Current efforts at conservation of areas beyond national jurisdiction dates back to June 19, 2015 when the United Nations General Assembly began the process for an international legally binding instrument under the umbrella of the United Nations Convention on the Law of the Sea (Unclos). A preparatory committee has been created and is at present conducting regular international conferences to make recommendations to the General Assembly on the components of a draft text of a multilateral environmental agreement. The objective is to improve governance structures of the open seas, in areas beyond any country’s jurisdiction.

International law on conservation of marine areas
Existing international legal instruments that lend support to conservation of marine areas beyond national jurisdiction include, but is not limited to:

– Unclos (1982). Its support for creating marine protected areas on the high seas can be inferred from Article 192, which says, “States have the obligation to protect and preserve the marine environment.” Measures to be taken are those necessary to protect “rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life” under Article 194 (5)

– Convention on Biological Diversity or CBD (1992). The objective of the CBD is the conservation and sustainable use of biological diversity for the present and future generations (Preamble and Article 1). The provisions of the convention are the most specific international law source for the creation of marine protected areas beyond national jurisdiction although the activities, which relate to ABNJ clearly require further implementation through interested State Parties and international organizations with existing competence in those areas

– International Maritime Organization Guidelines for the Designation of Special Areas and the identification of Particularly Sensitive Sea Areas (1992). The “particularly sensitive sea areas” concept is a unique concept devised by the International Marine Organization (IMO) to provide protection for environmentally sensitive areas, both within and beyond national jurisdiction, from the harmful effects of international shipping activities. Particularly sensitive areas were defined as “areas which need special protection through action by IMO because of their significance for recognized ecological or socioeconomic or scientific reasons and which may be vulnerable to damage by maritime activities.” In practice, these areas include areas to be avoided designations, traffic separation schemes, voluntary or compulsory pilotage and vessel traffic services. The protective measures do not affect other uses of the areas such as resource exploitation, marine scientific research, military activities and tourism.

(While the International Whaling Convention for the Regulation of Whaling [1946] covers extensive areas of ocean space, it relates to only one species [whales], relies on traditional flag state jurisdiction for enforcement and does not address links between the convention provisions and other conventions or customary international law principles applicable to open space.)

Focus of ABNJ negotiations
The current focus for a new treaty on marine areas beyond national jurisdiction revolve around:

– Marine genetic resources. There is no specific legal regime for marine genetic resources under Unclos. Questions include whether access to genetic resources will be regulated and whether benefits derived from their use and commercialization should be shared and if so, with whom and how?

– Area-based management tools including marine protected areas. The tools range from specific (regulate fisheries) to cross-sectoral, which regulate all human activities in the area. To be effective, involvement of existing bodies that regulate activities is imperative, e.g., IMO for shipping and the International Seabed Authority for deep seabed mining

– Environmental Impact Assessments (EIA). The Unclos requires environmental impact assessments for activities on the high seas. Concerns in the ABNJ treaty negotiations are about the type and amount of information to be included in the EIA and how to draw existing EIA practices, nationally, regionally and in sectors such as seabed mining and deep sea fishing

– Capacity building and transfer of technology. An issue which surfaced in recent meetings is what capacity building and transfer of marine technology might look like for ABNJ and how to encourage private sector involvement

– Cross-cutting issues. How will obligations under the treaty be implemented? What kind of financial resources are needed under the treaty? Could the new treaty facilitate consideration of indigenous traditional knowledge to inform our knowledge of ABNJ and if so, how?

Within national jurisdictions, an excellent example of accommodating ocean uses in marine protected areas is that of the Great Barrier Reef in Australia for tourism, research and education purposes. Beyond national jurisdiction, designation as a marine-protected area has to accommodate a wide range of ocean uses such as navigation, overflight, fisheries and mineral resource extraction conducted in an environmentally sound manner.

Scientific evidence demonstrates that the great natural resources of marine biodiversity in areas beyond national jurisdiction are being affected by human activities that have potential to significantly degrade the precious resource. To conserve the treasure trove of biodiversity within marine ABNJ, the international community should enhance the integration of existing legal instruments to provide an effective international law framework (i.e., rules, standards, guidelines and obligations), which protects the deep sea environment with the end in view of promoting human health and supporting economic growth, among others, for sustainability.