Some responsibility of caring for ocean life is assigned to nations with coastlines whose borders extend into the sea. However, the governance of the ocean and its biodiversity is highly complex and influenced by multiple organizations, regional, national and international. 

The United Nations Convention on the Law of the Sea (UNCLOS) can be considered the primary international legal norm for global ocean governance. It sets out a legal order for the seas and oceans, and promotes the peaceful use and the equitable, efficient utilization of its resources, as well as the protection of the marine environment. 

UNCLOS defines sovereign states’ rights and responsibilities with respect to their use of the world’s oceans, and defines which areas are within and beyond national jurisdiction.

National jurisdictions include the territorial seas, the exclusive economic zone (EEZ), and/or the continental shelf of the coastal nations – here is an infographic with more details. (Coastal states exercise sovereign rights over the EEZ and the continental shelf to exploit and explore natural resources.)

More than half of the entire ocean (64%) is international waters, which belongs to no one and everyone at the same time. These are called areas beyond national jurisdiction (ABNJ). (ABNJ which lie beyond the EEZ of coastal states comprises the high seas, referring to the water columns and the free-swimming species they contain, and the Area, referring to the seabed, ocean floor and subsoil (minerals, oil, etc.) beyond the limits of the continental shelf.)

Therefore, anyone may access the resources living in the high seas, but no one is responsible for protecting them or making sure the resources are used sustainably. These types of resources are often referred to as the “global commons”. 

On an equally crucial note, marine species’ habitats exist regardless of human-made boundaries such as EEZs and ABNJ, and many species move freely across the globe using both territorial, coastal waters, and the high seas. 

Therefore, ocean management must approach the world’s ocean as a single ecosystem. It is critical to elaborate an effective, unified legal framework to protect biodiversity in ABNJ.

Having so many regulations, agreements, and conventions relating to biodiversity conservation in ABNJ only makes the matter more complex, fragmented, and difficult to manage and monitor. This fragmented set of regulations does not provide international, comprehensive or adequate protection for biodiversity beyond national jurisdiction. In joining AYO’s efforts, you can contribute to rectifying this situation.

The United Nations Convention on the Law of the Sea – UNCLOS 

In addition to setting the foundation for the rights and responsibilities of sovereign states regarding the world’s oceans, UNCLOS provides the freedom of the high seas, thereby allowing open access to the high seas for all states. 

This includes the right to conduct scientific research for peaceful purposes. At the same time, the states are obliged to protect the environment and conserve living resources through national, regional and international cooperation. 

However, the boundaries and limitations of this obligation have never been defined and no management criteria have been set.

In the ABNJ, the deep seabed and its resources, unlike the high seas, are regulated as the “common heritage of mankind” under UNCLOS. It is explicitly stated that the “exploration and exploitation [of the common heritage of mankind] shall be carried out for the benefit of mankind as a whole”. 

States have a general obligation to protect and preserve the marine environment under Part XII of UNCLOS according to which they are not merely expected to show restraint regarding environmental harm, but they also have to take positive steps to protect the environment.

However, not every state has signed UNCLOS, such as the US for example. For non-party states, UNCLOS represents customary international law, which means that they are legally not bound by the regulations set out under UNCLOS. 

The 1992 Convention on Biological Diversity (CBD)

The 1992 Convention on Biological Diversity (CBD) sets a legal framework for the conservation of biodiversity and the sustainable use of its components. These Conventions are the main framework treaties with legally binding power for biodiversity conservation. However, the CBD, for example, provides a wider framework for the protection of all aspects of biodiversity. 

The Convention also includes provisions on the high seas but does not specifically focus on their management.

Additional Environmental Agreements

Further key environmental arrangements are the UN Fish Stocks Agreement and the International Convention for the Prevention of Pollution from Ships (MARPOL). These environmental agreements also recognise the need for the protection of biodiversity, but often leave the ABNJ largely unregulated. 

The OSPAR Convention (1992) under which the world’s first network of MPAs in ABNJ was established is a good example for regional regulation (Rochette et al. 2014). 

The Antarctic Treaty System (1959) serves as an additional regional agreement focused on the protection of marine biodiversity. 

The AYO is helping to define a unified legal framework that will help resolve all these matters – your voice in this process can be a great asset to the cause. 

The rapidly evolving ocean technologies have led to unprecedented pressures on the ocean, further amplified by increasingly prevalent anthropocentric changes to the Earth systems (e.g., climate change, loss of biodiversity, toxic waste, pollution of air, water and soils).

The loss of biodiversity on the planet has only become more severe and obvious in recent decades (IPBES, 2019). This loss is also occurring in the world ocean (Murawski, 2007;  Palumbi, 2009; Worm, 2006; Halpern et al., 2019; IPCC, 2019; Merrie et al., 2014; United Nations, 2015; Watson and Tidd, 2018) and includes the loss of species not yet known to science in the deep sea (Danovaro, 2008). Oceanic biodiversity loss renders ecosystems less resilient to impacts of climate change, disease, invasive species, and overexploitation (UNEP, 2006). Human activities in the high seas can significantly impact ocean biodiversity, and must therefore be managed through an overarching legal framework to provide a realistic opportunity for the conservation and sustainable use of biodiversity in ABNJ.

In 2015, after review of existing protections for ocean life in international waters, a UN working group concluded that existing protections were not sufficient to protect biodiversity. Currently, there are no legally binding mechanisms for establishing marine protected areas in the high seas, or for undertaking environmental impact assessments in order to conserve and sustainably use any high seas resources. In 2017 the UN General Assembly (resolution 72/249) officially decided to create an international agreement to achieve the goals of “long-term conservation and sustainable use of marine resources in areas beyond national jurisdiction” (“BBNJ”). 

The lack of a comprehensive legal framework protecting marine biodiversity in ABNJ in addition to the challenges of the 21st century, such as increased human activities and climate change highlights/illustrates the need for improved marine management. As such, the Open-Ended Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS) has initiated the process by underlining the urgency of developing norms and mechanisms that aim towards the protection of vulnerable ecosystems, including areas beyond national jurisdiction. 

The BBNJ instrument is widely seen as a historic opportunity to fill regulatory and governance gaps with respect to the conservation and sustainable use of marine biodiversity in ABNJ by creating a just and sustainable framework for the environment and humankind.

The need for better governance of human activities in the ocean space to guarantee the sustainability of contributions of the ocean to people has been widely recognized for years. 

In light of that need, the United Nations General Assembly (UNGA) appointed an ad hoc, open-ended, informal working group (BBNJ WG). After conducting extensive research, the BBNJ WG recommended in its 2011 report that the UNGA initiates a process to tackle this issue. Among others, the report suggested the development of a multilateral agreement on marine biodiversity in areas beyond national jurisdiction under UNCLOS.

The report also identified four substantive areas to be addressed throughout the process, which are:

1. Area-based Management Tools (ABMTs), including Marine Protected Areas (MPAs),
2. Marine Genetic Resources (MGRs), including benefit-sharing issues,
3. Environmental Impact Assessments (EIAs),
4. Capacity building and transfer of marine technology (CBTT).

The final BBNJ WG report was submitted in 2015. On its basis, the UNGA convened a process to develop an international legally binding instrument (ILBI) under the UNCLOS on the conservation and sustainable use of BBNJ.

The negotiations on the draft text of the future international agreement under the auspices of the UN are held in four scheduled Intergovernmental Conferences (IGCs). Three of these conferences have been held from fall 2018 to fall 2019. 

The final IGC has been postponed from spring 2020 due to the worldwide COVID-19 pandemic but is now scheduled for fall 2021. 

Therefore, the General Assembly decided to continue the dialogue on the four elements through intersessional work in the time period from September 2020 to March 2021. These sessions were enabled by the facilitators of the informal working groups that were established by the Conference on the different negotiated issues. This intercessional work, however, was not set up to replace the negotiations but rather to keep the momentum going and allow the clarification of positions as well as to enhance mutual understanding.

Although many UN members and independent non-governmental organizations (NGOs) have been involved in the process of forming an international BBNJ agreement, the process lacks meaningful youth involvement. 

Why? Because the BBNJ process is large in scope, intricate, and difficult to navigate. To Help address the issue, the Arctic Youth Network Oceans Working Group (AYO) was launched in 2020 with a temporary focus on this specific and significant task: to study the BBNJ process and make it more accessible and engaging for young adults.

Feel free to join the cause and become an AYO member today