Greenpeace UK – Written evidence (UNC0025)

Bringing UNCLOS into the 21st century through a more equitable, people and nature centered, climate change responsive Global Ocean Treaty

New uses, knowledge and circumstances

Human uses and our knowledge of the ocean are growing at a rapid pace, expanding deeper and further offshore, including in areas beyond national jurisdiction (ABNJ, hereinafter also referred to as “global oceans”). These include the high seas and the seabed Area[1] and cover nearly two thirds of the world’s ocean, approximately half of the planet’s surface. These “global commons” do not belong to any single nation, but are every nation’s responsibility to protect for the benefit of present and future generations.[2] The regime governing these waters is based on the United Nations Convention on the Law of the Sea (UNCLOS)[3] that was negotiated in the 1970s when our knowledge and understanding of the ocean and ocean processes were different from today. Terms like “biodiversity” or “sustainability” are not even mentioned in the Convention. And hydrothermal vents, for instance, with their chemosynthetic life were only discovered in 1977.[4] We now know much more about marine biodiversity and ecosystems and about the critical support the ocean provides to our whole planet, by helping regulate our climate, contributing to food security and building ecosystem resilience.[5] We also have a better understanding of the ecological connectivity between ABNJ and coastal waters, and how impacts on high seas and deep seas ecosystems will be felt across jurisdictional boundaries, including by coastal communities, and the need to protect such connectivity.[6] 

Until the last century, most of the global oceans were too far, too deep, and too dangerous to allow extractive activities such as fishing or mining to take place. Consequently, much of these waters were de facto ocean sanctuaries, off-limits to human uses. But as technology is pushing human activities further and deeper offshore, the global oceans are becoming an increasingly crowded space under growing pressure from the cumulative impact of human activities. Such pressure, combined with the impacts from climate change, ocean acidification and pollution, is threatening the health of the ocean, the billions of people that depend on it for their livelihood and food security, undermining its capacity to perform its vital functions and to build resilience to existing and future impacts.[7]

Need for a more integrated approach to ocean management

New knowledge and changing circumstances require urgent action and a more integrated and ecosystem based approach to ocean management.

The legal regime under UNCLOS has favoured a sector-by-sector approach, whereby the adoption of protective measures in the global oceans is left to States acting through different sectoral organisations, for whom conservation is not a primary focus. Such a complex web of organisations and agreements is responsible for managing specific activities in ABNJ without the ability to address cumulative impacts from other sectors or stressors like climate change. It has now become clear that because of their interaction, managing single impacts in isolation is insufficient and that a renewed emphasis on conservation is urgent.[8]

Need to fully/highly protecting at least 30% of the oceans by 2030

Marine protected areas (MPAs) are widely recognised as key tools to achieve long-term conservation of marine biodiversity and address the cumulative impacts of human activities and climate change. Scientists are telling us that MPAs, especially fully protected ocean sanctuaries off-limits to harmful industrial human activities, are the most cost-effective means to enable marine life to recover and adapt to the impacts of multiple stresses and climate change. To support people, fight climate breakdown and save wildlife we need a network of fully/highly protected areas, covering at least 30% of the oceans by 2030, both within and outside national jurisdiction.[9] Increasingly governments around the world are committing to the 30x30 target, in line with scientific recommendations.

However, for the vast majority of the global oceans there is not yet a legal mechanism to create ocean sanctuaries and deliver effective protection from cumulative pressures. As a result, currently only 1% of the global oceans are effectively protected.

The current regime is unfit for purpose, is unfair and unequal

There is no specific framework or global process under UNCLOS for the establishment of MPAs and no framework for assessing the cumulative impact of new and emerging uses of the high seas. The Convention contains some general obligations to protect and preserve marine environment, including rare or fragile ecosystems and habitats (Articles 192 and 194.5); the duty to conserve and manage high seas marine living resources (Articles 117-120); and the duty to cooperate on a global and, as appropriate, on a regional basis, directly or through competent international organizations, in the adoption of environmental protection rules and standards (Article 197). However, it does not expressly incorporate modern principles of ocean governance, such as transparency, accountability, precaution, or ecosystem based management; nor it provides an institutional framework, clear guidance, or specific rules to enable States to collectively implement these general duties. UNCLOS, moreover, places strong emphasis on the traditional high seas freedoms to fish, navigate, or conduct marine scientific research, although these must be exercised under the conditions laid down in the Convention, including the general obligation to protect the marine environment mentioned above. But as the deteriorating state of the marine environment and the insufficient progress in meeting global conservation targets suggest these general provisions are not enough to encourage collective efforts toward conservation.[10]

The current regime governing the global oceans is not only unfit for purpose but it is also profoundly unjust and unfair. Only a handful of nations are responsible for the high seas exploitation, for instance, ten developed countries account for 71% of high seas fishing catches and 98% of marine genetic resources (MGR) patents. On the other hand, developing countries, whose large coastal populations depend heavily on healthy marine ecosystems for food, livelihoods and jobs, and resilience to climate change are the ones most affected by high seas degradation. This brings tension between the “high seas freedoms' to use ABNJ, as underpinned by UNCLOS, and the growing recognition of the global benefits of well functioning ocean ecosystem services and of the need for their conservation in the common interest. Moreover, there are no rules under UNCLOS for accessing marine genetic resources (MGRs) used for pharmaceutical, nutraceutical, industrial and other purposes and sharing of the benefits of the MGRs obtained in the global oceans. With no overarching framework to deliver coherent and comprehensive protection, biodiversity protection and equity have been left out.

Lack of monitoring, control and enforcement in high seas areas, coupled with overfishing, both in coastal areas and on the high seas, that is forcing vessels to fish further offshore and for longer periods of time, have also increased the possibility of exploitation of migrant fishers, with never-ending complaints of injustice and abuse.[11] Besides alleged labour violations, overfishing and illegal, unreported and unregulated (IUU) fishing place a huge burden on marine ecosystems. 

Now more than ever, it is time to fill these gaps and bring UNCLOS back into the 21st century.

The Global Ocean Treaty is an historical opportunity to modernise UNCLOS and reflect the needs and challenges of the 21st century

Rather than reopening the delicate balance achieved in UNCLOS, governments have the unique opportunity to address existing weaknesses in global ocean governance and bring the Convention back to the 21st century via a new Implementing Agreement under UNCLOS for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (hereinafter referred as Global Ocean Treaty).[12][13]

These are probably going to be the last Law of the Sea negotiations for generations to come and we need to get it right or else we will not have another opportunity to change the status quo. To go beyond the status quo, the Global Ocean Treaty must:

●            Set up a global mechanism for the establishment of a network of well managed ocean sanctuaries in the global oceans, thus enabling the delivery of “30x30” in line with scientific  recommendations and growing political commitments. Such a mechanism must empower the Conference of Parties to establish MPAs and adopt concrete measures to achieve their objectives, thus avoiding the creation of  empty “paper parks” or lines on a map, which are only protected on paper.

●            A global process to conduct EIAs before activities are allowed to take place in the global oceans, regardless of where the activity originates. This is crucial to ensure that global oceans outside MPAs are sustainably managed.

●            Provide for fair and equitable access and sharing of benefits from marine genetic resources and for effective capacity building, transfer of marine technology and reliable resources mobilization to enable implementation. Building long term capacity in countries is key to allow more inclusive and diverse participation in ocean protection and to underpin effective conservation and management.

●            Do not exclude fishing or any other activities that are regulated by an existing body, acknowledging that the Treaty will not replace such bodies, but strengthen and complement their efforts to address multiple pressures.

●            Set up a robust institutional framework to drive implementation and effective decision-making mechanisms that will not allow single states to block or delay decisions, as it occurs in many existing regional frameworks.[14]

The scale of the biodiversity and climate emergency we are facing calls for urgent action. After discussing BBNJ for over a decade, governments at the UN are at the final stage of the negotiations. There has been sufficient time to discuss and deliberate, and more time will not bring new solutions, but only unnecessary delays. An ambitious Global Ocean Treaty must be agreed as early as possible in 2022, with the UK Government clearly supporting a framework that can create and effectively manage protected areas (not deferring to existing bodies that do not have the mandate or track record of safeguarding marine biodiversity) in order to create a global regime that puts people and nature at its heart and contributes to a fairer and more equitable international order.

Deep Sea Mining

When UNCLOS was negotiated, the prospect of deep sea mining was a distant possibility and extremely little was known about deep sea ecosystems ecology. As deep sea mining is becoming a reality, scientists warn that this industry would cause severe and potentially irreversible damage to the deep ocean and to the marine life that calls it home.[15] Additionally, mining could damage the natural processes that store carbon and make the climate emergency even worse. 

Established under the UNCLOS (Art. 145) the International Seabed Authority (ISA) must ensure effective protection for the marine environment from harmful effects which may arise from mining activities and guarantee that such activities in the Area are carried out for the “benefit of (hu)mankind” (Art. 140). Yet the ISA’s institutional structure and decision-making processes remain inadequate to ensure effective protection for deep sea biodiversity. Issues include lack of transparency;  lack of a Scientific Committee to inform its decisions; lack of mechanisms for ensuring compliance with environmental regulations; conflict of interests[16] as the ISA is founded by  revenues from issuing mining contracts, just to mention a few.[17]

Meanwhile, as technology developed, countries and contractors have started exploring the deep ocean for minerals. The ISA has granted a deep-sea mining exploration contract for every application it has received, amounting to 30 contracts, covering some 1.3 million square kilometers of seabed.[18] The Authority is in the process of finalising a set of exploitation-phase regulations so that commercial operations can begin. And to make things even worse, the Pacific Island of Nauru triggered last June the so-called “two-year rule”, threatening to rush the start of this destructive commercial deep seabed mining.

Key reforms are needed to make the ISA fit for purpose and in the meantime a moratorium on deep-sea mining must be put in place.

At the same time it is critical that governments establish a Global Ocean Treaty as soon as possible in 2022 that could lead to ocean sanctuaries around the world, free from harmful human activities, like deep sea mining, instead of opening up a new frontier of environmental destruction. 

Received 12 November 2021

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